author: SALTER, J. LAGOA, J.

text:
    Ricardo NORONA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2306.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.
    Rehearing Denied April 30, 2014.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before LAGOA, SALTER and LOGUE, JJ.
   SALTER, J.

Ricardo Norona appeals his conviction and sentence for attempted first degree murder and armed kidnapping. He argues that the trial court erred in denying a peremptory challenge by the defense during voir dire under the procedure established in Melbourne v. State, 679 So.2d 759 (Fla.1996). Finding no error in the trial court’s conclusion that the proffered nondiscriminatory explanation for exercising the strike was not genuine, we affirm.

The attempted exercise of a peremptory strike by the defense against prospective juror X.G. occurred after an extensive voir dire and the exercise of numerous strikes by each side. Initially, the defense and the state had accepted X.G., and the Melbourne colloquy challenged on appeal took place as both sides exercised a sequence of backstrikes. By the time the colloquy occurred, the record demonstrates that the trial court and counsel were aware that:

1. X.G. and the alleged victim of the attempted first degree murder and armed kidnapping were both Hispanic females.
2. X.G.’s husband was a retired corrections officer.
3. Other prospective jurors accepted by the defense, in ethnic, racial, or gender categories other than those of X.G., had connections to law enforcement officers, including a prospective juror with two relatives then serving as police officers. That prospective juror had also been accepted by the defense before the backstrike was attempted against X.G., and ultimately that prospective juror — a male — served as a jury member).
4. Before the attempted strike and objection pertaining to X.G., each side had challenged one or more strikes directed at a member of different protected categories, and after a Melbourne colloquy, each objection had been denied by the trial court.

As to the attempted peremptory back-strike against X.G., step one of Melbourne (a timely objection and the identification of the protected classes applicable to the prospective juror) was satisfied. The second step, an explanation by the proponent of the strike providing a facially non-discriminatory basis for the strike, was also satisfied. The third step, an assessment of whether the purportedly non-discriminatory basis was genuine, was also satisfied. The veteran trial judge used her own notes, recollection, and credibility assessment to conclude that the defense had accepted another prospective juror, also with ties to law enforcement, but from a different ethnic and gender category. The trial judge also observed that X.G. had less connection with the government than “about thirty” prospective jurors who had been questioned during voir dire. The trial court was well aware that the victim, a Hispanic female, was to testify as the state’s witness. Additionally, to that point in the jury selection process, the defense had not accepted another Hispanic female.

The defendant in this case argues that “the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose,” and that the “only factor considered by the trial judge in denying the defendant the right to strike [X.G.] was the court’s wrongful reliance on the fact that at least thirty jurors on the panel had a relationship with the government.” We disagree.

The trial court’s decision on such challenges “turns primarily on an assessment of credibility and will be affirmed on appeal unless it is clearly erroneous.” Rodriguez v. State, 753 So.2d 29, 41 (Fla.2000) (citing Melbourne). “Circumstances relevant to the ‘genuineness’ inquiry include the gender or racial make-up of the venire, prior strikes exercised against the same gender or racial group, or singling the juror out for special treatment.” Wynn v. State, 99 So.3d 986, 989 (Fla. 3d DCA 2012) (citing Melbourne). “There is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext.” Johnson v. State, 706 So.2d 401, 404 (Fla. 3d DCA 1998) (citing Davis v. State, 691 So.2d 1180 (Fla. 3d DCA 1997)).

In light of the facts known to the trial court at the time of its ruling regarding the attempted exercise of a peremptory backstrike against X.G., the defendant has not demonstrated that the trial court’s assessment was clearly erroneous.

Affirmed.

LOGUE, J., concurs.

LAGOA, J.

(dissenting).

On appeal, Norona argues that the trial court erred in refusing to allow the defense to exercise a peremptory challenge to excuse X.G. where the defense provided a gender — neutral and non-pretextual reason for the challenge. Because I believe the trial court erred when it disallowed Norona’s peremptory challenge to X.G. after defense counsel provided a genuine, race-neutral and gender-neutral reason for the challenge, I respectfully dissent.

The record reveals that after conducting voir dire on a panel of fifty prospective jurors, the parties began exercising cause and peremptory challenges in sequential order. After proceeding through the first twenty jurors, a panel of six jurors was accepted by the State. At this point, defense counsel moved to peremptorily exercise a backstrike against juror number ten, X.G. The prosecutor objected, and the following exchange ensued:

MS. MAHDAVIAN [defense counsel]: We will exercise our fourth peremptory on Juror No. 10.
THE COURT: Juror No. 10, any objection from the State?
MS. QUESADA [ASA]: Yes, we got a race—
THE COURT: She is a Hispanic female. Okay.
MS. QUESADA: Yes.
MS. WINGAD [defense counsel]: Judge, she spoke about her, on her juror questionnaire about her connection to government. She has family members or her husband is a corrections officer, he is retired.
THE COURT: Former corrections officer.
MS. WINGAD: Right. Her contact with—
THE COURT: That was her only connection that we could see.
MS. WINGAD: She is still married to that individual and it is not that remote that she doesn’t have some knowledge or understanding of punishments, different types of crimes or facts supporting why individuals are in custody. Also she was questioned by Ms. Mahdavian, and I need to find the exact note.
MS. QUESADA: Does that apply to what Ms. Mahdavian has already said, jurors don’t need to possess an understanding of punishment to serve as jurors.
THE COURT: Can you remind me of that, I don’t even remember that question.
MS. QUESADA: I don’t either.
THE COURT: But I wanted to hear what they were saying.
MS. WINGAD: No, Judge, our concern is just given her connection to the criminal justice system through her husband who works in corrections.
THE COURT: Who used to work in corrections.
MS. WINGAD: Who used to work in corrections. She has a different understanding of the criminal justice system than the average juror so she’s bringing in different information than somebody else might. And there are other jurors, on this panel who spoke about sentencing and punishment and had some concerns about that. At each point the lawyers or the Court corrected those jurors to not consider those types of factors.
THE COURT: They’ll ask her the question. I’m going to deny that I’m going to leave her on the jury. She has the least connection with government. There is [sic] about thirty people on this panel that have connection with government.
Do you have anything else?
MS. WINGAD: She also said at 2:49 that an officer could have a stake in a case therefore they may not be as credible. We don’t believe that she—
THE COURT: Well that was the question that Ms. Mahdavian asked. I am assuming that that is the right answer, an officer could have a stake. That is no reason to take her off of the jury that could help you.
Anything else?
MS WINGAD: No, your Honor.
THE COURT: All right, denied.
Other than that do you accept the panel? Anything else?
MS. SANCHEZ-LEDO [ASA]: Judge, if I may before you continue I want to put something back on the record with counsel was talking about striking Ms. Juror No. 10 Ms. [X.G.], she advised because she had a relation to law enforcement. Juror No. 11 I believe is-still on the panel, has not been stricken, he has two cousins who are cops.
THE COURT: So noted. I already denied the peremptory.
Okay, let’s go to alternates.

(Emphasis added).

In Melbourne v. State, 679 So.2d 759 (Fla.1996), the Florida Supreme Court set forth a three-part procedure that must be followed whenever a peremptory strike is challenged as discriminatory. “First, the objectiiig party must make a timely objection, show that the venireperson is a member of a distinct protected group, and request that the trial court ask the striking party to provide a reason for the strike. Second, if these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike, and the burden shifts to the proponent to come forward with a race-, ethnicity-, or gender-neutral explanation. Third, if the explanation is facially race-, ethnicity-, or gender-neutral, the court must determine whether the explanation is a pretext ‘given all the circumstances surrounding the strike,’ with the focus of this inquiry being the genuineness of the explanation.” Hayes v. State, 94 So.3d 452, 461 (Fla.2012) (quoting Melbourne v. State, 679 So.2d 759, 764 (Fla.1996).

On appeal, when enforcing the procedure enunciated in Melbourne, it is important to remember that “courts begin with the premise that peremptory challenges are presumed to be exercised in a nondiscriminatory manner.” Hayes, 94 So.3d at 461; accord Melbourne, 679 So.2d at 764. The burden of persuasion rests on the opponent of the strike to show that the proponent’s reason is discriminating and pretextual. See Wynn v. State, 99 So.3d 98fr (Fla. 3d DCA 2012). See also Hayes, 94 So.3d at 461 n. 6 (“[T]he State, as the opponent of the strike, carries the burden of persuasion to prove purposeful discrimination and must demonstrate that it has overcome the presumption that the defendant’s strike was exercised in a nondis-eriminatory manner.”).

Here, both step one and step two of the three-step procedure set forth in Melbourne were satisfied by the trial court. At issue here is step three — whether the “facially race-, ethnicity-, or gender-neutral ... explanation [for the strike] is a pretext.” Hayes, 94 So.3d at 461. In determining pretext, the trial court should focus on the genuineness of the explanation offered for the strike. See Murray v. State, 3 So.3d 1108, 1120 (Fla.2009). “Melbourne teaches that to assess genuineness, the trial court must consider all relevant circumstances surrounding the strike in determining whether the proffered reason for the strike is genuine.” Hayes, 94 So.3d at 462 (emphasis added). “Relevant circumstances may include — but are not limited to — the following: the racial makeup of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” Melbourne, 679 So.2d at 764 n. 8.

While it is true that there is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext, see Johnson v. State, 706 So.2d 401, 404 (Fla. 3d DCA 1998); Davis v. State, 691 So.2d 1180,1183 (Fla. 3d DCA 1997), where, as here, a non-diseriminatory explanation is advanced for the strike and the reason advanced is reasonable, the record must contain an indication that the trial court considered all relevant circumstances in denying the strike. See Wynn, 99 So.3d at 989; Siegel v. State, 68 So.3d 281, 286 (Fla. 4th DCA 2011); Garcia v. State, 75 So.3d 871, 874-75 (Fla. 3d DCA 2011), review denied, 95 So.3d 214 (Fla. 2012); Jones v. State, 787 So.2d 154, 156-57 (Fla. 4th DCA 2001).

Here, there is no indication in the record that the trial court considered “relevant circumstances” in denying defense counsel’s peremptory strike of juror number ten, X.G. The State’s challenge to the strike was based on race and gender, i.e., a Hispanic female. See Garcia, 75 So.3d at 874, n. 2 (“Hispanics are a ‘cognizable class’ and thus a protected group for this purpose in Florida”). “Once defense counsel has given a race-neutral [or gender-neutral] reason for the strike, the trial court has the duty to determine ‘whether the opponent of the strike has proved purposeful racial [or gender] discrimination.’ ” Czaja v. State, 674 So.2d 176, 177 (Fla. 2d DCA 1996) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). The record in this case, however, shows that the trial court did not consider this issue and focused only on other jurors’ relationship with law enforcement.

Our sister court’s opinion in Chambers v. State, 682 So.2d 615 (Fla. 4th DCA 1996), is indistinguishable from the facts of this case. In Chambers, defense counsel peremptorily struck a prospective juror whose husband was a retired firefighter and police officer. After the State asked for a gender-neutral reason for the strike, the trial court sustained the State’s objection to the strike. On appeal, the defendant argued that the trial court’s denial of the peremptory strike constituted reversible error. In reversing and remanding for a new trial, the Fourth District held that the defendant’s neutral explanation that the strike was based on the background of the juror’s spouse (a retired firefighter and police officer) was “constitutionally permissible” and nothing in the record showed that, after the defense provided a neutral reason for the strike, the trial court determined “whether the party opposing the challenge ha[d] shown purposeful, invidious discrimination.” Id. at 616.

Here, as in Chambers, there is nothing in the record to show that the trial court considered any “relevant circumstances” upon which to find that the defense’s stated reason for the strike was pretextual. The State objected to the strike based on X.G.’s race and gender as a Hispanic female. The trial court, however, did not determine whether the defense was improperly striking Hispanic females. Instead, the trial court based its reasoning for denying the strike on other juror members’ connections with law enforcement.

In denying the strike, the trial court observed: “She has the least connection with government. There is [sic] about thirty people on this panel that have connection with government.” However, a review of the record shows that when the trial court made this statement the parties had reached (in sequential order) juror number twenty and selected a panel of six jurors, which eventually served as the jury. At the time that the trial court denied the defense’s strike of X.G., only three people had any “connection with government”: (1) juror number ten, X.G., whose husband was a retired corrections officer; (2) juror number eleven, P.C.P., a male who had two cousins who were police officers; and (3) juror number three, M.A.D., an African-American male who had one uncle who was a state trooper, and another uncle who had committed crimes. The State, however, had already exercised a peremptory challenge to juror number three, M.A.D., after proceeding sequentially through the first twenty jurors. Therefore, there was just one juror, other than juror number ten, who was selected to serve on the jury that had any relationship to law enforcement.

On appeal, the State relies upon this juror — juror number eleven, P.C.P., for its argument that defense counsel’s reason for the strike was not genuine, because P.C.P. had two cousins who were police officers. Having two cousins who are police officers, without more, is not a similar situation to being married to a retired corrections officer. This is especially true where the record shows that P.C.P. did not indicate on his juror questionnaire, as X.G. did, that he had a relative who was a law enforcement officer, but rather, only remembered it later, during questioning of other potential jurors.

Additionally, the trial court was incorrect in its statement “about [the] thirty people on this panel who have [a] connection with [the] government.” These remaining thirty potential jurors had yet to be considered by either the state or the defense. Because the trial court had yet to reach these thirty people in the jury selection process, they were not relevant comparators in an inquiry of whether the defense was attempting to exercise a peremptory strike “based on a reason equally applicable to an unchallenged juror.” Melbourne, 679 So.2d at 764 n. 8.

The majority’s statement that “at that point in the jury selection process, the defense had not accepted another Hispanic female” is not supported by the record. When defense counsel sought to exercise a peremptory strike against X.G., the defense had accepted two other female jurors, both of whom eventually sat on the jury — Juror Blasser and Juror Da Costa. As this Court explained in Davis v. State, 691 So.2d 1180, 1182 n. 1 (Fla. 3d DCA 1997), surnames do not determine a juror’s race or ethnicity, particularly where that juror is a woman. Here, the record indicates only the surnames of the two other female jurors, with no indication of their ethnicity. It is possible that either or both of the two other female jurors are Hispanic. Nonetheless, the selection of two other females who served on the jury panel establishes that there was no gender discrimination present and the proffered reason was genuine. Indeed, the record “is simply devoid of any ‘relevant circumstances’ upon which to find the defense’s stated reason for the strike pretextual or other than genuine.” Garcia, 75 So.3d at 875.

Turning to the separate issue of Hispanics on the panel, at the time that defense counsel moved to peremptorily backstrike juror number ten [X.G.], the defense had accepted two Hispanic males, juror number nine (Felix Clávelo Lopez) and juror number eleven (Pablo Carlos Pando). The selection of two Hispanic males, who ultimately served on the jury, establishes that the defense was not improperly trying to keep Hispanics from serving on the jury.

A trial court’s refusal to allow a peremptory challenge “is tantamount to a finding that the strike was exercised for a discriminatory purpose.” Hayes, 94 So.3d at 463; accord Wynn, 99 So.3d at 990. Because the reason proffered by defense counsel (the fact that X.G.’s husband was a retired corrections officer) was a valid race-neutral and gender-neutral reason, the trial court erred in denying the strike. See Alexander v. State, 643 So.2d 1151, 1152 (Fla. 3d DCA 1994) (reversing conviction and holding that trial court erred in denying defendant’s peremptory challenge to juror with family members in law enforcement as this proffered reason constituted a valid race-neutral reason for challenging the juror); Czaja, 674 So.2d at 177 (holding that, if the State’s objection was sufficient to trigger a Neil inquiry, a close relationship between juror and a law enforcement officer is a race-neutral reason for exercising a peremptory strike and that trial court’s decision to sustain State’s objection to defendant’s exercise of peremptory strike constituted reversible error).

Because this record does not indicate that the trial court considered circumstances relevant to whether the defense was trying to exclude female Hispanics from serving on the jury, I would reverse and remand for a new trial.

      . "The term 'backstriking' refers to ‘a party's right to retract his acceptance and object to a juror at any time before that juror is sworn.' " Hayes v. State, 94 So.3d 452, 456 n. 1 (Fla.2012) (quoting Dobek v. Ans, 475 So.2d 1266, 1267-68 (Fla. 4th DCA 1985)).

      . Significantly, after the State moved for a peremptory strike of M.A.D., the defense asked for a race-neutral reason as M.A.D. was an African-American male. The trial court never considered M.A.D.'s relationship with law enforcement when considering the defense's Melbourne inquiry.

      . During voir dire, Juror Clávelo Lopez advised the trial court that he had a child attending college in Cuba.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alvaro GORRIN, Jr., Appellant, v. POKER RUN ACQUISITIONS, INC., et al., Appellees.
    No. 3D12-2558.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.

      Mendez & Mendez; Kreusler-Walsh, Compiani & Vargas, P.A., and Jane Kreus-ler-Walsh and Stephanie L. Serafín, West Palm Beach, for appellant.
    Mitrani Rynor Adamsky & Toland, P.A., and Isaac Mitrani, Miami Beach; Cohen-Ruiz, P.A., and Robert A. Cohen, Mario M. Ruiz, Miami, and R. Edson Briggs, Jr., for appellees.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Alvaro Gorrín appeals an adverse final summary judgment determining that he fraudulently transferred a residential property to others following the entry, in a separate and prior case, of a final summary judgment against him exceeding $19,000,000.00. After the entry of the final judgment in the fraudulent transfer case, a panel of this Court reversed and remanded the final summary judgment and judgment lien against Gorrín in the underlying (guaranty/debt collection) case. Gorrin v. Poker Run Acquisitions, Inc., 77 So.3d 739 (Fla. 3d DCA 2011).

Gorrín then moved the trial court, based on this Court’s reversal of the judgment lien, to modify its final summary judgment in the fraudulent transfer case. The trial court granted that motion in part, vacating three of eleven numbered paragraphs within the final summary judgment. Those three paragraphs addressed the validity, attachment, and execution of the judgment lien as against the property transferred by Gorrín. Gorrin’s appeal from the judgment as modified is the case presently before us.

While this appeal was pending, however, the appellee/creditor, Poker Run Acquisitions, obtained a new final money judgment in the guaranty/debt collection case against Gorrín after remand and trial. That final judgment (May 2013) exceeds $30,000,000.00. Gorrín has also appealed that judgment.

We conclude that we lack jurisdiction to address the fraudulent transfer judgment as modified after the reversal of the debt collection/guaranty judgment against Gor-rín (and before the entry of a final judgment on remand in May 2013). Judicial labor in the circuit court fraudulent transfer action is not complete, as the trial court has not yet determined whether the May 2013 judgment lien has attached to the property alleged to have been fraudulently transferred by Gorrín, and whether Poker Run Acquisitions may execute upon that property in full or partial satisfaction of the later and increased lien. The earlier, partially-vacated final summary judgment in the fraudulent transfer case is thus non-final and non-appealable. Hallock v. Holiday Isle Resort & Marina, Inc., 885 So.2d 459, 461 (Fla. 3d DCA 2004).

At oral argument, Gorrín urged us (in the alternative) to treat this case as a petition for certiorari. We decline to do so, concluding that Gorrín has not demonstrated any violation of a clearly established principle of law resulting in a miscarriage of justice. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003).

Appeal dismissed.

      . The appellee’s guaranty/debt collection suit against Gorrín is Miami-Dade Circuit Court Case No. 08-36794-CA-06. The subsequent fraudulent transfer suit against him is Miami-Dade Circuit Court Case No. 10-10011-CA-08.

      . Gorrin’s appeal from the May 2013 judgment for damages after remand remains pending and is our Case No. 3D13-1792. No stay is in effect.


author: ROTHENBERG, J.

text:
    Carlos FLORES, Petitioner, v. Vanessa SANCHEZ, Respondent.
    No. 3D13-1360.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.

      Denise M. Scanziani, Esq., P.A., and Marie L. Báez Lorenzo and Denise Martinez Scanziani, for petitioner.
    The Law Offices of Marina Barturen, and Marina Barturen, for respondent.

      Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Carlos Flores (“Mr. Flores”) seeks cer-tiorari review of the 'trial court’s order granting Vanessa Sanchez’s (“the Mother”) ore tenus motion to compel Mr. Flores to submit to paternity testing. Because Mr. Flores has demonstrated that he will suffer “irreparable harm” if the order stands and that the order departs from the essential requirements of law, we grant the petition, quash the order under review, and remand for further proceedings consistent with this opinion.

I. FACTS

The trial court’s order compelling Mr. Flores to submit to paternity testing arises from an action filed by the Mother pursuant to section 742.10, Florida Statutes (2011), in which she attempts to rebut Mr. Flores’ presumption of paternity based on fraud and duress. In this action, the Mother seeks: (1) to disestablish Mr. Flores’ paternity and to have his -name removed from B.F.’s (“the Child”) birth certificate by the Office of Vital Statistics; (2) a determination that the alleged biological father is in fact the Child’s biological father through scientific testing; and (3) to have the biological father’s name added to the Child’s birth certificate as the legal father.

Based on the limited record before this .Court, the pertinent facts are as follows. Prior to the Child’s birth, the Mother wished to give up the Child, and she and Mr. Flores agreed that Mr. Flores would be named as the Child’s father on the Child’s birth certificate and, upon the Child being released from the hospital, the Child would permanently live with, and be raised by, Mr. Flores and his wife (“Mrs. Flores”). Further, the Mother, Mr. Flores, and Mrs. Flores memorialized their plan in an agreement that was notarized eight days after the Child’s birth, which states, in part, as follows:

I, Vanessa Sanchez hand over any/all rights concerning [the Child] to her legal guardians [Mrs. Flores] and her Legal Father. All parties have agreed that [the Child] will be the sole responsibility and her guardianship for her until her 21st Birthday. I, Vanessa Sanchez being of sole [sic] mind relinquish any maternal rights. I also advise that I am of clear mind, and have done so voluntarily to give the baby to them as her parents. I will have no contact, nor action with the child, unless [Mr. Flores and Mrs. Flores] extend this courtesy to me at their discretion. I am sure that they will treat and care for her as if she was her biological parents and will not demand or request any rights concerning her in the future. Let this agreement serve as to fully give up any rights to the Legal Father as stipulated on her Legal Birth Certificate. Also, in the future [Mrs. Flores] will appear on the mother’s name area in the Birth Certificate therefore declaring her as [the Child’s] birth and natural mother.

As planned, the Child’s birth certificate, which was filed with the Office of Vital Statistics two days after the Child’s birth in April 2010, reflects that the Child’s parents are the Mother and Mr. Flores. Further, the Mother allowed Mr. Flores and Mrs. Flores to take the Child home from the hospital to reside exclusively with Mr. Flores and Mrs. Flores. However, the Mother’s name still appears on the Child’s birth certificate.

II. ISSUE

The issue presented in this petition for writ of certiorari is whether the trial court’s order compelling Mr. Flores to submit to paternity testing constitutes a departure from the essential requirements of law, resulting in material injury for the remainder of the case that cannot be remedied on appeal. See Rodriguez v. Miami-Dade Cnty., 117 So.3d 400, 404 (Fla.2013) (stating that when a party seeks certiorari relief, the threshold question is whether there is a material injury that cannot be corrected on appeal — “irreparable harm” — and whether the order under review constitutes a departure from the essential requirements of law); State, Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157, 159 n. 1 (Fla. 1st DCA 2007) (granting a petition for writ of cer-tiorari and quashing an order compelling paternity testing because an order compelling paternity testing could cause irreparable harm); Dep’t of Revenue ex rel. T.E.P. v. Price, 958 So.2d 1045, 1046 (Fla. 2d DCA 2007).

III. ANALYSIS

“[N]o party to any family law proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity ‘in controversy and (2) ‘good cause’ exists for the testing.” Travis, 971 So.2d at 162 (quoting Dep’t of Revenue ex rel. Freckleton v. Goulbourne, 648 So.2d 856, 857-58 (Fla. 4th DCA 1995)) (holding that al though paternity was “in controversy” as a result of the Department of Revenue instituting child support proceedings, the legal father who signed voluntary acknowledgment of paternity did not establish “good cause” because his reason for seeking paternity testing was “to be sure” that he was the biological father); see also State, Dep’t of Revenue ex rel. Carnley v. Lynch, 53' So.3d 1154, 1157 (Fla. 1st DCA 2011) (finding that “ ‘good cause’ would have existed for genetic testing under these facts if [the legal father who signed voluntary acknowledgment of paternity] had instituted proceedings under section 742.10(4), Florida Statutes (2009), or section 742.18(1), Florida Statutes (2009), to ‘disestablish’ paternity.”) (quoting Travis, 971 So.2d at 161).

Prior to ordering paternity testing, the trial court must also determine that the testing would be in the child’s best interest. See R.S.R. v. A.K., 801 So.2d 325, 325 (Fla. 1st DCA 2001) (granting petition for writ of certiorari and quashing order compelling legal father to submit to paternity testing where trial court failed to consider whether paternity testing was in child’s best interests, and ordering that “[o]n remand, the trial court shall appoint a guardian ad litem to represent the child’s interest before resolving the issues.”). In the instant case, the Mother’s action placed paternity “in controversy,” and therefore, the focus will be on whether “good cause” exists for ordering the paternity testing and whether the trial court determined that the paternity testing would be in the Child’s best interests.

A. Whether “good cause” exists for ordering Mr. Flores to submit to paternity testing

1. Rebuttable presumption that Mr. Flores is the Child’s legal father

Section 382.013, Florida Statutes (2010), requires that a birth certificate be filed within five days of a live birth. When a birth occurs in a hospital, “the person in charge of the facility shall be responsible for preparing the certificate, certifying the facts of the birth, and filing the certificate with the local registrar.” § 382.013(l)(a). As to entering the name of the father on the birth certificate when the mother is unmarried at the time of the child’s birth, section 382.013(2)(e) provides as follows:

If the mother is not married at the time of the birth, the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by both the mother and the person to be named as the father. The facility shall give notice orally or through the use of video or audio equipment, and in writing, of the alternatives to, the legal consequences of, and the rights, including, if one parent is a minor, any rights afforded due to minority status, and responsibilities that arise from signing an acknowledgment of paternity, as well as information provided by the Title IV-D agency established pursuant to s. 409.2557, regarding the benefits of voluntary establishment of paternity. Upon request of the mother and the person to be named as the father, the facility shall assist in the execution of the affidavit, a notarized voluntary acknowledgment of paternity, or a voluntary acknowledgment of paternity that is witnessed by two individuals and signed under penalty of perjury as specified by s. 92.525(2).

(emphasis added).

It is undisputed that the mother was unmarried when she gave birth to the Child at a hospital located in Miami-Dade County. Thus, in preparing the birth certificate for filing, “the person in charge of the [hospital]” could not have named Mr. Flores as the Child’s father on the birth certificate unless the Mother and Mr. Flores executed an affidavit or acknowledgment of paternity. See § 382.013(l)(a); § 382.013(2)(c). As Mr. Flores’ name appears on the Child’s birth certificate as the Child’s father, we must assume that the hospital complied with section 382.013(2)(c) by obtaining an affidavit or a voluntary acknowledgment of paternity from Mr. Flores and the Mother. See §§ 382.013(2)(c), 382.013(l)(a). Further, as neither Mr. Flores nor the Mother sought to rescind the voluntary acknowledgment of paternity within sixty days, as set forth in section 742.10, there is a presumption that Mr. Flores is the Child’s legal father. See Travis, 971 So.2d at 160 (noting that a voluntary acknowledgment of paternity executed pursuant to section 382.013 establishes a rebuttable presumption of paternity).

At this juncture, although Mr. Flores is presumed to be the Child’s legal father, the presumption is rebuttable. Section 742.10(1) gives the individuals named on a birth certifícate sixty days to rescind the voluntary acknowledgment of paternity, but after that sixty-day period has passed, the presumption can only be rebutted by proof of “fraud, duress, or material mistake of fact.” See § 742.10(4) (“After the 60-day period referred to in subsection (1), the signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger .... ”).

In the instant ease, it is undisputed that neither Mr. Flores nor the Mother rescinded any acknowledgment of paternity during the sixty-day period set forth in section 742.10(1). As such, the Mother can rebut the presumption of paternity only if she can establish fraud, duress, or material mistake of fact.

2. The Mother’s challenge to Mr. Flores’ presumption of paternity based on fraud and duress

The Mother challenges Mr. Flores’ established paternity based on “fraud, duress, and diminished capacity” by alleging that Mr. Flores fraudulently signed the birth certificate knowing that he could not be the Child’s biological father because she and Mr. Flores have never maintained an intimate relationship. The Mother claims the “fraud was perpetrated solely for the purpose of bypassing the adoption requirements as set forth in the Florida Statutes, Chapter 63.” We disagree that the alleged “fraud” conclusively rebuts Mr. Flores’ presumption of paternity.

In Allison v. Medlock, 983 So.2d 789, 790 (Fla. 4th DCA 2008), the Fourth District Court of Appeal addressed an order requiring Mr. Allison to submit to DNA testing in a paternity action. When the child was born in 2003, Mr. Allison and the mother executed a paternity affidavit pursuant to section 382.013. Allison, 983 So.2d at 790. For approximately the next four years, Mr. Allison was treated as the child’s father, and both Mr. Allison and his family were “very involved in the child’s life.” Id. Paternity became an issue in September 2007 when the mother relocated to another state without Mr. Allison’s knowledge. That same month, Mr. Allison filed a Petition to Determine Paternity and for Related Relief and also filed a Verified Emergency Motion to Grant Temporary Custody/Visitation. Id. The following month, the mother filed an answer to Mr. Allison’s petition, and also filed a counter-petition to determine paternity and a motion for scientific testing. Id. The trial court found that the paternity affidavit complied with section 382.013 and, therefore, there was a rebuttable presumption that Mr. Allison was the child’s father. Id. The trial court, however, granted the mother’s motion for DNA testing.

In reviewing the order compelling Mr. Allison to submit to DNA testing, the Fourth District Court of Appeal noted that during a hearing before the trial court, the mother testified that there was a material mistake of fact because, before the child’s birth, both she and Mr. Allison knew that Mr. Allison was not the child’s biological father, but nonetheless signed the paternity affidavit. In rejecting the mother’s argument, the Fourth District stated:

According to this testimony, neither party was operating under a mistake of fact at the time the paternity affidavit was signed. Likewise, she cannot establish fraud. She was not the victim of any fraud, she was complicit in signing the affidavit, and she cannot now benefit from her own alleged fraud. Finally, she did not present any credible evidence of duress. The trial court did not make any findings on the record or in its order that the mother has demonstrated either fraud, duress, or material mistake of fact.

Id. at 790-91 (emphasis added).

Likewise, in Van Weelde v. Van Weelde, 110 So.3d 918, 922 (Fla. 2d DCA 2013), the Second District Court of Appeal found that when a child’s mother “signed the voluntary Acknowledgement of Paternity with full knowledge that the [legal father] was not the biological father,” the child’s mother “was complicit in any alleged fraud.” Under those circumstances, “a parent may be estopped from challenging the validity of the acknowledgment of paternity.” Id.

In the instant case, based on the record before this Court, it does not appear that the trial court addressed whether the Mother can meet her burden of establishing either fraud or duress as required by section 742.10(4), or whether the Mother’s allegations of duress or fraud are supported by any reliable evidence. Neither the order under review nor the transcript of the hearing involving the ore tenus motion for paternity testing contain any findings as to whether the Mother can demonstrate fraud or duress. Moreover, based on the Agreement and the facts asserted by the Mother in her petition to disestablish paternity, it does not appear that she could possibly demonstrate that she was the victim of fraud because she was complicit in the alleged fraud. See Allison, 983 So.2d at 790-91; see also Van Weelde, 110 So.3d at 922.

Further, although the Mother asserts the statutory ground of duress in seeking to rebut the presumption of paternity in Mr. Flores’ favor, her petition does not assert any facts substantiating her allegation of duress. Rather, the Agreement entered into by Mr. Flores and Mother indicates that she was not under duress— she was of “clear mind” and voluntarily agreed to the arrangement. Therefore, despite the Mother’s challenge to Mr. Flores’ paternity under section 742.10(4) on the basis of fraud and duress, the Mother, at this point, has not established the “good cause” needed to order the paternity testing because she has not demonstrated that any fraud or duress occurred.

B. Whether compelling Mr. Flores, the Child’s legal father, to submit to paternity testing is in the Child’s best interests

Even if the trial court had found that the Mother met her burden of establishing either fraud or duress, and therefore, “good cause” for ordering the paternity testing, the trial court nonetheless should have made findings as to whether ordering paternity testing was in the Child’s best interest. See Price, 958 So.2d at 1046 (“Florida favors a strong ‘public policy that in a case [contesting paternity], DNA tests to establish that a man other than the legal father of a child is the biological father will not be ordered unless the court determines that it is in the best interest of the child.’ ”) (alteration in original) (quoting Callahan v. Dep’t of Revenue ex rel. Roberts, 800 So.2d 679, 680 (Fla. 5th DCA 2001)); Hebner v. Barry, 834 So.2d 305, 306-07 (Fla. 4th DCA 2003) (holding that the trial court departed from the essential requirements of law in ordering paternity testing where the trial court did not determine that “there is a clear and compelling reason why the child’s best interests would be served by overcoming the presumption that the legal father is the father”). “[T]he presumption of legitimacy is based on the policy of protecting the welfare of the child, i.e., the policy of advancing the best interests of the child.” Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 307 (Fla.1993); see also Van Weelde, 110 So.3d at 921. “Once children are born legitimate, they have a right to maintain that status both factually and legally if doing so is in their best interests.” Privette, 617 So.2d at 307 (citing Art. I, § 9, Fla. Const.). Further, “[t]he child’s legally recognized father likewise has an unmistakable interest in maintaining the relationship with his child un-impugned, such that his opposition to the blood test and reasons for so objecting would be relevant evidence in determining the child’s best interests.” Id. at 307-08 (citations omitted); Van Weelde, 110 So.3d at 921. Therefore, before ordering paternity testing when a child has a legal father, “the trial court is required to hear argument from the parties, including the legal father if he wishes to appear and a guardian ad litem appointed to represent the child.” Privette, 617 So.2d at 308 (footnotes omitted).

In the instant case, based on the record before this Court, the trial court failed to determine whether ordering the Child’s legal father, Mr. Flores, to submit to paternity testing would be in the Child’s best interest. Although an evidentiary hearing is necessary to address the Child’s best interest, based on the limited record before this Court, it appears that the Mother will find it difficult to meet her burden of proving by clear and convincing evidence that it would be in the Child’s best interest to compel Mr. Flores to submit to a paternity test. See Privette, 617 So.2d at 308 (holding that the party seeking paternity testing “bears the burden of proving ... by clear and convincing evidence” that “the child’s best interests will be better served even if the blood test later proves the child’s factual illegitimacy.”). The record reflects that the Child, who is now almost four years old, began to live with Mr. Flores when she was only two days old. At this point, there is nothing in the record to discount the likelihood that during this almost four-year period, the Child and Mr. Flores have formed a loving and caring child-father relationship and that Mr. Flores has provided for the Child financially.

In contrast, it appears that the alleged biological father knew that the Mother was pregnant and, although he believed that he was the Child’s biological father, he took absolutely no action to assert his alleged paternity. At this point, even if it were determined that the alleged biological father is in fact the Child’s biological father, it most likely will not be in the Child’s best interests to disestablish Mr. Flores’ paternity and have the alleged biological father named as the Child’s father on her birth certificate as requested by the Mother. As the Florida Supreme Court recognized:

It is conceivable that a man who has established a loving, caring relationship of some years’ duration with his legal child later will prove not to be the biological father. Where this is so, it seldom will be in the children’s best interests to wrench them away from their legal fathers and judicially declare that they now must regard strangers as their fathers. The law does not require such cruelty toward children.

Privette, 617 So.2d at 309; see also Allison, 983 So.2d at 791 (“Florida favors a strong public policy that in a case [contesting paternity], DNA tests to establish that a man other than the legal father of a child is the biological father will not be ordered unless the court determines that it is in the best interest of the child.”) (alteration in original) (emphasis added) (quoting Price, 958 So.2d at 1046) (internal quotation marks omitted).

TV. CONCLUSION

The trial court failed to determine whether “good cause” exists to order paternity testing based on the Mother’s allegations of fraud and duress and also failed to determine whether compelling Mr. Flores to submit to paternity testing would be in the Child’s best interest. For these reasons, we grant the petition for writ of certiorari and quash the order requiring Mr. Flores to submit to paternity testing. On remand, the Mother may request an evidentiary hearing to address these issues. However, prior to any hearing addressing the Child’s best interest, the trial court must appoint a guardian ad litem to represent the Child as requested by Mr. Flores. Privette, 617 So.2d at 308.

Petition granted; order quashed; and remanded for further proceedings.

      . Mr. Flores’ counsel filed a notice of non-final appeal. As counsel likely recognized that the order compelling Mr. Flores to submit to paternity testing is a non-final, non-appealable order, see Fla. R. App. P. 9.130(3), counsel filed a petition for writ of certiorari rather than an initial brief. We, therefore, treat Mr. Flores’ notice of non-final appeal as a petition for writ of certiorari. See Allison v. Medlock, 983 So.2d 789, 790 (Fla. 4th DCA 2008) (redesignating a "purported appeal of an order requiring DNA testing in a paternity action” as a petition for writ of certiorari).

      . The following documents were provided to
      this Court by the parties: (1) Complaint for Determination of Paternity and Timesharing Paternity filed on January 4, 2011; (2) Amended Complaint for Determination of Paternity and Timesharing; (3) Order Denying the Mother’s Motion for Scientific Paternity Testing without prejudice to amend, entered by Judge Bernard S. Shapiro on October 6, 2011; (4) transcript of hearing conducted by Judge Sarduy on April 11, 2013; (5) order granting the Mother’s ore tenus motion to compel Mr. Flores to submit to paternity testing entered by Judge Sarduy on April 11, 2013; (6) the Child’s Certificate of Birth issued by State of Florida Office of Vital Statistics, naming the Child's parents as the Mother and Mr. Flores; (7) transcript of Mr. Flores' deposition; (8) a hospital bill; and (9) an agreement between the Mother, Mr. Flores, and Mr. Flores' wife.

      . During the pendency of this action, the Mother has been granted timesharing with the Child, but there is no indication in the record that the alleged biological father, who was named as a respondent in the Mother’s action, has sought any timesharing with the Child.

      . Section 382.013(2)(a) provides that "[i]f the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.” There is no indication in the record that Mr. Flores and the Mother misinformed the hospital as to the Mother's marital status.

      . The limited record is unclear on this point.

      . Section 742.18(l)(a) "establishes circumstances under which a male, may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child.” (emphasis added). As the Mother, not Mr. Flores, is the party seeking to disestablish paternity, this section is not applicable.

      .As diminished capacity is not a basis to challenge a legal father's paternity under section 742.10(4), the discussion is limited to fraud and duress.

      . The lower tribunal’s docket indicates that Mr. Flores’ request to appoint a guardian ad litem was denied by the trial court.


author: SALTER, J.

text:
    TRANS HEALTHCARE, INC., Appellant, v. Bonnie CREEKMORE, Appellee.
    No. 3D13-1862.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.

      Fowler White Boggs, and Hala San-dridge, Tampa, and Sara Lahlou-Amine, for appellant.
    Wilkes & McHugh, and Isaac R. Ruiz-Carus and Bennie Lazzara, Jr., and Joanna M. Greber, Tampa; Freidin & Dobrin-sky and Joel Brown, Miami, for appellee.
    Before SHEPHERD, C.J., and SALTER and SCALES, JJ.
   SALTER, J.

Trans Healthcare, Inc. (THI), appeals a 2013 circuit court order determining that the court has continuing jurisdiction over the case and parties. The case began in 2009, when a Maryland court’s order appointing a receiver for THI was “domesticated” in the circuit court in Miami. Finding that the appellees properly invoked the trial court’s jurisdiction over the parties and subject matter under Florida Rule of Civil Procedure Rules 1.540(b)(4) and (5), we affirm.

The Maryland Receivership

The Miami circuit court case began in February 2009 as an action by THI, a Delaware corporation based in Maryland, to obtain Florida recognition for an order appointing a receiver for THI. The order appointing the receiver had been entered about a month earlier by a Maryland circuit court in Baltimore. Based on THI’s invocation of the Florida Enforcement of Foreign Judgments Act, section 55.501-.509, Fla. Stat. (2009), the Florida court entered an order in July 2009 granting recognition and “full faith and credit to the order appointing receiver except that the determination of a stay shall be left to the discretion of each court in the pending actions. The Court has reviewed the Maryland order and sees no claims bar date.”

The six defendants in THI’s Florida case to obtain recognition of the Maryland receivership order were Florida plaintiffs who had sued THI and affiliates in Ala-chua, Pinellas, and Polk Counties for injuries and wrongful death. We refer to those six Florida plaintiffs in the other lawsuits, defendants here, collectively as the “Estates,” and they are the appellees in the present case.

The Estates did not contest the validity of the Maryland order in the recognition case as permitted by section 55.509, Florida Statutes (2009). See, e.g., Cadle Co. v. Jay, 907 So.2d 684, 636-37 (Fla. 3d DCA 2005). Nor did the Estates appeal the Florida recognition order after it was entered in 2009. Initially, the THI receiver appeared on behalf of THI to defend the various Florida lawsuits brought by the Estates. However, when the THI receiver determined that the available assets of the receivership were barely sufficient to pay the cost of defending the lawsuits in Florida and elsewhere, the receiver abandoned the defense of those proceedings. The Estates suing THI ultimately recovered “empty chair” jury verdicts and Florida judgments collectively exceeding a billion dollars, but allegedly did not file timely claims in the Maryland receivership case. So far as the record reflects here, the Estates have not obtained any subsequent order in the Maryland receivership discharging the receiver, modifying the claims bar date, or addressing the receiver’s authority to commence an ancillary receivership in Florida.

In 2011, the Estates moved in the Miami case to vacate the “domesticated” 2009 Maryland order appointing the receiver. The Estates claimed that: THI misled the Miami circuit court in domesticating the order; the Maryland order appointing the receiver was void for lack of subject matter jurisdiction; and the Maryland order was obtained ex parte, without proper notice to unsecured creditors (including the Estates). In a 2013 supplement to that motion, the Estates further alleged that the receiver “has used the domestication order as a tool to actively defeat and oppose the claims of the Estates in various state and federal courts throughout the State, for the purpose of avoiding liability and payment of debts to lawful creditors and litigants, including the Estates.” The Estates asked the Miami circuit court to dismiss the domestication action, vacate the 2009 domestication order, revoke the authority of the Maryland receiver to appear in Florida courts, and declare the receiver’s actions in Florida to be void ab initio.

Following a hearing in 2013, the circuit court in Miami overruled THI’s objection that it lacked jurisdiction to address the Estates’ motion and supplement, but did not explicitly grant or deny the relief sought by them. The court noted a concern regarding the representations made at the time of the 2009 domestication order, “in view of subsequent actions” taken by the THI receiver. The court held that it had “continuing jurisdiction over the matter, and will hear additional matters as they present themselves and will enter orders on those matters.” This appeal by THI followed.

Analysis

The parties are on common ground that our review of the jurisdictional, procedural, and substantive legal issues relating to the 2013 Florida order is de novo. We agree. Van Poyck v. State, 961 So.2d 220, 224 (Fla.2007) (pure questions of law discernible from the record are governed by the de novo standard of review).

THI argues initially that we have jurisdiction to review the 2013 Florida order under Florida Rule of Appellate Procedure 9.130(a)(4), sometimes referred to as the “non-final after final” provision, and that the circuit court erred by concluding that it has continuing jurisdiction over the issues and parties. THI maintains that the 2009 order domesticating the Maryland court order appointing a receiver for THI was a final judgment which was not appealed and did not create an “ancillary receivership” in Florida.

The Estates argue that the 2009 Florida “full faith and credit” order was a non-final order — because it established only the capacity of the Maryland receiver, but granted no relief to him — with the result that we have no jurisdiction to review the Florida court’s 2013 order. The Estates maintain, in the alternative, either that THI itself lacked standing to appear in Florida litigation (by virtue of the fact that the receiver was granted exclusive authority to prosecute and defend lawsuits involving THI), or that the legal effect of the 2009 order was to open an ancillary receivership in Florida, in which THI could sue and be sued. The Estates point to THI’s commencement, through its receiver appointed by the Maryland court, of a petition for certiorari in the District Court of Appeal of Florida, Second District, and to this Court’s opinion in Belle Island Investment Co., Ltd. v. Feingold, 453 So.2d 1143 (Fla. 3d DCA 1984) (recognizing the appointment of a receiver appointed in a foreign country, and permitting the enforcement in Florida of an injunction obtained in the foreign country by that receiver).

I. Domestication, Comity, and Ancillary Receivership

The circuit court case in Florida began on the wrong foot-a misstep by THI, not the court. The order appointing the receiver in Maryland was not a final judgment, order, or decree entitled to “full faith and credit,” “domestication,” or “recognition.” However, the order of another state appointing a receiver to preserve and protect the assets, liabilities, and operations of a corporation may be given effect in Florida — with respect to Florida assets, liabilities, and operations — as a matter of comity or under Florida’s business corporations law.

Under Article IV, section 1 of the Constitution of the United States, the Maryland order was not entitled to full faith and credit in Florida. “Full faith and credit” and “domestication” of a judgment entered by a court in another state is available in the case of a final judgment, not an interlocutory order. Baker v. General Motors Corp., 522 U.S. 222, 118 S.Ct. 657, 189 L.Ed.2d 580 (1998); Joannou v. Corsini, 543 So.2d 308, 310 (Fla. 4th DCA 1989). Finality, for this purpose, is determined under the laws of the other state. Turner v. Temple, 625 So.2d 101 (Fla. 2d DCA 1993).

The Florida Enforcement of Foreign Judgments Act establishes the procedure for the recognition of “foreign judgments,” defined as “any judgment, decree, or order of a court of any other state or of the United States if such judgment, decree, or order is entitled to full faith and credit in this state.” § 55.502(1), Fla. Stat. (2009). The use of the terms “decree” and “order” in that definition does not eliminate the constitutional requirement for finality.

In the case of the 2009 Maryland receivership order, the order established the receiver’s authority, but did not adjudicate any specific claim by or against the receiver. The order was not a “final” order as a matter of Maryland law. Md. Code, Courts <& Jud. Proc. Art. § 12-303(3)(iv). As a result, the 2009 order of appointment was not entitled to “full faith and credit” for purposes of the Florida Enforcement of Foreign Judgments Act.

There were, however, three procedures available to the Maryland receiver regarding Florida assets and liabilities. First, the receiver could have filed an independent action to recover assets, obtain declaratory relief, or otherwise proceed in Florida on behalf of the out-of-state corporation for which he or she acted. Under the doctrine of comity between states, the Florida court ordinarily gives effect to the out-of-state order. Farley v. Farley, 790 So.2d 574, 575 (Fla. 4th DCA 2001); Metro. Inv. Corp. v. Buchler, 575 So.2d 262 (Fla. 3d DCA 1991). See generally, Nahar v. Nahar, 656 So.2d 225 (Fla. 3d DCA 1995). Second, the receiver could have followed the same procedure regarding the pending lawsuits, moving to intervene or to be substituted for the foreign corporation in receivership, again asking the Florida courts in Alachua, Pinellas, and Polk Counties to give effect to the receivership order as a matter of comity.

Third, the receiver could have invoked the statutory “ancillary receivership” provision available under the Florida Business Corporation Act, section 607.1432(6), Fla. Stat. (2009). None of these options required, and the receiver was not entitled to, “full faith and credit” as to every aspect of the Maryland order under the Florida Enforcement of Foreign Judgments Act. Nor does the record explain why an action would be brought in Miami (by a receiver from Maryland), where there were no apparent assets or liabilities involving THI. Nonetheless, these shortcomings were not raised by the Estates in 2009, nor was there an appeal from the “full faith and credit” order.

II. The Florida Court’s 2013 Order

In the present case, the Maryland order of appointment was not before the Miami-Dade circuit court again until the Estates moved to vacate the appointment order and for other relief. In substance, that motion should be treated as a motion for relief from the recognition order under Florida Rule of Civil Procedure 1.540(b)(4) or (5). The problem, however, is that the Florida court could not address the substantive issues raised by the Estates, all of which are directed at (a) the propriety of the receivership order in Maryland entered by the court in Baltimore and (b) the validity of actions taken by the Maryland receiver in the Maryland proceeding as well as the Estates’ lawsuits in Alachua, Pinellas, and Polk Counties.

As a result, the Miami circuit court temporized. It overruled an objection to its jurisdiction (because in a proper case, and following a further order by the Maryland court regarding the receivership, there might be jurisdiction in Florida to give effect to that further order as a matter of comity). The court neither granted nor denied the relief sought by the Estates, since no relief was sought in furtherance of the Maryland order in the Miami-Dade circuit court. No error has been shown by THI regarding the Florida circuit court’s 2013 conclusion that it has continuing jurisdiction over the parties and issues inherent in the 2009 order appointing receiver, and regarding that court’s refusal to vacate or modify the Maryland order on the basis of the record before it.

We also reject the Estates’ argument that the Florida recognition order created an ancillary receivership here. The Florida circuit court did not independently consider any alleged basis for the appointment of a receiver; did not itself appoint a receiver; did not specify the scope of the receivership; and did not require a bond, inventory, or periodic receivership reports. See Fla. R. Civ. P. 1.620. The Miami court recognized the Maryland order as a matter of comity, but did not address the appointment and authority of an ancillary receiver for THI in Florida.

Affirmed.

      . THI previously petitioned for a writ of prohibition to quash the order in question on the grounds that the trial court lacked any continuing jurisdiction over the parties and subject matter; Trans Healthcare, Inc. v. Creekmore, 122 So.3d 378 (Fla. 3d DCA 2013). That petition was denied.

      . Additional background regarding the Estates and the THI receiver are detailed in In re Fundamental Long Term Care, Inc., 500 B.R. 140 (Bankr.M.D.Fla.2013).

      .The Estates allege that the Maryland court has before it a 2011 motion to vacate the THI receivership order and to declare all actions taken pursuant to that order void ab initio. In the absence of an order granting such relief, the Florida circuit court did not rule on those issues.

      . Had the Maryland court's 2009 interlocutory receivership order been accorded comity rather than full faith and credit, it would seem to have been an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(D) (as an order granting or denying the appointment of a receiver, or terminating or refusing to terminate a receivership), although that classification is not free from doubt. Because that is not directly presented in the present case, we do not consider or decide that point.


author: WELLS, Judge.

text:
    BIG BANG MIAMI ENTERTAINMENT, LLC., and Carlos Ojeda, Appellants, v. Ayman MOUMINA, Appellee.
    No. 3D13-2234.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.

      Lubell & Rosen, Marshall A. Adams and Adi Amit, FtLauderdale, for appellants.
    Roberto Matus, Miami Beach, for appel-lee.
    Before WELLS, SUAREZ and LAGOA, JJ.
   WELLS, Judge.

Big Bang Miami Entertainment, LLC and Carlos Ojeda appeal from denial of their Florida Rule of Civil Procedure 1.540 motion to set aside a default judgment claiming that the judgment is void. We affirm the order as to the judgment against Big Bang, but reverse as to the judgment against Ojeda.

In October of 2012, Big Bang borrowed a substantial sum from Ayman Moumina and executed a promissory note agreeing to repay the amount borrowed together with interest by December 3, 2012. The note was personally guaranteed by Ojeda.

On January 11, 2013, three checks were tendered to Moumina for the total amount of the principal and interest due under the note. All three checks were personalized checks bearing the name and address of the account holder:

BIG BANG MIAMI ENTERTAINMENT LLC

7900 HARBOR ISLAND DR., APT 1122

MIAMI, FL 33141

Each of the checks was signed by Carlos Ojeda, Big Bang’s CEO and president, but nowhere noted that he was signing in a representative capacity. All three checks were dishonored for insufficient funds.

In February 2013, Moumina filed a one count complaint seeking treble damages from both Big Bang and Ojeda for issuing the worthless checks. See § 68.065(3)(a), Fla. Stat. (2013) (providing that the maker or drawer of a worthless check may be liable to the payee for the amount owing and “for damages of triple the amount so owing”). No claim to collect on the note or to enforce Ojeda’s personal guarantee was alleged. After Big Bang and Ojeda failed to respond to the complaint, judgment was entered against both Big Bang and Ojeda for the amount of the three checks plus triple that amount as provided by section 68.065. Four months later, both Big Bang and Ojeda sought to set aside the judgment, their 1.540 motion claiming the judgment was void. The motion was denied.

We find no merit in that claim as to Big Bang. Moumina stated a valid cause of action pursuant to section 68.065(3)(a), as to it. Section 673.4021 of the Florida Statutes provides that when an individual acting as the representative of another signs an instrument on behalf of the person or entity represented but fails to indicate that he or she is signing in a representative capacity, the represented person or entity is legally bound:

If a person acting, or purporting to act, as a representative signs an instrument by signing either the name of the represented person or the name of the signer, the represented person is bound by the signature to the same extent the represented person would be bound if the signature were on a simple contract. If the represented person is bound, the signature of the representative is the “authorized signature of the represented person” and the represented person is liable on the instrument, whether or not identified in the instrument.

§ 673.4021(1), Fla. Stat. (2013). Thus, Big Bang was bound when Ojeda signed the Big Bang check in his representative capacity. There is no question that Ojeda was authorized to execute documents on Big Bang’s behalf. The promissory note executed by Big Bang confirms this to be a fact since Ojeda signed that note as CEO and president on Big Bang’s behalf. The complaint filed below also confirms that Ojeda signed only in a representative capacity, stating that he “executed three separate written orders in the name of Big Bang.” And, the face of the checks signed by Ojeda clearly show that the account on which they were drawn belonged to Big Bang. Thus, as a matter of law, Big Bang was legally liable for these checks.

Ojeda did not, however, bind himself by his signature on the Big Bang check. As this court in Medina v. Wyche, 796 So.2d 622, 623 (Fla. 3DCA 2001), explained, the purpose of section 673.4021, is to confirm that a company’s check binds only the company, even if the company’s agent signs in his or her own name:

The official comment [to Revised Article 3 of the Uniform Commercial Code, Chapter 92-82, sections 2, 60, and 62 of the Laws of Florida) was] intended to address the situation now before us:
3. Subsection [3] is directed at the check cases. It states that if the check identifies the represented person the agent who signs on the signature line does not have to indicate agency status. Virtually all checks used today are in personalized form which identify the person on whose account the check is drawn. In this case, nobody is deceived into thinking that the person signing the check is meant to be liable. This subsection is meant to overrule cases decided under former Article 3 such as Griffin v. Ellinger, 538 S.W.2d 97 (Texas 1976) [ (holding that where a corporate officer signs a check on a corporate account without indicating his corporate capacity, he was personally liable) ].
19B Fla. Stat. Ann. 149 (1993).
This UCC modification “puts the Code’s legal stamp of approval on the obvious intent of the transaction-that the company’s check binds only the company, even if an agent signs in her own name.”

(Footnote and citations omitted).

As we have previous held, “[a] default judgment should be set aside where the complaint on its face fails to state a cause of action.” Becerra v. Equity Imports, Inc., 551 So.2d 486, 488 (Fla. 3d DCA 1989); see Sunshine Sec. & Detective Agency v. Wells Fargo Armored Services Corp., 496 So.2d 246, 246 (Fla. 3d DCA 1986) (“[T]he law is well-settled that a default judgment may not be entered against a defendant on a complaint which wholly fails to state a cause of action against the said defendant. See North American Accident Insurance Co. v. Moreland, 60 Fla. 153, 53 So. 635 (1910); Fernandez-Aguirre v. Gall, 484 So.2d 1286 (Fla. 3d DCA 1986); Bay Products Corp. v. Winters, 341 So.2d 240 (Fla. 3d DCA 1976); GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975).”).

That is exactly what occurred as to Ojeda, in this case. Because no claim to collect on the note or to enforce Ojeda’s personal guarantee was alleged, but only a claim for Ojeda’s personal liability on the check-a claim on which Moumina could not recover, Ojeda’s 1.540 motion to set aside a default judgment should have been granted. A default judgment:

Operates as an admission of the truth of the well pleaded allegations of the pleading .... It does not admit facts not pleaded, not properly pleaded or conclusions of law. Fair inferences will be made from the pleadings, but forced inference will not be made. The party seeking affirmative relief may not be granted relief that is not supposed by the pleadings or by substantive law applicable to the pleadings. A party in default may rely on these limitations.

Bank of N.Y. Mellon v. Reyes, 126 So.3d 304, 307 (Fla. 3d DCA 2013) (quoting Bd. of Regents v. Stinson-Head, Inc., 504 So.2d 1374, 1375 (Fla. 4th DCA 1987) (quoting H. Trawick, Trawick’s Florida Practice and Procedure § 25-4 (1986 ed.))); see also Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 493 (Fla. 3d DCA 1994). This is so, because where a default is involved, no proof is required; thus, the allegations of the complaint must establish an entitlement to relief against the defaulting defendant.

A default admits liability as claimed in the pleading by the party seeking affirmative relief against the party in default. It operates as an admission of the truth of the well pleaded allegations of the pleading, except those concerning damages. It does not admit facts not pleaded, not properly pleaded or conclusions of law. Fair inferences will be made from the pleadings, but forced inference will not. The party seeking affirmative relief may not be granted relief that is not supported by the pleadings or by substantive law applicable to the pleading. A party in default may rely on these limitations.
Failure to state a cause of action, unlike formal or technical deficiencies, is a fatal pleading deficiency not curable by a default judgment. The reason why a pleading deficiency is not cured by a default judgment — formerly a decree pro confesso — is that in such cases the introduction of proof is not required, and even if the allegations were accepted as true, the plaintiff would not have made a case upon which relief could be granted.

Becerra, 551 So.2d at 488 (citations omitted) (emphasis added); Ginsberg, 645 So.2d at 493-94 (same). Accordingly we affirm the order denying the Rule 1.540 motion as to Big Bang, but reverse that order as to Ojeda.

Affirmed in part, reversed in part.

      . Before bringing suit, Moumina provided the notice required to Big Bang and Ojeda as required by section 68.065 of the Florida Statutes alerting them that they had thirty days in which to make good on the checks. See § 68.065(4), Fla. Stat. (2013) (providing in part that "[bjefore recovery under subsection (3) may be claimed, a written demand must be delivered by certified or registered mail, evidenced by return receipt, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the payment instrument to the address on the instrument, to the address given by the drawer at the time the instrument was issued, or to the drawer’s last known address"). The notice was ignored.

        . While we recognize that in Condominium Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp., 137 So.3d 396, 2014 WL 620238 (Fla. 4th DCA Feb. 19, 2014), our sister court recently concluded that the fact that a quiet title complaint failed to state a cause of action rendered the default judgment entered against it voidable, rather than void, and that court receded from Rhodes v. O. Turner & Co., 117 So.3d 872, 875 (Fla. 4th DCA 2013); Neuteleers v. Patio Homeowners Ass’n, 114 So.3d 299, 301 (Fla. 4th DCA 2013) and Lee & Sakahara Assocs., AIA, Inc. v. Boykin Mgmt. Co., 678 So.2d 394, 396 (Fla. 4th DCA 1996), on the reasoning outlined in Becerra, we cannot agree with our sister court’s change in thinking.


author: SCALES, J.

text:
    Nilo Morales PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2038.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.

      Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and SCALES, JJ.
   SCALES, J.

Nilo Morales Perez challenges his conviction for attempted second-degree murder with a deadly weapon, arguing that he is entitled to a new trial. Perez correctly contends that, pursuant to Williams v. State, 123 So.3d 23 (Fla.2013), it was fundamental error for the trial court to give the then-standard jury instruction for attempted manslaughter by act, which required proof that he intended to kill the victim.

Perez was charged by amended information with attempted premeditated murder with a deadly weapon. A jury ultimately convicted Perez of attempted second-degree murder with a deadly weapon, one step removed from the lesser included offense of attempted manslaughter by act.

When Perez’s case went to trial in April of 2012, the standard jury instruction for attempted voluntary manslaughter by act included language which required the state to prove that Perez “committed an act which was intended to cause the death of [the victim].” Subsequently, in February of 2013, the Florida Supreme Court held that a trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act-which requires the jury to find the defendant committed an act intended to cause death-where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense. Williams, 123 So.3d at 24.

Accordingly, based on the Florida Supreme Court’s holding in Williams, this matter must be remanded for a new trial. See, e.g., Skinner v. State, 2014 WL 128587 (Fla. 3d DCA 2014)(remanding the cause for a new trial because “the attempted manslaughter by act instruction read to the jury was the pre-Williams instruction that the Florida Supreme Court determined to be per se fundamental error.”).

Reversed and remanded for a new trial.


text:
    STATE FARM INSURANCE COMPANY, Appellant, v. Hermina and Oscar REYES, Appellees.
    No. 3D12-2838.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.
    Bernstein, Chackman, Liss & Rose; Elizabeth K. Russo and Christopher J. Bailey, for appellant.
    Alvarez, Carbonell, Feltman & DaSilva and Paul Feltman, for appellees.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

State Farm Insurance Company appeals a final order denying its motion for attorney’s fees and costs. The issue is whether State Farm’s proposals for settlement submitted to each of the insureds (plaintiffs below, appellees here) fulfilled the fee-shifting requirements set forth in section 768.79, Florida Statutes (2010), and in Florida Rule of Civil Procedure 1.442. After State Farm obtained a final summary judgment in its favor and moved to recover its attorney’s fees and costs, the trial court entered a written order denying the motion without specifying any basis for the denial.

The transcript of the hearing on the motion indicates that the appellees argued that the proposals for settlement were nominal and in bad faith, and that State Farm had made similarly-nominal offers on “late-filed” Hurricane Wilma claims in some sixty-eight other cases. The eighteen-minute hearing on the motion consisted of argument by counsel, and obviously there was no opportunity to assess the particular facts of the other sixty-eight alleged cases.

Finding no proof of bad faith in State Farm’s proposals to the appellees in this case, and no determination of bad faith by the trial court on the record of these particular proposals for settlement, we reverse the order below and remand with directions to grant the motion and to award State Farm its reasonable attorney’s fees and costs in conformance with the cited statute and rule. Nominal offers are not necessarily indicative of bad faith. Downs v. Coastal Sys. Inti, Inc., 972 So.2d 258, 262 (Fla. 3d DCA2008).

Reversed and remanded with directions.


author: LAGOA, J.

text:
    Paul A. SMALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1336.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.
    Paul A. Small, in proper person.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Paul A. Small (“Small”) appeals a final order dismissing his petition for writ of habeas corpus. Because we find that the Eleventh Judicial Circuit lacked jurisdiction to consider the claim raised in Small’s habeas petition, we affirm the dismissal without prejudice for Small to seek appropriate relief in the Fifteenth Judicial Circuit.

“The circuit court of the county in which a defendant is incarcerated has jurisdiction to consider a petition for writ of habeas corpus when the claims raised in the petition concern issues regarding his incarceration, but not when the claims attack the validity of the judgment or sentence. Only the court in which the defendant was convicted and sentenced has jurisdiction to consider collateral attacks on a judgment or sentence, and such an attack must be brought pursuant to Rule 3.800 or 3.850, not by petition for writ of habeas corpus.” Brinson v. State, 988 So.2d 665, 665-66 (Fla. 3d DCA 2008) (quoting Broom v. State, 907 So.2d 1261, 1262 (Fla. 3d DCA 2005) (citations omitted)).

Because Small challenges his sentence and not the conditions of his imprisonment, we affirm the trial court’s order without prejudice. Post-conviction challenges must be pursued in the circuit court where the conviction was obtained. Small may, therefore, challenge his conviction or sentence by filing a motion under Rule 3.800 or Rule 3.850, Florida Rules of Criminal Procedure, in the Fifteenth Judicial Circuit, where Small was convicted and sentenced.

Affirmed without prejudice.


text:
    N.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1877.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before WELLS, LOGUE, and SCALES, JJ.
   PER CURIAM.

Affirmed. See I.R. v. State, 385 So.2d 686, 687-88 (Fla. 3d DCA 1980) (“Where the evidence is in conflict, it is within the province of the trier of fact to assess the credibility of witnesses, and upon evaluating the testimony, rely upon the testimony found by it to be worthy of belief and reject such testimony found by it to be untrue.... The testimony of a single witness, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction.”).


author: SHEPHERD, C.J.

text:
    Barry YAMPOL, Appellant, v. TURNBERRY ISLE SOUTH CONDOMINIUM ASSOCIATION, INC., Appellee.
    Nos. 3D13-2667, 3D13-3195.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.
    Rehearing Denied April 16, 2014.
    Hicks, Porter, Ebenfeld & Stein, and Cindy L. Ebenfeld and Emily M. Elisco (Hollywood); Legón Fodiman, and Todd R. Legón and Jeffrey A. Sudduth, for appellant.
    Cole Scott & Kissane and Jennifer V. Ruiz, for appellee.

      Before SHEPHERD, C.J., and SALTER and EMAS, JJ.
   ORDER ON APPELLANT’S SECOND MOTION TO RELINQUISH JURISDICTION

SHEPHERD, C.J.

Appellant’s Second Motion to Relinquish Jurisdiction to Address Issues Related to Orders on Appeal is denied.

Upon review, it is apparent to this Court that the trial court, by entering its order dated November 19, 2018, exceeded the express purpose of the relinquishment authorized by this Court’s October 29, 2013, order, which granted Appellee’s (Turnber-ry Isle South Condominium Association, Inc.) Motion for Temporary Relinquishment of Jurisdiction made “solely for the purpose of allowing the trial court to decide which [of two orders rendered on September 20, 2013,] it wishes to keep in effect and which one it wishes to vacate.” The trial court lacked jurisdiction to enter the November 19, 2013, order. See Fla. R.App. P. 9.600 (“If the jurisdiction of the lower tribunal has been divested by an appeal from a final order, the court by order may permit the lower tribunal to proceed with specifically stated matters during the pendency of the appeal.”) (emphasis added).

As a matter of precaution, Yampol appealed the November 19, 2013 order under this court’s case number 3D-3195. Because the trial court lacked jurisdiction to enter the November 19, 2013, order, we hereby quash this order. See Palma Sola Harbour Condo., Inc. v. Huber, 374 So.2d 1135, 1138 (Fla. 2d DCA 1979) (holding that a trial court order which exceeds the scope of the “specifically stated matters” authorized by District Court of Appeal for consideration on relinquishment is invalid); see generally Philip J. Padovano, Florida Appellate Practice 14 (2007-08 ed.2007).

We relinquish jurisdiction once again in case number 3D13-2667 “solely for the purpose of allowing the trial court to decide which [of the two orders rendered September 20, 2013,] it wishes to keep in effect and which one it wishes to vacate.” See Appellee, Turnberry Isle South Condominium Association, Inc.’s motion to relinquish served October 24, 2013, and this Court’s order granting same dated October 29, 2013. The period of this relinquishment shall expire twenty days from the date of this order. If the trial court has not, through written order by that date, designated which of the two orders rendered September 20, 2013, it wishes to keep in effect, this appeal shall proceed on both orders. In either case, the initial brief shall be filed twenty (20) days after either the expiration of the relinquishment period or the issuance of the written order, whichever occurs first. The answer brief shall be filed twenty (20) days after the filing of the initial brief.

The Court will not entertain any motions for extension of time for the filing of these briefs. This appeal will proceed henceforth under case number 3D13-2667 and the record, for purposes of this appeal, will be the record as it existed on September 20, 2013.

It is so ordered.


text:
    James R. STEIN, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, etc., et al., Appellees.
    No. 3D14-65.
    District Court of Appeal of Florida, Third District.
    March 26, 2014.
    Ice Appellate, and Thomas Erskine Ice and Amanda L. Lundergan (Royal Palm Beach), for appellant.
    Before SHEPHERD, C.J., and EMAS and FERNANDEZ, JJ.
   SHEPHERD, C.J.

James R. Stein and “potential plaintiff, Carol A. Stein” seek to appeal an order denying James R. Stein’s motion to add his wife as a consortium plaintiff in a personal injury action. We dismiss the appeal by James R. Stein as taken from a non-final non-appealable order. Traveler v. Steiner Transocean Ltd., 895 So.2d 1191, 1192 (Fla. 3d DCA 2005) (“[a]n appeal after judgment is an adequate remedy for an ordinary reversible error for which no appeal is provided under Rule 9.130 of the Florida Rules of Appellate Procedure.”) (citing Hawaiian Inn of Daytona Beach Inc. v. Snead Constr. Corp., 393 So.2d 1201, 1202 (Fla. 5th DCA 1981)); see also Chace v. Martin Mem’l Med. Ctr., Inc., 125 So.3d 817 (Fla. 4th DCA 2013). Nor does the order sought to be reviewed rise to the level of irreparable harm to him, which might invoke our extraordinary jurisdiction. See Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) (holding that a party must establish that it has suffered irreparable harm that cannot be remedied on direct appeal in order to invoke a district court’s certiorari jurisdiction).

Stein alternately argues that the order is appealable because “its effect is to. dismiss the proposed amendment with prejudice as to his wife.” Stein is incorrect. Stein’s wife is a non-party to the underlying action. She lacks standing to appeal. See Fla. R.App. P. 9.020(g)(1) (defining appellant as “[a] party who seeks to invoke the appeal jurisdiction of a court” (emphasis added)); Zaffuto v. St. Joseph’s Hosp., 123 So.3d 1199, 1200 (Fla. 2d DCA 2012) (holding that “[t]he fact that a proposal to amend a complaint, if granted and served upon a person, creates an ‘interest adverse to the plaintiff does not make the person a party prior to the amendment .... Likewise, a ‘potential defendant’ does not become a ‘potential appellee’ when a notice of appeal is filed, much less an actual appel-lee.” (citation omitted)); see also Portfolio Invs. Corp. v. Deutsche Bank Nat’l. Trust Co., 81 So.3d 534, 536 (Fla. 3d DCA 2012) (holding that a non-party in the proceedings below is generally a “stranger to the record” and lacks standing to appeal a trial court order) (citing Barnett v. Barnett, 705 So.2d 63, 64 (Fla. 4th DCA 1997)).

Appeal dismissed.


text:
    Derrick BOWERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1041.
    District Court of Appeal of Florida, First District.
    March 26, 2014.
    Rehearing Denied May 5, 2014.

      Derrick Bowers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

ROWE, MARSTILLER, and RAY, JJ., concur.


author: GRIFFIN, J.

text:
    Pamela SAMAROO and Jessie Samaroo, Appellants, v. WELLS FARGO BANK, etc., et al., Appellees.
    No. 5D13-1585.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2014.
    Rehearing Denied May 1, 2014.
    Henry W. Hicks and Adam J. Knight, of Henry W. Hicks, P.A., Tampa, for Appellants.
    Jeffrey S. York and N. Mark New, of McGlinchey Stafford, Jacksonville, for Ap-pellees.
   GRIFFIN, J.

Pamela Samaroo and Jessie Samaroo [“the Samaroos”] appeal the entry of summary final judgment of mortgage foreclosure in favor of Wells Fargo Bank, National Association, as Trustee for the Holders of the First Franklin Mortgage Loan Trust 2006-FF15 Mortgage Pass-Through Certificates, Series 2006-FF15 [“Wells Fargo”]. The Samaroos raise three issues on appeal; we find merit in only one. We agree that Wells Fargo failed to satisfy the notice requirement of section 22 of the mortgage as a condition precedent to foreclosure.

On April 8, 2009, Wells Fargo filed its complaint to foreclose on the Samaroos’ mortgage. Wells Fargo alleged that there had been a default under the note and mortgage, and that all conditions precedent to the filing of the action had been performed or had occurred. The Sama-roos filed an amended answer and affirmative defenses, asserting, among other defenses, that Wells Fargo had failed to give the Samaroos notice of default in compliance with paragraph 22 of the mortgage.

Wells Fargo filed a motion for summary-final judgment, asserting that the material facts were not in dispute, that it had standing to foreclose the mortgage as it was the owner and holder of the note and mortgage, and that Pamela Samaroo was in default, had been sent a default letter, and owed amounts as identified in an attached affidavit of indebtedness. Wells Fargo asserted that “a notice of default letter was sent to Defendant Pamela Samaroo, in accordance with Pai'agraph 22 of the Mortgage, on December 17, 2008.” It ultimately argued: “Accordingly, because Plaintiff provided the notice of default in compliance with paragraph 22 of the Mortgage, Defendants’ Tenth, Nineteenth, and Twentieth Affirmative Defenses do not bar entry of Final Summary Judgment.”

Attached to Wells Fargo’s motion for summary final judgment are an affidavit in support of the motion and an affidavit of indebtedness. Affiant, Deborah A. Schroeder [“Schroeder”], represented that she was an officer at Select Portfolio Servicing, Inc. [“SPS”], and that SPS serviced the mortgage loan for Wells Fargo. In paragraph 13 of her affidavit, she stated:

The Loan Records reflect that on December 17, 2008, a default letter was sent to Defendant Pamela Samaroo, pursuant to Paragraph 22 of the Mortgage, informing her of the default and providing the amounts due under the Note. A copy of the acceleration/default letter is attached hereto as Exhibit “E.”

The trial court conducted a hearing on Wells Fargo’s motion for summary final judgment and entered summary final judgment in favor of Wells Fargo.

The Samaroos’ tenth affirmative defense asserted that Wells Fargo failed to give notice of default that complied with the notice requirements set forth in paragraph 22 of the mortgage. Paragraph 22 of the mortgage provides:

Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.

To refute the Samaroos’ affirmative defense that Wells Fargo failed to give the Samaroos notice prior to acceleration that complied with the notice requirements set forth in paragraph 22 of the mortgage, Wells Fargo relied upon the default letter that is attached to the affidavit in support of its motion for summary judgment. However, it is apparent in comparing the letter to the requirements of paragraph 22 that it does not comply with the notice requirements set forth in paragraph 22 of the mortgage. Importantly, it does not inform the Samaroos of their right to reinstate after acceleration. Rather, it informs the Samaroos that the “acceptance of one or more payments for less than the amount required to cure the default shall not be deemed to reinstate [their] loan or waive any acceleration of the loan.” This in no way suggests the right to reinstate after acceleration. See Kurian v. Wells Fargo Bank, Nat’l Ass’n, 114 So.3d 1052, 1055 (Fla. 4th DCA 2013) (“[The letter attached to the Complaint] did not advise of the default, provide an opportunity to cure, or provide thirty days in which to do so. The letter attached to the Complaint did not satisfy section 22’s requirements.”); Judy v. MSMC Venture, LLC, 100 So.3d 1287,1289 (Fla. 2d DCA 2012).

Wells Fargo contends that it “substantially” complied with the contractual notice requirements, an argument we cannot credit. None of the cases cited by Wells Fargo involved compliance with pre-acceleration notice requirements contained in a mortgage. Its own mortgage specified the important information that it was bound to give its borrower in default, and it simply failed to do so.

REVERSED and REMANDED.

TORPY, C.J. and EVANDER, J., concur.

      . Wells Fargo also relies on our opinion in Godshalk v. Countrywide Home Loans Servicing, L.P., 81 So.3d 626, 626 (Fla. 5th DCA 2012), for the proposition that the Samaroos' denial of Wells Fargo’s claim that it had met all conditions precedent to foreclosure was not sufficiently specific or particular as required by Florida Rule of Civil Procedure 1.120(c). We reject this argument. The Sa-maroos specifically asserted a failure to comply with the notice provisions of paragraph 22 of the mortgage. That paragraph specifies only five components of the notice that the bank must give. The failure to include the right to reinstate the mortgage after acceleration is an obvious and crucial omission.


text:
    Charles MONINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1429.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand From The Florida Supreme Court

PER CURIAM.

The defendant appealed from a conviction and sentence for second degree murder with a deadly weapon as a lesser included offense of first degree murder. This court affirmed. Moninger v. State, 52 So.Sd 696 (Fla. 4th DCA 2010). Our affirmance was based on State v. Montgomery, 39 So.3d 252 (Fla.2010), and this court’s opinion in Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010). In Singh, we held that giving the standard jury instruction on manslaughter was not fundamental error in a prosecution for first degree murder, where the defendant was convicted of the lesser included offense of second degree murder and the instruction on manslaughter required the jury to find that the defendant “intentionally caused the death” of the victim or that the death of the victim “was caused by the culpable negligence” of the defendant.

The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court issued its opinion in Haygood v. State, 109 So.3d 735 (Fla.2013), which effectively quashed our decision in Singh. In Haygood, the Court held:

that giving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of an offense not more than one step removed from manslaughter and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.

Id. at 743. The Court, by order, then accepted jurisdiction of this case, quashed this court’s opinion, and remanded for reconsideration upon application of Haygood.

In light of Haygood, we hold that the trial court committed fundamental error in giving the standard jury instruction on manslaughter by act. We reverse and remand for a new trial on the charge of second degree murder.

Reversed and remanded for proceedings consistent with this opinion.

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