text:
    Joanne K. CESSAC, and Hal A. Airth, in his Capacity as the Personal Representative of the Estate of Sally K. Christiansen, Appellants, v. Marcia STEVENS; Sharon Peeples; Christopher Evans; Morgan Stanley Trust, N.A., as Co-Trustee of the Stanton P. Kettler Testamentary Trust; Northern Trust, N.A., as Co-Trustee of the Stanton P. Kettler Inter Vivos Trust and Trustee of the Stanton P. Kettler Irrevocable Inter Vivos Trust; Peter Kettler, As Co-Trustee of the Stanton P. Kettler Testamentary Trust and Stanton P. Kettler Inter Vivos Trust; and Orlando Pisegna III, Appellees.
    No. 1D12-5834.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2018.

      George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison, for Appellants.
    Adam L. Morrison and Ernest A. Sellers of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellee Marcia Stevens.
    No appearance for other Appellees.
   WETHERELL, J.

In this probate case, Appellants seek review of an order determining that the assets in three trusts of which Sally Chris-tiansen (the decedent) was a beneficiary are not the property of the decedent’s estate because her will failed to properly exercise the powers of appointment granted by the trusts. Finding no error in the trial court’s ruling, we affirm.

The decedent died in January 2011. Her will devised $5,000 to Appellee Sharon Peeples and devised “the rest and remainder of [her] estate, both personal and real property” to Appellant Joanne Cessac. The will also included a provision stating:

Included in my estate assets are the STANTON P. KETTLER TRUST, FBO, SALLY CHRISTIANSEN, under will dated July 30, 1970, currently held at the Morgan Stanley Trust offices in Scottsdale, Arizona, and two (2) currently being held at Northern Trust of Florida in Miami, Florida.

The will did not contain any other references to the trusts, nor did it mention any powers of appointment held by the decedent.

The trust referred to by name in the will included a provision authorizing the decedent to direct who would receive the assets in the trust upon her death. This power of appointment provided:

Upon the death of my daughter, SALLY, the Trustees shall transfer and deliver the remaining principal of this share of the trust, together with any accumulated or undistributed income thereon to or for the benefit of such one or more persons, corporations or other organizations, in such amounts and subject to such trusts, terms and conditions as my daughter may, by her will, appoint, making specific reference to the power herein granted.
If my daughter, SALLY, predeceases me, or having survived, dies without exercising the power of appointment granted herein, SALLYs share of this trust shall be divided into equal shares so that there shall be one share for each child of my daughter who is then living and one share for each child of my daughter who has predeceased her but is represented by issue.

(emphasis added).

Nearly identical language was included in the two other trusts of which the decedent was a beneficiary: the “Inter Vivos Trust” created by Stanton P. Kettler on July 30, 1970, and the “Irrevocable Inter Vivos Trust” created by Mr. Kettler on that same date. The assets in these two trusts are in the Northern Trust of Florida accounts referenced in the decedent’s will.

The decedent’s will was admitted to probate. Appellee Marcia Stevens, the decedent’s daughter, filed a petition in the probate case for declaratory judgment, construction of the will, and other relief. The petition sought a declaration that the assets in the trusts are not the property of the estate because the decedent’s will did not properly exercise the powers of appointment granted by the trusts. The effect of such a declaration would be that the assets in the trusts would be distributed to Ms. Stevens and the decedent’s son, Appellee Christopher Evans, in accordance with the terms of the trusts, rather than to Ms. Cessac.

Ms. Stevens filed a motion for summary judgment, which the trial court referred to a general magistrate. After a hearing, the magistrate issued a report recommending that the court grant the motion for summary judgment. The magistrate found Talcott v. Talcott “binding,” and based on that decision, concluded that (1) the decedent’s failure to exercise the powers of appointment in the manner directed by the trusts defeated the purported transfer of the trusts’ assets by the decedent’s will, and (2) section 782.607, Florida Statutes, did not apply because the trusts provided the manner for exercising the powers of appointment granted by the trusts and, thus, any evidence of the decedent’s intent to transfer the trusts’ assets to Ms. Cessac was irrelevant.

Appellants filed exceptions to the magistrate’s report, which the trial court overruled after a hearing. The court adopted and approved the magistrate’s report and entered a “judgment” declaring that the trusts’ assets are not the property of the decedent’s estate. The court reasoned that the decedent’s will did not include a valid exercise of the powers of appointment provided in the trusts because it “failed to reference the power of appointment in the Trusts as required by the grantor.”

Appellants timely appealed to this court. We have jurisdiction, and our standard of review is de novo. See Vetrick v. Keating, 877 So.2d 54, 56 (Fla. 4th DCA 2004).

We begin our analysis with Talcott, which appears to be the only Florida decision involving a power of appointment similar to those granted by the trusts in this case. There, a widow and personal representative of the estate of her deceased husband sought a declaration of her rights under a trust agreement executed by her father-in-law. Talcott, 423 So.2d at 952. The husband’s three children intervened, arguing that the husband had not exercised his power of appointment in the manner required by the original trust agreement. Id. The wife, in turn, attempted to offer extrinsic evidence of her husband’s intent to exercise the power of appointment provided in the trust. Id. The trust agreement required that the husband exercise the power of appointment by making a specific reference to the power in his will. Id. The husband died testate and in his will devised all of his estate to his wife without specific reference to the trust or the power of appointment given therein. Id.

The trial court in Talcott found that the husband had not properly exercised the power of appointment in accordance with the requirements of the trust and that the intervening children were therefore entitled to the trust assets. Id. The Third District, citing cases from other jurisdictions, affirmed the trial court’s decision and held that evidence of the husband’s intent to exercise the power of appointment was immaterial in light of his failure to comply with the specific reference requirement of the trust. Id. at 955-56.

The circumstances of this case differ from those in Talcott. There, the will not only failed to make specific reference to the power of appointment granted by the trust, but it failed to mention the trust at all. Here, the decedent’s will included a reference to one of the trusts by name and identified the other two trusts by reference to a location where the assets were held.

Although we agree with Appellants that Talcott is distinguishable, we find the analysis in the opinion persuasive and agree with its holding that whether a do-nee has validly exercised a power of appointment depends not on the intent of the donee, but on whether the power was exercised in the manner prescribed by the donor. Id.; accord Hargrove v. Rich, 278 Ga. 561, 604 S.E.2d 475, 477 (2004); Leidy Chems. Found., Inc. v. First Nat. Bank of Md., 276 Md. 689, 351 A.2d 129, 132 (1976); In re Estate of Schede, 426 Pa. 93, 231 A.2d 135, 137 (1967); Thompson v. Smith, 41 Colo.App. 366, 585 P.2d 319, 321 (1978).

As the Pennsylvania Supreme Court explained:

The donor of a power, inasmuch as he is disposing of his own property, may prescribe whatever ceremonies he pleases for its execution; and although these may be perfectly arbitrary, yet, being required by the creator of the power, they can be satisfied only by a strictly literal and precise performance of them.

Schede, 231 A.2d at 137 (quoting In re Price’s Estate, 27 Pa.Dist. 561 (O.C.Phila.Co.1918)). Thus, the donee’s failure to abide by the donor’s requirements invalidates an exercise of a power of appointment. See Hargrove, 604 S.E.2d at 477; Holzbach v. United Va. Bank, 216 Va. 482, 219 S.E.2d 868, 871 (1975); Schede, 231 A.2d at 137; Smith, 585 P.2d at 321.

Appellants urge this Court to adopt an equitable construction standard and construe the “specific reference” requirements in the trusts to demand only a reasonable substantive compliance. Under this theory, Appellants argue we should hold that the language in the decedent’s will substantively complied with the requirements in the trusts and, thus, the trusts’ assets became part of the decedent’s estate, passing to Ms. Cessac. In support of this argument, Appellants cite out-of-state cases that are factually distinguishable because the wills in each of those cases made at least a general reference to powers of appointment held by the donees.

In Shine v. Monahan, 354 Mass. 680, 241 N.E.2d 854, 855 (1968), for example, the settlor of a trust provided a power of appointment which required the power to be exercised “by specific reference in [the donee’s] will to the full power hereby created.” The donee’s will included a residual clause that stated, “All the rest, residue and remainder of my property, including all property of which I have the power of appointment by virtue (of) any will or testament or inter vivos trust executed by my husband, Edward O’Toole, after payment of the aforesaid legacies, I give, devise and bequeath to Margaret A. O’Toole of said Westwood.” Id. (emphasis added). The court held that the settlor’s intent was to prevent an inadvertent exercise of the power of appointment and the donee’s will evidenced an intent to exercise the power of appointment and did so effectively. Id.

Likewise in In re Passmore, 490 Pa. 391, 416 A.2d 991, 992 (1980), the donor executed a trust agreement in which he created trusts for his own benefit as well as for the benefit of the donee, his wife, and her sisters. The donor provided that, upon his death, two new trusts were to be created and that, upon donee’s death, all the property held in one of the trusts “shall be distributed as she may by her will appoint, making specific reference to Trust A under this Revocable Agreement of Trust.” Id. at 992. The donor died and, twenty-one months later, the donee died leaving a will including the following clause:

I give, bequeath and devise all of my property, of whatever nature and wherever situated, and expressly intend this act to constitute the exercise of any power of appointment which I may possess or enjoy under any Will or trust agreement executed by my husband, Charles F. Passmore, and/or the disposition of any property in which I may possess an interest as a beneficiary of a trust or otherwise am entitled to participate or share in its disposition or distribution, in trust, to be administered in a manner and for purposes hereinafter stated: ...

Id. (emphasis added). The court held that the donee’s will effectively exercised her power of appointment granted in the trusts. Id. at 994.

Further, in In re Strobel, 149 Ariz. 213, 717 P.2d 892, 893-94 (1986), Mr. Strobel created two trusts, each of which gave Mrs. Strobel a power of appointment which required specific reference in her will. Mrs. Strobel’s will stated that she had been given a power of appointment in Mr. Strobel’s will rather than the trust documents and that, pursuant to such power, she appointed all of the trust assets to her estate. Id.

The Strobel court noted that the general rule is that an exercise of a power of appointment must comply with the specific requirements imposed by the donor. Id. at 896-97. However, the court adopted the view of the Restatement of Property § 346 (1940) that “equity will ‘aid the defective execution of a power’ ” if the defect was due to mistake, the appointment approximately met the requirements of the manner of exercise, and the appointee was a natural object of affection. Id. The court concluded that the evidence showed that Mrs. Strobel clearly intended to exercise the power of appointment and that the invalidity of her exercise of the power was due to mistake. Id. at 897. The court then, after concluding that granting equitable relief would not defeat Mr. Strobel’s purpose in imposing the requirements on exercising the power of appointment, gave effect to the defective exercise of appointment in light of Mrs. Strobel’s approximate compliance with the requirements. Id. at 899.

Here, unlike the aforementioned cases (and the other authorities cited by Appellants ), the decedent’s will did not include even a general reference to the powers of appointment held by the decedent. Without such, the decedent’s will failed to even substantially comply with the “specific reference” requirements of the trusts. The Strobel court made this precise point when it noted:

[T]he donee’s intent to exercise the power of appointment must be evident from the document itself. Thus, for example, if the donee’s will makes “no reference at all to any power,” and the donor required “specific reference to the power,” the will cannot exercise the power of appointment, even under the equitable exception. Furthermore, “no amount of intent by the donee will exercise a power in the face of a contrary intent by the donor.”

Id. at 897 (citations omitted and emphasis in original).

Finally, Appellants argue that the assets in the trusts are part of the decedent’s estate and should pass to Ms. Cessac because the terms of the will meet the requirements of section 732.607, Florida Statutes, and indicate the decedent’s intent that Ms. Cessac receive the assets. Section 732.607 provides:

A general residuary clause in a will, or a will making general disposition of all the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intent to include the property subject to the power.

The Talcott court rejected an identical argument as to the applicability of section 732.607 when, citing the statute, the court stated, “[i]f the trust contains no specific limitation on the manner of executing the power, other evidence that the power had been executed may be considered to determine intent [but][w]hen the trust defines the manner in which the power must be exercised, noncompliance with the donor’s requirements defeats the appointment.” 423 So.2d at 955-56 (citations omitted). We agree; nothing in section 732.607 limits the power of an individual to place specific requirements on the disposition of his or her property and where, as here, a settlor of a trust places specific restrictions on the exercise of a power of appointment, section 732.607 is inapplicable.

In sum, we conclude that to properly exercise a power of appointment such as the powers provided for in the trusts at issue in this case, the decedent must at least make reference in his or her will to the powers of appointment held by the decedent. Here, the mere reference to one of the trusts and to the location of the property of the other two trusts was not sufficient to even substantially comply with the “specific reference” requirements in the trusts. Accordingly, because the decedent failed to comply with the requirements of the trusts when attempting to execute her powers of appointment, the assets in the trusts did not become part of her estate and must pass to the decedent’s children, as directed in the original trusts, rather than to Ms. Cessae as provided in the decedent’s will.

We recognize the seemingly harsh result of our conclusion that Ms. Cessae will not receive the assets the decedent apparently intended for her to receive. However, this result is a function of the intent of the original donor, who had the right to place whatever restrictions he desired on the disposition of his property. The decedent was obligated to comply with these restrictions, and compliance would not have been difficult here, as all that was necessary was some reference to powers of appointment in the decedent’s will.

For the reasons stated above, the trial court correctly determined that the trusts’ assets are not the property of the decedent’s estate. Accordingly, the order on appeal is AFFIRMED.

SWANSON and MAKAR, JJ„ concur.

      . 423 So.2d 951 (Fla. 3d DCA 1982), rev. denied, 431 So.2d 990 (Fla. 1983).

      . See Fla. R. App. P. 9.170(b)(12) (authorizing appeals of orders in probate cases that "finally determine a right or obligation of an interested person as defined in the Florida Probate Code,” including orders that "determine an estate’s interest in any property”).

      . See Wanda Ellen Wakefield, Annotation, Sufficiency of Exercise of Power Specifying that it Can Be Exercised Only By Specific Reference Thereto, 15 A.L.R.4th 810 (1982) (collecting cases).

      . The decedent's will was prepared by an attorney (not Appellants’ counsel on appeal) who, had he read the trusts, could have easily drafted the will to comport with the original donor’s intent. However, the attorney testified that he made no effort to ensure that the will complied with the trusts’ requirements when preparing the decedent's final will in 2009 even though he had previously been provided a copy of at least one of the trusts.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PREUSLER & ASSOCIATES, INC., d/b/a Restoration Specialists, Appellant, v. Stephen A. SCOTT, Appellee.
    No. 1D12-5409.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Kevin K. Dixon, Inverness, for Appellant.
    Bill Hoppe, Gainesville, for Appellee.
   PER CURIAM.

This appeal arose out of a complaint filed by Stephen A. Scott, appellee, under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201-213, Florida Statutes (2005), against Preusler & Associates, Inc., doing business as Restoration Specialists, appellant, and a counterclaim for breach of contract filed by Preusler. The trial judge granted summary judgments on both the FDUTPA claims and the counterclaim. Preusler appeals the trial court’s order denying, in part, and granting, in part, its motion for attorney’s fees and costs. Preusler argues that the trial court erred by partially denying it attorney’s fees based on a ruling that Preusler had not timely pled attorney’s fees and that the exception created in Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991), was not applicable under the circumstances here. Preusler further asserts that the trial court erred in failing to include in its order awarding appellate fees a finding as to the number of hours reasonably expended.

We agree with the trial court that, by filing its motion seeking attorney’s fees under section 501.2105, Florida Statutes (2005), after the trial court had granted summary judgment on the FDUTPA claims, Preusler waived its claim for attorney’s fees. Stockman, 573 So.2d at 837-38. Further, we also agree with the trial court that, under the facts here, the Stock-man exception to the waiver rule does not apply. Id. at 838 (“Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.”). Accordingly, we affirm the first issue raised on appeal.

As Scott correctly concedes, however, the trial court’s order erroneously failed to state findings as to the number of hours reasonably expended in defending Scott’s appeal of the summary judgment entered with respect to his FDUTPA claim. “[I]t is well established that a trial court is required to set forth specific findings regarding the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors as mandated by the supreme court in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).” Teat v. City of Apalachicola, 880 So.2d 819, 820 (Fla. 1st DCA 2004). Accordingly, we reverse and remand this issue for the entry of a corrected order containing the required findings.

AFFIRMED, in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

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


text:
    Selig Armand HADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4708.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2013.
    Stacy A. Scott, Public Defender, and Danielle H. Eisenmenger, Assistant Public Defender, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. The dismissal is without prejudice to appellant’s right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Adams v. State, 734 So.2d 1086, 1087 (Fla. 1st DCA 1999).

BENTON, PADOVANO, and RAY, JJ., concur.


text:
    Terrell GIBSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D08-2420, 4D10-3689.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Jan. 9, 2014.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, and Terrell Gibson, Bowling Green, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Terrell Gibson appeals the denial of multiple rule 3.850 motions. Appellant received evidentiary hearings on several claims raised in two separate motions. These appeals were consolidated for review. As requested in his reply to the State’s answer brief in case number 4D08-2420, this court has considered the points raised in both the December 2008 initial brief and the October 2012 amended initial brief on the merits. None of the arguments raised in these briefs, or in the second amended initial brief, show that the trial court erred in denying appellant’s postconviction motions in case number 4D08-2420. Likewise, appellant has not shown that the court erred in denying his newly-discovered evidence claim in case number 4D10-3689, following an evidentia-ry hearing. Accordingly, we affirm the circuit court orders in both appeals.

STEVENSON, MAY and CIKLIN, JJ., concur.


text:
    Carol PREUDHOMME, Appellant, v. Luis GUTIERREZ, Appellee.
    No. 4D11-3674.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Jan. 9, 2014.
    Carol A. Preudhomme, Pembroke Pines, pro se.
    Jelani Davis of Law Office of Jelani Davis, Miami, for appellee.
   PER CURIAM.

In this marital dissolution case, the long-term marriage of Appellant Carol Preu-dhomme (“Former Wife”) and Appellee Luis Gutierrez (“Former Husband”) was dissolved by final judgment, in which the trial court adopted the report of the general magistrate for a parenting plan, equitable distribution, the marital home, child support, alimony, and attorneys’ fees and costs. Former Wife appealed the various determinations in the final judgment.

We find that the trial court did not abuse its discretion in making its determinations related to the dissolution of this marriage as the recommendations and findings in the magistrate’s report are supported by competent and substantial evidence. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). Although we affirm the substantive decisions in the final judgment, we remand with instructions for the trial court to amend section 14(c) of the final judgment respecting Former Wife’s ability to receive credits for paying Former Husband’s portion of the mortgage on the jointly owned home. As there is no basis in the record to relieve Former Husband of his responsibility for half of the entire mortgage payment, the final judgment must be clarified to reflect that Former Wife is entitled to receive credit for her payment of Former Husband’s portion of the mortgage interest just as with the “mortgage/equity line principal.” See Goolsby v. Wiley, 547 So.2d 227, 228 (Fla. 4th DCA 1989).

Affirmed, with a limited remand for the purpose of the trial court amending the final judgment consistent with this opinion.

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


text:
    Paul Timothy KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2193.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Paul Timothy King, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s rule 3.800(a) motion to correct illegal sentence, which attempts to challenge the propriety of his conviction and sentence for sale of cocaine as a lesser-included offense for sale of cocaine within 1000 feet of a convenience store. The motion does not establish an “illegal” sentence that can be corrected at any time. See Carter v. State, 786 So.2d 1173, 1178 (Fla.2001). Instead, the motion attempts to bring a procedurally barred and untimely challenge to that conviction, an improper basis for the motion under rule 3.800(a), see Steed v. State, 120 So.3d 113 (Fla. 4th DCA 2013). Moreover, since appellant has raised this very claim twice before, the order is subject to affirmance based on collateral estoppels. Kittles v. State, 83 So.3d 958, 960 (Fla. 4th DCA), mandamus dismissed, 90 So.3d 271 (Fla.2012).

Accordingly, the Clerk of this Court is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures, including forfeiture of gain time. § 944.279(1), Fla. Stat. (2012). Further, appellant is cautioned that future frivolous filings will result in additional sanctions such as a bar on pro se filings in this court. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

Affirmed. Appellant referred for consideration of disciplinary procedures.

DAMOORGIAN, C.J., GERBER and FORST, JJ., concur.


author: WARNER, J.

text:
    C.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1152.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

A juvenile appeals his disposition order and sentence. The state concedes that the trial court failed to include the mandatory requirements for disposition orders contained in Florida Rule of Juvenile Procedure 8.115(d). The state also concedes that the disposition order contains an error by adjudicating the child guilty of grand theft instead of petit theft. We thus reverse and remand for the trial court to enter a corrected disposition, which must include the child’s age, the proper disposition for each count, degree of the offenses and the maximum terms. The order should be entered nunc pro tunc to the date of the original disposition.

In addition, the state also concedes that the imposition of the $2 teen court fee was unauthorized. Section 938.19(l)-(2), Florida Statutes (2011), provides that “in each county in which a teen court has been created, the board of county commissioners may adopt a mandatory court cost to be assessed ... 2) ... against each person ... adjudicated delinquent.” In this case, at the time of disposition, the Broward Board of County Commissioners had not amended its ordinance assessing additional fees, pursuant to section 938.19, Florida Statutes (2011), to include a reference to juvenile delinquency cases. We therefore reverse for deletion of that fee. See S.F. v. State, 56 So.3d 116, 116 (Fla. 3d DCA 2011).

Finally, the child notes that the court set a restitution hearing during the pendency of this appeal, but there is no restitution order in this record, nor has one been appealed. The issue is therefore not before us. If the court acted without jurisdiction, it can be remedied by appealing that order.

Reversed and remanded for further proceedings in accordance with this opinion.

GROSS and LEVINE, JJ., concur.

      . The child pointed this out to the trial court in a Rule 8.135(b)(2) motion pending appeal. Unfortunately, the trial court did not rule on the motion within, thirty days, as required in the rule, and the motion is deemed denied. Fla. R. Juv. P. 8.135(b)(1)(B), (2)(B); see, e.g., C.J.T. v. State, 76 So.3d 1139, 1139 (Fla. 4th DCA 2012). The court’s subsequent ruling is a nullity, because the court lacked jurisdiction. O.H. v. State, 948 So.2d 79, 80 (Fla. 2d DCA 2007).

      . This too was corrected by the trial court, but its order was untimely pursuant to Rule 8.135 and thus was a nullity.


author: DAMOORGIAN, C.J.

text:
    Robert S. GERSHMAN, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 4D12-3360.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Robert S. Gershman of Gershman & Gershman P.A., Delray Beach, and Margaret Reeder, Hobe Sound, for appellant.
    Eric M. Lipman and Amy McKever To-man, Tallahassee, for appellee.
   DAMOORGIAN, C.J.

Robert S. Gershman appeals an order of the Florida Elections Commission (the “Commission”) dismissing his complaint alleging an elections violation by Gershmaris former opponent in a political race. Gershman now asks us to review the Commission’s determination that his complaint was legally insufficient. We dismiss Gershman’s appeal for lack of jurisdiction.

In the administrative context, appellate or certiorari review jurisdiction only exists where the administrative agency’s challenged action was quasi-judicial as opposed to quasi-executive in nature. See Building Code Advisonry Bd. v. S. Bldg. Prods., Inc., 622 So.2d 10, 11 (Fla. 4th DCA 1993). A dismissal of an administrative complaint for legal insufficiency has been held to be a quasi-executive, and thus non-reviewable, decision. Fisher Island Holdings, LLC v. Miami-Dade Cnty. Comm’n on Ethics & Pub. Trust, 748 So.2d 381, 382 (Fla. 3d DCA 2000).

In Fisher, which is directly analogous to this case, the Third District denied a petition for writ of certiorari challenging Miami-Dade County’s Commission on Ethics and Public Trust’s determination that a complaint against a councilman for an ethics violation was legally insufficient. Id. In denying the petition, the court held that the commission’s finding of legal insufficiency was a non-reviewable decision “akin to a prosecutor’s determination not to file an information or seek an indictment in a criminal action, a decision which has long been held to be completely discretionary and not subject to judicial inference.” Id.

Likewise, we hold that the Commission’s finding that Gershman’s complaint was legally insufficient was a non-reviewable, quasi-executive decision. Accordingly, we dismiss the appeal.

Dismissed.

MAY and FORST, JJ., concur.


author: GROSS, J.

text:
    Julien GARCON, Appellant, v. Kelly LANDERS, Appellee.
    No. 4D12-3873.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Julien Garcon, Salters, South Carolina, pro se.
    Kent Huffman of Hutchinson & Huffman, P.A., West Palm Beach, for appellee.
   GROSS, J.

This case involves a suit by an incarcerated prisoner against the attorney who represented him in the criminal case that led to his incarceration. The trial court granted the attorney’s motion to dismiss for violation of the statute of limitations. We reverse because the application of the statute is not apparent on the face of the complaint.

Julien Garcon retained Kelly Landers to represent him in a federal criminal proceeding in April 2007. Garcon entered a guilty plea and was incarcerated; he remains incarcerated today.

On February 16, 2010, Garcon filed an eight count complaint against Landers alleging breach of contract, fraudulent concealment, fraud, breach of fiduciary duty, constructive fraud, legal malpractice, a claim under the Florida Deceptive and Unfair Trade Practices Act, and negligent infliction of emotional distress.

After preliminary motions not relevant to this appeal, and some difficulty in obtaining service on Landers, the Sheriffs Office served the summons and complaint at Landers’ law office on Beth Michael as Landers’ “designated employee.” On August 31, 2012, Landers filed a motion to dismiss on statute of limitations grounds, stating that the claims asserted in the complaint arose more than five years before the date of filing the complaint. The court granted Landers’ request.

Landers concedes that he incorrectly moved to dismiss Garcon’s complaint based on the statute of limitations, but argues the dismissal was proper because the service on Beth Michael failed to comply with subsections 48.031(l)(a) and 48.031(2)(b), Florida Statutes (2012). However, Landers waived this argument by failing to raise it in the circuit court. “If not raised in a responsive pleading or by motion filed by a party, an objection to improper service of process is waived.” Dolan v. Dolan, 81 So.3d 558, 559 (Fla. 3d DCA 2012) (citing Fla. R. Civ. P. 1.140(b), (h)(1)); see also Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002) (pleading to the merits of the case without objecting to service of process waives that defense).

Reversed and remanded.

MAY and CIKLIN, JJ., concur.

      . We do not rule on the sufficiency of any of these causes of action as pleaded in the complaint.


text:
    Vasilyn N. LONDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-782.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Appellant, Vasilyn London, appeals his conviction and sentence for one count of sexual battery and one count of burglary of a dwelling. On appeal, London raises two issues. We affirm.

Appellant first argues that the trial court erred in limiting his direct examination of one of the investigators with regard to the victim’s description of the sexual assault. Specifically, Appellant contends that the court prevented him from eliciting testimony that the victim described the attack as brutal (in contrast to her physical injuries) when the court sustained the State’s objection to the defense’s line of questioning on grounds of “asked and answered.” The State counters that as an initial matter, Appellant did not preserve the alleged error for review because defense counsel failed to proffer the excluded testimony. It further argues that there was no error as Appellant elicited such testimony from the witness. The State is correct. There was no error because the defense was allowed to elicit testimony regarding the physicality of the attack from the investigating officer.

Appellant next argues that the “trial judge transgressed the proper boundaries imposed on her discretion” when it scolded defense counsel in the presence of the jury for asking the investigator to read a portion of her police report into the record. The State maintains that there was no error as the judge’s actions were within her discretion to govern the trial and did not have a prejudicial effect on the Appellant.

[3] While it is “the better practice” to require retirement of the jury before rebuking counsel, “there are occasions where there is no error in rebuking defense counsel in the presence of the jury.” Jones v. State, 385 So.2d 132, 134 (Fla. 4th DCA 1980). However, reversible error occurs when the judge’s comments and conduct “so severely call into question an attorney’s level of advocacy and sense of fairness” that they create a prejudicial effect on the defendant. Wilkerson v. State, 510 So.2d 1253, 1254 (Fla. 1st DCA 1987); see also Alley v. State, 619 So.2d 1013, 1015 (Fla. 4th DCA 1993).

Appellant primarily cites to Tyndall v. State, 234 So.2d 154 (Fla. 4th DCA 1970), in support of his position that the trial court prejudiced the defendant when it interrupted defense counsel’s attempt to have the investigator read her police report into the record. In Tyndall, this Court reversed because the trial court went on an unwarranted “tirade against the defense attorney” in front of the jury, lengthily responding to the state’s objection by telling the defense attorney that it could not let him “get-away-with murder” and elicit “blatant, out-right outrageous, unadulterated hearsay.” Tyndall, 234 So.2d at 155 and n. 1.

Appellant’s reliance on Tyndall is overstated. Here, the court prevented the investigator from reading the police report into the record by stating: “No, she cannot read it directly into the record, you must ask questions ... that violates Florida law, police reports are not admissible into evidence. Do I need to show you the Evidence Code?” Although the court’s last statement was unnecessary, it did not rise to the level of the court’s remarks in Tyndall, which were lengthy and more egregious. Moreover, unlike the court’s remarks in Tyndall, which were not necessary to prevent the inadmissible evidence from coming in as the state had already objected, here the court’s initial comments were necessary to prevent the improper admission of information contained in a police report. See Burgess v. State, 831 So.2d 137, 140 (Fla.2002) (information contained in a police report is hearsay and inadmissible in an adversary criminal proceeding).

Appellant’s counsel was improperly trying to have the information contained in a police report admitted into evidence, and the court stopped her as it had the authority to do. Thus, its actions were not improper.

Affirmed.

MAY and FORST, JJ., concur.


text:
    Fred MASSARO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1039.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Fred Massaro, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Fred Massaro appeals the summary denial of his multi-point rule 3.850 motion alleging ineffective assistance of trial counsel. See Fla. R. Crim. P. 3.850. Massaro challenges the trial court’s summary denial of two points. We reverse and remand for further review of one of those claims.

Massaro alleges that counsel was ineffective for misadvising him of the maximum sentence he faced with respect to his pending violation of probation (VOP), and as a result, he rejected a twelve-year plea offer. Following a VOP hearing, the trial court sentenced Massaro to a thirty-five-year prison term with credit for 2,750 days served.

Massaro filed his rule 3.850 motion before the Florida Supreme Court issued its decision in Alcorn v. State, 121 So.3d 419 (Fla.2013). Alcorn explained the proper prejudice inquiry associated with such a claim of misadvice. Id. at 431-32 (citing Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)).

Responding to this court’s order to show cause, the State does not argue that the motion is legally insufficient. Compare Gibson v. State, 122 So.3d 428 (Fla. 4th DCA 2013). Rather, it points to the language within Alcorn that “courts are entitled to accept the defendant’s undisputed, yet self-serving, allegation that he would have taken the plea offer but for being misadvised on the proper statutory maximum as a basis for finding prejudice, but courts are not precluded from rejecting such a statement either.” 121 So.3d at 431-32. In making that statement, the Supreme Court was explaining that “[n]o single piece of evidence will absolutely mandate or foreclose a finding of prejudice under any and every scenario.” Id. at 431.

Unlike Alcorn, the trial court summarily denied Massaro’s claim. Massaro’s motion was filed under oath and supported with a transcript wherein there is a reference to a plea. See Fla. R. Crim. P. 3.850. The claim was not refuted by the record furnished. We, therefore, reverse and remand the case to the trial court for further proceedings. See, e.g., Gribble v. State, 120 So.3d 153 (Fla. 4th DCA 2013).

Affirmed in part, reversed in part and remanded.

STEVENSON, GROSS and CIKLIN, JJ., concur.


text:
    FIRST CALL VENTURES, LLC and First Call Movers and Transport of Florida, LLC, Petitioners, v. NATIONWIDE RELOCATION SERVICES, INC., Respondent.
    No. 4D13-1628.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Howard N. Kahn of Kahn & Resnik, P.L., Dania, for petitioners.
    Jason H. Haber of Haber, Stief & Blank, LLP, and Elias R. Hilal of Law Office of Elias R. Hilal, P.A., Fort Lauderdale, for respondent.
   WARNER, J.

Non-party petitioners, First Call Ventures, LLC and First Call Movers and Transport of Florida, LLC (collectively referred to as First Call), seek certiorari review of the denial of a motion for protective order to prevent production to respondent, Nationwide Relocation Service, Inc., of confidential and proprietary information concerning First Call’s business. The trial court ordered production of various confidential documents in connection with Nationwide’s suit against a former employee, who is now First Call’s employee, and whom Nationwide alleges misappropriated trade secrets and proprietary information for the use of the employee and First Call. We deny the petition to the extent that it requests an in-camera inspection and confidentiality, as we interpret the trial court’s order as providing confidentiality. We grant the petition in part, concluding that the trial court departed from the essential requirements of law in failing to provide for the reasonable cost of production of documents by First Call.

First Call claims that the court should have conducted an in-camera inspection prior to ordering production of the documents. The trial court ordered production of the material “subject to a confidentiality order.” Just as in Columbia Hospital (Palm Beaches) Ltd. Part nership v. Hasson, 33 So.3d 148, 150-51 (Fla. 4th DCA 2010), we deem that the trial court has concluded that the documents are confidential and therefore an in-camera inspection is not necessary, nor was an in-camera inspection requested before the trial court. Generally, a petitioner cannot raise in a petition for writ of certiorari a ground that was not raised below. See Leonhardt v. Masters, 679 So.2d 73, 74 (Fla. 4th DCA 1996).

Because production is subject to a confidentiality order, the production of documents should be delayed, as in Columbia Hospital “until the parties ha[ve] an opportunity to negotiate a confidentiality agreement. In the event the parties are unable to agree, the trial court shall narrowly tailor any order requiring disclosure in such a way as to protect the [petitioner’s] trade secret interests.” Columbia Hosp., 33 So.3d at 151. This may mean that such production will be made solely to the attorneys and not to Nationwide itself. See, e.g., Bestechnologies, Inc. v. Trident Envtl. Sys., Inc., 681 So.2d 1175, 1176-77 (Fla. 2d DCA 1996). The trial court may also have to review documents to determine any disputes regarding confidentiality-

First Call also filed affidavits showing that production of all of the documents requested would be unduly burdensome and require $50,000 of employee time. The trial court made no provision for the payment of First Call’s costs. It is a non-party, so plenary appeal will not afford it relief. Therefore, we may address this on certiorari review.

The failure to make provision for the cost to a non-party to produce subpoenaed documents constitutes a departure from the essential requirement of law. See Abdel-Fattah v. Taub, 617 So.2d 429, 430 (Fla. 4th DCA 1993), disapproved on other grounds, Elkins v. Syken, 672 So.2d 517, 518 (Fla.1996); Young v. Santos, 611 So.2d 586 (Fla. 4th DCA 1993), disapproved of on other grounds, Elkins, 672 So.2d at 518; Fla. R. Civ. P. 1.351(c). We thus grant the petition and order the trial court to determine and provide for the reasonable cost to First Call for the production of the subpoenaed documents.

Petition granted in part; denied in part; and remanded with instructions.

GROSS and GERBER, JJ., concur.


text:
    William R. BALLARD, Petitioner, v. Marisa E. CAMPBELL, Respondent.
    No. 4D13-2098.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Robin Bresky of the Law Offices of Robin Bresky, Boca Raton, for petitioner.
    Nancy W. Gregoire and Joshua Roberts of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for respondent.
   PER CURIAM.

Petitioner seeks prohibition following a trial court order denying his motion to disqualify the judge presiding in a post-dissolution proceeding. We grant the petition.

The underlying case involves a post-dissolution dispute between Petitioner and Respondent, over the timesharing of a minor child. After five years of inactivity in the case, Respondent filed a motion for visitation, seeking timesharing of the child for a holiday in 2013.

On April 19, 2013, the presiding judge sent a letter to Petitioner’s attorney disclosing the fact that she had been previously represented by the law firm that represented Respondent. In particular, one of the firm’s partners had represented the judge during her dissolution of marriage action. Due to an absence from the jurisdiction, Petitioner’s attorney did not receive the letter until May 2, 2013. That same day, Petitioner moved to disqualify the judge based on fears that he would not receive a fair hearing or trial because of the judge’s prior representation by Respondent’s counsel. Citing Florida Rule of Judicial Administration 2.330, the trial court denied the motion to disqualify.

Under Rule 2.330, a motion to disqualify filed on these grounds is required to be legally sufficient.

Respondent argues that the motion was insufficient because it was untimely. In particular, it alleges that the motion was filed more than 10 days after the judge’s April 19th letter.

We disagree with Respondent’s position. Florida Rule of Judicial Administration 2.330(e) requires that a motion to disqualify be filed no later than 10 days after discovery of the facts that constitute grounds for the motion. Here, the judge’s letter was not discovered until May 2nd— the same date on which the motion to disqualify was filed.

Furthermore, the term legal sufficiency encompasses more than mere technical compliance with the rule and the statute. See Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981). Courts are also required to assess whether the facts alleged would prompt a reasonably prudent person to fear that he or she could not get a fair and impartial trial. Id. The fear of judicial bias must be objectively reasonable. Parker v. State, 3 So.3d 974, 982 (Fla.2009).

This Court’s jurisprudence suggests that Petitioner’s burden for disqualification was satisfied. The general rule is that disqualification is required if counsel for one of the parties is representing or has recently represented the judge. See City of Fort Lauderdale v. Palazzo Las Olas Group, LLC, 882 So.2d 1102 (Fla. 4th DCA 2004). In Atkinson Dredging Co. v. Henning, 631 So.2d 1129 (Fla. 4th DCA 1994), this Court found that the trial judge should be prohibited from presiding over a pending case because a law firm representing one of the parties was currently representing the judge in an unrelated matter. In that case, we found that “the appearance of justice proscribes the trial judge from continuing, even though the record may be void of any actual bias or prejudice on her part.” Id. at 1130. In Atkinson, this Court approved of Smith v. Sikorsky Aircraft, 420 F.Supp. 661 (C.D.Cal.1976), where a judge sua sponte ordered the case reassigned because a member of the law firm representing the plaintiff had previously acted as counsel for the judge.

As we emphasized in Atkinson, we agree that justice must satisfy the appearance of justice. In keeping with this principle, we conclude that Petitioner’s motion was sufficient and grant the petition for writ of prohibition.

Petition granted.

DAMOORGIAN, C.J., GROSS and CIKLIN, JJ., concur.


author: GERBER, J.

text:
    H. ALLEN HOLMES, INC., and Henry Allen Holmes, Appellants/Cross-Appellees, v. JIM MOLTER, INC., Appellee/Cross-Appellant.
    No. 4D13-217.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Dec. 27, 2013.

      Earl K. Mallory and Charles R. Boning of Mallory Law Group, Jupiter, for appellants/eross-appellees.
    Joseph C. Kempe, P.A. of John L. Avery, Jr., Jupiter, for appellee/cross-ap-pellant.
   GERBER, J.

This appeal and cross-appeal arise from a final judgment after a non-jury trial in a landlord-tenant dispute. The dispute arose when the tenant, an interior designer, removed its trade fixtures when it vacated the leased premises after the parties’ lease contract expired, resulting in the landlord retaining the security deposit. The tenant filed a breach of contract claim against the landlord for the alleged improper retention of the security deposit. The landlord filed claims for breach of contract, conversion, and civil theft against the tenant and the tenant’s president for the alleged improper removal of the trade fixtures.

In the final judgment, the trial court found, in pertinent part: (1) the tenant was entitled to retain its trade fixtures; (2) the tenant was entitled to a partial return of its security deposit; (3) the landlord was entitled to retain the remainder of the security deposit to repair the damages which the tenant caused to the leased premises by removing the trade fixtures; (4) the landlord was not entitled to judgment on its conversion and civil theft claims against the tenant and the tenant’s president; and (5) neither party was the “prevailing party” for purposes of recovering attorney’s fees and costs.

From this final judgment, both parties have appealed. Because the trial court’s determination and our determination depend upon an interpretation of the parties’ controlling lease contract, our review is de novo. See Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla.2013) (a contract interpretation matter is a question of law subject to de novo review) (citation omitted).

We conclude that the parties’ lease contract was ambiguous as to which party was entitled to retain the trade fixtures when the lease expired. Because the lease contract was ambiguous, we conclude that the tenant was entitled to retain the trade fixtures. As the third district held in Sweeting v. Hammons, 521 So.2d 226 (Fla. 3d DCA 1988):

Where the relationship of landlord-tenant exists, the presumption is in favor of the right of a tenant to remove structures or articles [the tenant] has placed on the leased property for [its] own purpose, even in the absence of an express stipulation. Nothing short of the clearest expression of an agreement by the parties to that effect can justify the extension of the grasp of the landlord so as to cover chattels, or personal property brought upon the premises by the tenant, in pursuance of the business for which the premises were leased. For in the absence of an express contract as to trade fixtures, there is an implied contract permitting the tenant to remove them at the proper time and in a proper manner.

Id. at 229 (emphasis added; internal citations omitted).

Because entitlement to the trade fixtures and the security deposit was the most significant issue in the litigation, we conclude that the tenant was the prevailing party in this case. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992) (“[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.”); Animal Wrappers & Doggie Wrappers, Inc. v. Courtyard Distribution Ctr., Inc., 73 So.3d 354, 356 (Fla. 4th DCA 2011) (tenant prevailed against landlord when tenant recovered a portion of its security deposit and, “more importantly,” the landlord did not prevail on its counterclaim seeking additional damages).

In turn, because the lease provided that, in the event of litigation between the parties, the prevailing party would be entitled to collect its reasonable attorney’s fees and costs from the other party, we conclude that the tenant is entitled to collect its reasonable attorney’s fees and costs incurred in prosecuting its breach of contract claim and defending against the landlord’s breach of contract claim. See § 57.105(7), Fla. Stat. (2012) (“If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.”); § 57.041(1), Fla. Stat. (2012) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment ....”).

We also conclude that the tenant and the tenant’s president were the prevailing parties on the landlord’s conversion claim. See Moritz, 604 So.2d at 810. As the prevailing parties on that claim, the tenant and the tenant’s president are entitled to recover their costs incurred in defending against that claim. See § 57.041(1), Fla. Stat. (2012); Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So.3d 348, 356 (Fla. 4th DCA 2011) (“Under section 57.041(1), a judge has no discretion to deny recovery of costs to the prevailing party.”).

However, the tenant and the tenant’s president are not entitled to recover their attorneys fees and costs incurred in defending against the landlord’s civil theft claim. Under section 772.11(1), Florida Statutes (2011), the defendant (or counter-defendant) on a civil theft claim is entitled to recover its reasonable attorney’s fees and court costs in the trial and appellate courts only upon a finding that the claimant (or counter-claimant) “raised a claim that was without substantial fact or legal support.” § 772.11(1), Fla. Stat. (2011). Here, although the landlord failed to prevail on its civil theft claim by clear and convincing evidence, the landlord’s claim “was not without substantial fact or legal support” given the ambiguity of the parties’ lease contract. See Standafer v. Schaller, 726 So.2d 352, 353 (Fla. 2d DCA 1999) (“[T]he clear language of the statute appears to require more than that the defendant be the prevailing party because the failure of a plaintiff to prevail on a civil theft claim by clear and convincing evidence does not necessarily mean that the claim was without substantial fact or legal support.”).

Based on the foregoing, we reverse only the trial court’s finding that neither party was the “prevailing party” for purposes of recovering attorney’s fees and costs. We remand for the trial court to conduct an evidentiary hearing to determine the amount of: (1) the tenant’s attorney’s fees and costs incurred in prosecuting its breach of contract claim and defending against the landlord’s breach of contract claim; and .(2) the tenant’s and the tenant’s president’s costs incurred in defending against the landlord’s conversion claim. We otherwise affirm the remainder of the final judgment without further discussion.

Affirmed in part, reversed in part, and remanded with directions.

WARNER and STEVENSON, JJ., concur.


author: STEVENSON, J.

text:
    Matilde A. PALACIN, Appellant, v. HSBC BANK USA NATIONAL ASSOCIATION as Trustee for Deutsche Alt 2006 ARI, Appellee.
    No. 4D12-4083.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Robert Flavell of Robert Flavell, P.A., Miami Lakes, for appellant.
    Kimberly Hopkins and Ronald M. Gaché of Shapiro, Fishman & Gaché, LLP, Tampa, for appellee.
   STEVENSON, J.

Appellant Matilde A. Palacin challenges a final summary judgment of foreclosure entered in favor of HSBC Bank USA National Association (“the Bank”). Finding merit in Palacin’s argument that an erroneously-entered clerk’s default could not provide the basis for the summary judgment, we reverse.

Here, the clerk entered a default in response to the Bank’s motion filed on the same day. Unbeknownst to the clerk, the day before the default was entered, Pala-cin, through counsel, had served a motion seeking additional time to respond to the complaint. Palacin did not file a motion to vacate the clerk’s default. Instead, she filed a motion to dismiss. The trial court denied the motion to dismiss and granted Palacin twenty days to file an answer. Palacin filed her answer, raising lack of standing and failure to comply with conditions precedent as affirmative defenses.

During the subsequent summary judgment proceedings, the Bank insisted the clerk’s default was still valid and, as such, it was entitled to summary judgment without regard to the affirmative defenses. The trial court accepted this argument and entered the summary judgment that gave rise to this appeal.

In this case, the clerk’s default was entered in error and was invalid. See Becker v. Re/Max Horizons Realty, Inc., 819 So.2d 887, 890 (Fla. 1st DCA 2002) (recognizing clerk’s default can be entered pursuant to Fla. R. Civ. P. 1.500(a) only where defendant failed to file or serve any “paper”; a “paper” includes “any written communication that informs the plaintiff of the defendant’s intent to contest the claim”); see also U.S. Bank Nat’l Ass’n v. Lloyd, 981 So.2d 633, 640 (Fla. 2d DCA 2008) (noting clerk’s default invalid if entered where plaintiff is aware defendant is represented and intends to defend on the merits). Moreover, even after entry of the default, the trial court allowed the litigation to continue and entered an order expressly affording Palacin the right to defend on the merits. Thus, it was error for the trial court to later rely upon the clerk’s default in entering summary judgment in favor of the Bank. And, having reviewed the evidence, it is clear to this court that genuine issues of material fact remain with regard to the Bank’s standing and its compliance with conditions precedent to acceleration.

Reversed and remanded.

WARNER and GERBER, JJ., concur.


text:
    Raymond GREGG, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4532.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Dec. 23, 2013.
    Raymond Gregg, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the summary denial of his postconviction motion. We affirm. The claims are untimely and successive. See Fla..R.Crim. P. 3.850(b); Parks v. State, 101 So.3d 1265, 1265 (Fla. 4th DCA 2012) (“Defendant’s motion did not present any valid exceptions to the time limitations under the rule.... Further, Defendant’s motion was successive as the claims could have been raised in one of his previous motions.”) (citing Fla. R.Crim. P. 3.850(b); Baker v. State, 878 So.2d 1236, 1243-44 (Fla.2004)).

Affirmed.

WARNER, GERBER and LEVINE, JJ., concur.


text:
    STATE of Florida, Appellant, v. Anthony McLEMORE, Appellee.
    No. 4D12-606.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

WARNER, GROSS and LEVINE, JJ., concur.


text:
    H.J.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-649.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant’s probation was revoked following a hearing. On appeal, the appellant argues that (1) the only evidence presented at the revocation hearing of him violating the condition to attend school each day was hearsay evidence, and (2) the disposition order failed to comply with the mandatory requirements for such orders. We affirm the revocation on the merits, concluding that the trial court properly found a violation of probation based on competent and substantial evidence, and not merely hearsay evidence. However, we remand the case so that the trial court can enter a written order that complies with the applicable laws for such orders.

The State concedes that the written disposition order failed to comply with the requirements of Florida Rule of Juvenile Procedure 8.115(d) (2012), as the order did not contain the age of the child, the disposition of each count, the degree of each offense, the maximum penalty defined by statute, nor the amount of time served in secure detention before disposition. Moreover, the State concedes that the order is deficient because it does not state the evidence relied upon nor the reasons for revoking probation. See A.T.J.F. v. State, 78 So.3d 57 (Fla. 4th DCA 2012).

Accordingly, we affirm the revocation, but remand the case with instructions for the trial court to enter a written order that complies with Rule 8.115(d) and the law requiring a written order that sets forth the specific reason(s) for the revocation. See Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998) (affirming the trial court’s decision because there was some non-hearsay evidence to support revocation, but remanding for a written order reflecting the reasons for revocation).

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


text:
    Jeffrey POTTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1050.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Jeffrey Potter, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s rule 3.800(a) motion to correct illegal sentence. Appellant has filed numerous postconviction challenges and appeals in connection with lower tribunal case number 90-13578, and was previously warned by this court in case numbers 4D12-996 and 4D11-4868 that future frivolous filings may result in sanctions. Because of appellant’s ongoing abuse of the postconviction process, we issued an order to show cause pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). Appellant has not responded. We conclude that sanctions are appropriate.

Within the rule 3.800(a) motion before us, appellant challenged his 1991 score-sheet, arguing that the prior offenses were not listed in requisite detail. He does not contest the offenses listed or otherwise demonstrate that his sentence is illegal as a result of the missing information. See Brooks v. State, 969 So.2d 238, 243 (Fla. 2007). Also, our records reflect that, in 1992, appellant filed a rule 3.800(a) motion contesting the prior felony convictions referenced on his scoresheet. This court affirmed the trial court’s denial of relief. See Potter v. State, 615 So.2d 169 (Fla. 4th DCA 1993).

This is appellant’s twelfth filing in this court, which filings include seven appeals from orders denying motions for rules 3.800(a) and 3.850 relief. We conclude that appellant’s abuse of the postconviction process interferes with the right of access to court for others and damages the remedy. See Lake v. State, 115 So.3d 1046, 1047 (Fla. 4th DCA 2013) (citing McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010), review denied, 75 So.3d 1245 (Fla.2011)).

Accordingly, the Clerk of this Court is directed to no longer accept any paper filed by Jeffrey Potter arising out of his conviction and sentence in lower tribunal case number 90-13578, unless that paper has been signed by a member in good standing with The Florida Bar and that member certifies that a good faith basis exists for each claim presented. Further, we direct the Clerk to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2012).

Affirmed. Sanctions imposed.

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

      . Case nos. 4D92-3547 (3.800); 4D98-2884 (3.850); 4D99-3336 (3.800); 4D02-5095 (3.800); 4D06-2916 (3.800); 4D11-4868 (3.800, cautioned); 4D12-996 (3.800, cautioned).


text:
    Floyd BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1537.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Floyd Brooks, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Floyd Brooks appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. His claim is that the trial court failed to consider his timely-filed motion to amend that motion.

A rule 3.850 movant has the right to amend or supplement a motion at any time within the two-year time limit as long as the trial court has not yet ruled on the merits of the motion. Samuels v. State, 973 So.2d 662 (Fla. 4th DCA 2008); Hyacinthe v. State, 940 So.2d 1280 (Fla. 4th DCA 2006) (citing Gaskin v. State, 737 So.2d 509 (Fla.1999), receded from on other grounds by Nelson v. State, 875 So.2d 579 (Fla.2004)). See also Fla. R.Crim. P. 3.850(e) (effective July 1, 2013). In responding to this court’s order to show cause, the state agrees that the matter should be remanded to allow the amendment.

Reversed and remanded.

CIKLIN, GERBER and LEVINE, JJ., concur.

      . The rule change does not apply to this case but it permits amendments without leave of court before the trial court enters an order pursuant to subdivision (f)(5) or (f)(6).


text:
    Gerald ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-2089, 4D13-2091.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Gerald Armstrong, Stuart, pro se.
    No appearance required for appellee.
   PER CURIAM.

We treat these two petitions for writ of certiorari as appeals of orders denying rule 3.800 motions, consolidate the two cases, and affirm.

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Yul MEDINA, Respondent.
    No. 4D13-2462.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia Comras, Assistant Attoney General, West Palm Beach, for petitioner.
    Alvin E. Entin of Entin & Della Fera, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

The State seeks certiorari relief with respect to the trial court’s order granting respondent’s motion to disclose the identity of a confidential informant. We grant the petition. We agree that the trial court departed from the essential requirements of law when it declined to conduct an in camera hearing before it ordered the disclosure. State v. Titus, 70 So.3d 763 (Fla. 4th DCA 2011); State v. Rivas, 25 So.3d 647, 650 (Fla. 4th DCA 2010); Thomas v. State, 28 So.3d 240 (Fla. 4th DCA 2010); Miller v. State, 729 So.2d 417, 419-20 (Fla. 4th DCA 1999); State v. Ayala, 713 So.2d 1050, 1052 (Fla. 3d DCA 1998); State v. Roberts, 686 So.2d 722, 723 (Fla. 2d DCA 1997).

As this court and others have explained: Disclosure of a confidential informant is required if an informant’s identity or content of his communication is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause. The first component necessarily centers around a specific defense asserted by the defendant in the case, as to which the informant’s testimony is material and helpful. See State v. Zamora, 534 So.2d [864,] 868 [ (Fla. 3d DCA 1988)]. The second component concentrates on general due process considerations and is not confined to a defense raised by the defendant.

State v. LaBron, 24 So.3d 715, 717 (Fla. 4th DCA 2009) (quoting Miller, 729 So.2d at 419); see also Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). When a defendant succeeds in meeting the “initial burden of showing that disclosure is necessary to a specific defense, the trial court should hold an in camera hearing to determine, in fact, whether the disclosure would be relevant and helpful to the defense.” LaBron, 24 So.3d at 717 (quoting Roberts, 686 So.2d at 723); see also Zamora, 534 So.2d at 869 (explaining that in camera review has been confined exclusively to the first alternative component of the Roviaro exception).

Here, the trial court determined that respondent met his burden with respect to the first component, setting forth a potential entrapment defense, and that the second component did not apply. The State’s sole argument in this petition is that the in camera hearing is required. As outlined, the trial court was obligated to conduct the hearing. Rivas, 25 So.3d at 651; Titus, 70 So.3d at 764; State v. Burgos, 985 So.2d 642 (Fla. 2d DCA 2008). Accordingly, the order on review is quashed, and the case is remanded for further proceedings consistent with this opinion.

Petition granted.

TAYLOR, CONNER and FORST, JJ., concur.


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    Eddie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2334.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Eddie Williams, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Perry v. State, 808 So.2d 268, 269 (Fla. 1st DCA 2002) (affirming habitual offender sentencing, which is authorized “if the trial court finds that neither the sentencing felony nor one of the two predicate felonies involved a conviction for possession under section 898.13”).

STEVENSON, TAYLOR and CONNER, JJ., concur.


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    Sheldon RODRIGUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-3407.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Howard Finkelstein, Public Defender, and Tamara L. Curtis, Assistant Public Defender, Fort Lauderdale, for petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of prohibition, which argues immunity from prosecution based on the defense of others under sections 776.012(1) and 776.032(1), Florida Statutes (2010), is denied. The trial court resolved the contradictory testimony given by various witnesses at the hearing on the defense motion to dismiss, and concluded that when petitioner re-engaged the victim outside the business premises where the initial confrontation took place, he lost his statutory immunity. Joseph v. State, 103 So.3d 227, 230 (Fla. 4th DCA 2012); Mederos v. State, 102 So.3d 7, 9, 11 (Fla. 1st DCA 2012). The trial court’s findings are supported by competent, substantial evidence and so will not be disturbed here. Armstrong v. State, 120 So.3d 112, 113 (Fla. 4th DCA 2013) (citing Joseph, 103 So.3d at 228-29). Denial of this petition is without prejudice to petitioner raising the statutory defense at trial if he so chooses. Armstrong, 120 So.3d at 113 (citing Tover v. State, 106 So.3d 958, 959 (Fla. 4th DCA 2013)).

Denied without prejudice.

DAMOORGIAN, C.J., WARNER and GERBER, JJ., concur.


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    Jevon WIMBERLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-47.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Jan. 3, 2014.

      Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm without comment the trial court’s summary denial of grounds one and two of appellant’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, but reverse and remand with directions as to ground three to either hold an evidentiary hearing or attach portions of the record that refute that claim. Simpson v. State, 100 So.3d 1258, 1259 (Fla. 4th DCA 2012); Stallworth v. State, 21 So.3d 84, 86 (Fla. 1st DCA 2009); Hall v. State, 855 So.2d 249, 250 (Fla. 3d DCA 2003).

Affirmed in Part; Reversed in Part and Remanded.

DAMOORGIAN, C.J., WARNER and CIKLIN, JJ., concur.


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    Jermaine JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-50.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Rehearing Denied Dec. 27, 2013.
    Jermaine E. Jackson, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s amended motion for postconviction relief. The trial court properly found that the amended motion was untimely. Appellant’s claim that this motion merely expanded upon timely claims is without merit.

As argued by the State in this appeal, the amended motion was proeedurally barred as successive. We take judicial notice of this court’s records for appellant’s prior appeal in this court. Appellant previously filed a motion that the trial court denied on the merits because appellant failed to establish prejudice under Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant’s appeal from that denial was voluntarily dismissed. Although appellant asked this court to order the trial court to give him leave to amend, he was not granted leave. The trial court was not required to provide appellant with multiple opportunities to attempt to establish prejudice. See Cortes v. State, 85 So.3d 1135, 1138-39 (Fla. 4th DCA 2012), rev. denied, 104 So.3d 1083 (Fla.2012).

Affirmed.

DAMOORGIAN, C.J., STEVENSON and TAYLOR, JJ., concur.


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    Timothy WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-92.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.
    Timothy Wallace, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm, based upon State v. Spencer, 751 So.2d 47, 48 (Fla.1999), the trial court’s order barring the appellant from further pro se filings.

An order prohibiting pro se filings is reviewed for an abuse of discretion. Ashe v. State, 106 So.3d 956, 957 (Fla. 4th DCA 2013); Hudson v. State, 95 So.3d 413, 414 (Fla. 4th DCA 2012). Generally, “a trial court’s decision does not constitute an abuse of discretion unless no reasonable person would take the view adopted by the trial court.” McCray v. State, 71 So.3d 848, 862 (Fla.2011) (quoting Peede v. State, 955 So.2d 480, 489 (Fla.2007)) (internal citation omitted). &

The appellant had filed several improperly successive motions which were merit-less. The trial court warned him that further filings would warrant sanctions. When he filed yet another successive, mer-itless motion, the trial court issued an order to show cause why he shouldn’t be barred from further filings. The appellant responded that he had simply signed what prison law clerks had prepared for him and relied on their incorrect advice that he could continue to file such motions. His explanation is no ground to excuse his repetitive, meritless filings and is belied by his required oath, under penalty of perjury, that he had reviewed the documents and that they were true. See Fla. R.Crim. P. 3.850(c). Furthermore, the defendant filed his last rule 3.850 motion after the trial court had admonished him that filing future postconviction motions could result in sanctions. It too was successive, merit-less, and untimely. See Wallace v. State, 117 So.3d 428 (Fla. 4th DCA 2013) (unpublished table decision) (affirming denial of defendant’s last rule 3.850 motion).

The court did not abuse its discretion in entering the Spencer order.

Affirmed.

WARNER, STEVENSON and GERBER, JJ., concur.


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    Jamela MITCHELL, Appellant, v. PALM BEACH COUNTY SCHOOL BOARD, Appellee.
    No. 4D12-3842.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2013.

      Isidro M. Garcia, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We reverse the order dismissing appellant’s complaint to the Florida Commission on Human Relations (FCHR) for lack of subject matter jurisdiction.

Appellant filed a complaint of discrimination and retaliation with the FCHR within 865 days of the alleged violation, according to the date contained in the complaint. See § 760.10(1), Fla. Stat. (2012). FCHR requested and received a response from the appellee. In that response, ap-pellee noted that appellant had filed a similar complaint with the Equal Employment Opportunity Commission (EEOC), and the EEOC had issued an order in which it was unable to conclude that the information received constituted a violation of any statutes. The appellee also included all of its own investigation of the EEOC complaint, noting that the newly filed FCHR complaint was based upon the same allegations. Shortly after receiving the complaint, FCHR issued an order dismissing the complaint for lack of subject matter jurisdiction without explaining the legal basis.

The appellee has not filed a brief in this case, and we have been unable to determine from our review of the law why it claims FCHR lacks subject matter jurisdiction. All we have is a timely filed complaint alleging racial discrimination and a response from the appellee. Its subject matter is within the purview of the FCHR. It may be that, given the dual filing, the FCHR could adopt the same ruling as the EEOC, but that does not equate to lack of subject matter jurisdiction.

We thus reverse the order of dismissal and remand for further proceedings.

WARNER, GROSS and LEVINE, JJ., concur.

      . A determination by the EEOC is not a determination by the FCHR. See Jones v. Lakeland Reg’l Med. Ctr., 805 So.2d 940, 941 (Fla. 2d DCA 2001).

      . FCHR may not be required to conduct a completely new investigation of the complaint, due to the previously filed complaint and the application of a "Worksharing Agreement” between FCHR and the EEOC. See, e.g., Jones, 805 So.2d at 941; see also Segura v. Hunter Douglas Fabrication Co., 184 F.Supp.2d 1227, 1232-42 (M.D.Fla.2002) (Worksharing agreement in opinion's appendix).