text:
    ECO-TRADITION, LLC, Eco-Lube of Jupiter f/k/a Eco-Lube Corporation, Eco-Lube of Tradition, Inc., Eco-Jupiter, LLC, and David M. Donan, individually, Appellants, v. PENNZOIL-QUAKER STATE COMPANY f/k/a Pennzoil Lube Center Acceptance Corporation, Appellee.
    No. 4D13-3323.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Alan B. Rose of Mrachek, Fitzgerald, Rose, Konopka & Dow, P.A., West Palm Beach, and Tim B. Wright of Wright, Pon-soldt & Lozeau, Trial Attorneys, LLP, Stuart, for appellants.
    James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for appellee.
   DAMOORGIAN, C.J.

Appellants, Eco-Tradition, LLC, Eco-Lube of Jupiter f/k/a Eco-Lube Corporation, Eco-Lube of Tradition, Inc., Eco-Jupiter, LLC and David M. Donan, (collectively “Eco-Tradition”), appeal a partial summary judgment granting injunctive relief authorizing Pennzoil to inspect land owned by Eco-Tradition. We reverse.

Pennzoil filed a lawsuit against Eco-Tradition for its failure to pay certain debts due to Pennzoil under the terms of several promissory notes which were secured by a mortgage that encumbered Eco-Tradition’s property. In its amended complaint, Pennzoil sought affirmative injunctive relief compelling Eco-Tradition to allow Pennzoil to inspect its property. The basis for the relief sought was contained in the mortgage which authorized Pennzoil to inspect the property at reasonable times.

Pursuant to Fla. R. Civ. P. 1.510, Pennzoil filed a motion for summary judgment asserting the right to inspect the land under the terms of the mortgage. In its motion, Pennzoil asserted the elements required to obtain injunctive relief. It also filed two affidavits from its inspectors to establish the need to inspect and that Eco-Tradition refused to allow the inspection. The motion was unsworn and did not contain “any affidavits, answers to interrogatories, admissions, depositions and other materials as would be admissible in evidence” establishing that the mortgage attached to the amended complaint was the mortgage alleged to have been given by Eco-Tradition. See id.

Eco-Tradition filed a motion to dismiss and response to the summary judgment. In its response, Eco-Tradition argued that the copy of the mortgage attached to the complaint could not be considered by the court because it was unauthenticated. The trial court granted Pennzoil’s motion for partial summary judgment and this appeal follows.

“An order granting or denying an injunction following an evidentiary hearing is normally reviewed for an abuse of discretion.” Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1068 (Fla. 2d DCA 2007). However, the “ ‘standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.’ ” Id. at 1069 (quoting Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001)). Because the trial court did not conduct an evidentiary hearing but instead granted injunctive relief on a motion for summary judgment, we apply the de novo standard of review.

A motion for summary judgment shall “state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions and other materials as would be admissible in evidence on which the movant relies.” Fla. R. Civ. P. 1.510. Summary judgment is improper unless the record demonstrates that there are no genuine issue as to any material fact and that the party is entitled to the judgment as a matter of law. Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979). Here, Pennzoil failed to present any evidence, affidavits, depositions, or documents establishing the validity of the mortgage and notes. Accordingly, it was error for the trial judge to rely solely on Pennzoil’s un-sworn second amended complaint and unauthenticated attachments. See TRG-Brickell Point NE v. Wajsblat, 34 So.3d 53, 55 (Fla. 3d DCA 2010) (holding “it is apodictic that summary judgments may not be granted at any type of hearing, absent the existence of ‘summary judgment evidence’ in the record.”).

Therefore, we reverse the trial court’s order granting Pennzoil’s motion for partial summary judgment as to Count I (mandatory injunction) and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

WARNER and FORST, JJ., concur.

      . Pennzoil amended its complaint attaching copies of the mortgage and notes. The amended complaint was not sworn.

      . It also argued that the promissory notes were defective because Annex B — reflecting the amount of each advancement on the note made to the borrower to the notes — was not completed. We find this argument to be without merit as it applies to the claim for injunctive relief.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    VANTIUM CAPITAL, INC., Appellant, v. William D. HOBSON, Jr., Marcio Barretto Cordiero, Stanley Bengelsdorf, BAC Home Loan Servicing, LP f/k/a Countrywide Home Loans Servicing, LP, JPMorgan Chase Bank, N.A., City of West Palm Beach and Lakefield North at Wellington Homeowners Association, Inc., Appellees.
    Nos. 4D13-393, 4D13-394, 4D13-395.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.

      Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for appellant.
    No appearance for appellees.
   TAYLOR, J.

In these consolidated appeals, Vantium Capital, Inc. (“Vantium”) argues that the trial court erred in denying its claims for deficiency judgments resulting from mortgage foreclosure sales. We agree and reverse.

A final judgment of foreclosure was entered against each of the appellees/debt-ors. Judgment was entered against appel-lee William S. Hobson, Jr., in the amount of $199,936.39, and the Hobson property was sold at a foreclosure sale for $162,700. Judgment was entered against appellee Marcio Barretto Cordiero in the amount of $275,989.88, and the Cordiero property was sold at a foreclosure sale for $21,100. Judgment was entered against appellee Stanley Bengelsdorf in the amount of $199,936.39, and the Bengelsdorf property was sold at a foreclosure sale for $21,100.

Vantium was substituted in each foreclosure action as the party plaintiff and moved for deficiency judgments against the debtors. The trial court held a single hearing to address Vantium’s deficiency claims in all three cases. None of the debtors appeared at the hearing. Vantium established the foreclosure sale amounts for each property. It also proffered affidavits of appraisers as to the fair market value of the Cordiero and Bengelsdorf properties. The Bengelsdorf property had an appraised value of $20,000, and the Cordiero property had an appraised value of $47,000.

The trial court denied all the motions for deficiency judgment, reasoning that Vanti-um established only the bid price at each foreclosure sale. The court further ruled that it would not accept the affidavits of the appraisers in lieu of live testimony.

The trial court denied Vantium’s motions for rehearing. On appeal, Vantium argues that the trial court failed to follow the applicable law regarding deficiency judgments and abused its discretion in denying the claims for deficiency. Vantium contends that the trial court improperly failed to consider the bid price as fair market value, improperly failed to place the burden on the debtors to prove that the fair market value was greater than the bid price, and improperly rejected affidavits that Vantium proffered without objection.

The decision whether to grant or deny a deficiency judgment is reviewed for an abuse of discretion. See Nonvest Bank Owatonna, N.A. v. Millard, 522 So.2d 546, 547 (Fla. 4th DCA 1988). “While ordinarily the granting of a deficiency decree is discretionary with the court, this is not an absolute and unbridled discretion, but a ‘sound judicial discretion,’ which must be supported by established equitable principles as applied to the facts of the case, and the exercise of which is subject to review on appeal.” Carlson v. Becker, 45 So.2d 116,116 (Fla.1950) (citations omitted).

Where it is clear that the total debt secured by a lien on property is more than the fair market value of that property at the date of the foreclosure sale, the granting of a deficiency decree is the rule rather than the exception. Ahmad v. Cobb Comer, Inc., 762 So.2d 944, 946 (Fla. 4th DCA 2000). A deficiency judgment should be granted “unless there are facts and circumstances creating equitable considerations upon which a court should deny the deficiency decree in the exercise of its discretion.” S/D Enters., Inc. v. Chase Manhattan Bank, 374 So.2d 1121, 1122 (Fla. 3d DCA 1979). “When a court does not state any legal or equitable principles justifying an award for less than the full amount of the deficiency, the award is an abuse of discretion.” Morgan v. Kelly, 642 So.2d 1117, 1118 (Fla. 3d DCA 1994) (citations omitted).

“The secured party has the initial burden of proving that the fair market value of the property was less than the total debt determined by the final judgment.” Chidnese v. McCollem, 695 So.2d 936, 938 (Fla. 4th DCA 1997). However, “[a] legal presumption exists that the foreclosure sale price equals the fair market value of the property.” Thunderbird, Ltd. v. Great Am. Ins. Co., 566 So.2d 1296,1299 (Fla. 1st DCA 1990). “Therefore, once the party seeking a deficiency judgment introduces evidence of the foreclosure sale price, the burden shifts to the judgment debtor to present evidence concerning the property’s fair market value.” Liberty Bus. Credit Corp. v. Schaffer/Dunadry, 589 So.2d 451, 452 (Fla. 2d DCA 1991). “In the absence of such evidence, the trial court has the power to act upon the assumption that the sale price reflects the fair market value.” Fara Mfg. Co., Inc. v. First Fed. Sav. & Loan Ass’n of Miami, 366 So.2d 164, 165 (Fla. 3d DCA 1979).

In this case, the trial court abused its discretion in denying Vantium’s deficiency claims against the debtors. The court denied the deficiency claims, reasoning that Vantium established only the foreclosure sale price of each property. In doing so, the trial court implied that there was insufficient evidence of fair market value. However, the trial court’s ruling ignored the legal presumption that a property’s foreclosure sale price equals its fair market value. Accordingly, once Vantium established the foreclosure sale price for each of the properties, the burden shifted to the debtors to present evidence that the fair market value was different from the foreclosure sale price. The debtors did not appear at the hearing, let alone rebut the presumption that the foreclosure bid price was the fair market value of the property. The trial court improperly placed the burden on Vantium to produce evidence — apart from the foreclosure sale price — to prove the fair market value, rather than placing the burden on the debtors to rebut the presumption that the foreclosure sale price was the fair market value.

Because Vantium established the foreclosure sale price for each property at issue and because the debtors did not present any counter-evidence, Vantium was not obligated to produce any further evidence of fair market value. Nonetheless, although not required to do so, Vanti-um offered appraisers’ affidavits concerning the fair market value of the Cordiero and Bengelsdorf properties. The trial court, however, sua sponte rejected the appraisers’ affidavits as hearsay, without any objection raised by an opposing party. Because there was no objection from any opposing party, the trial court should have considered the appraisers’ affidavits offered by Vantium. • See In re Eriksson, 36 So.3d 580, 594 (Fla.2010) (failure to object to hearsay evidence constitutes a waiver). Moreover, a trial court is bound by the only competent evidence as to property value, where such evidence is “gratuitously introduced, despite the absence of any obligation to do so, by the mortgagee.” Addison Mortg. Co., Inc. v. Weit, 613 So.2d 104, 105 (Fla. 3d DCA 1993) (citations omitted).

In sum, the trial court did not properly apply the burden-shifting framework of Florida law on deficiency judgments. Furthermore, the trial court abused its discretion in denying the claims for deficiency without any valid legal or equitable reasons for doing so. Accordingly, we reverse and remand with directions for the trial court to enter deficiency judgments in favor of Vantium.

Reversed and Remanded.

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


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Adrian DEMETRESCU and Elena Demetrescu, Appellees.
    No. 4D13-947.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.

      Maureen G. Pearcy of Hinshaw & Culbertson LLP, Coral Gables, for appellant.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Matthew D. Hellman of Matt Heilman, P.A., Plantation, for appellees.
   TAYLOR, J.

Appellant, Citizens Property Insurance Corporation (“Citizens”), appeals a circuit court order granting the insureds’ motion to compel an appraisal. Because the trial court failed to resolve all underlying coverage disputes in a procedurally proper manner prior to ordering an appraisal, we reverse.

Citizens issued a homeowners’ policy to the insureds, Adrian and Elena Demetres-cu, for the period from December 15, 2009 to December 15, 2010. On August 31, 2010, the insureds reported a claim to Citizens for damage to their home and some of its contents as a result of a roof leak that occurred following a series of wind and rain events earlier that month. Citizens denied coverage, citing multiple policy provisions. Citizens repeatedly refused the insureds’ demands for an appraisal.

The insureds filed suit against Citizens for breach of contract and to compel an appraisal. Citizens answered the complaint, denied that the loss was covered, and asserted multiple affirmative defenses. Citizens relied upon policy provisions excluding coverage for, among other things, wear and tear, constant or repeated seepage or leakage of water over a period of 14 or more days, faulty or defective design or maintenance, neglect, and preexisting damage. Citizens also asserted that the insureds failed to comply with their post-loss duties under the policy. In their reply to Citizens’ affirmative defenses, the insureds claimed that Citizens was not prejudiced by any alleged deficiency in the insureds’ compliance with policy conditions and that Citizens had waived the right to raise, or should be estopped from raising, any such deficiency.

After some discovery, the insureds filed a motion to compel appraisal. The trial court granted the motion and directed the parties to proceed to appraisal. In its written order, the trial court ruled that “water leaks are covered under the policy” and that Citizens’ “affirmative defenses dealing with specific exclusions under the policy are appropriate for appraisal as the defenses deal with the causation of the damages.” This appeal followed.

The standard of review applicable to a trial court’s order compelling an appraisal under an insurance policy is de novo. Fla. Ins. Guar. Ass’n v. Castilla, 18 So.3d 703, 704 (Fla. 4th DCA 2009).

In Johnson v. Nationwide Mutual Insurance Co., 828 So.2d 1021, 1022 (Fla. 2002), the Florida Supreme Court held that “causation is a coverage question for the court when an insurer wholly denies that there is a covered loss and an amount-of-loss question for the appraisal panel when an insurer admits that there is covered loss, the amount of which is disputed.” Coverage issues are “to be judicially determined by the court” and are “not subject to a determination by appraisers.” Id. at 1025.

Consistent with Johnson, we have held that the trial court must resolve all underlying coverage disputes prior to ordering an appraisal. See Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 131 (Fla. 4th DCA 2010). This is because a finding of liability necessarily precedes a determination of damages. See Citizens Prop. Ins. Corp. v. Mich. Condo. Ass’n, 46 So.3d 177, 178 (Fla. 4th DCA 2010) (rejecting Third District’s dual-track approach, which allows the appraisal to go forward while preserving the insurer’s right to contest coverage).

“Appraisal exists for a limited purpose — the determination of ‘the amount of the loss.’ ” Citizens Prop. Ins. Corp. v. Mango Hill 6 Condo. Ass’n, 117 So.3d 1226, 1230 (Fla. 3d DCA 2013). Proper procedure requires that coverage defenses be addressed “by motion for summary judgment or trial.” Id.

“Once the court establishes that the losses are covered by a policy, then those losses may be appraised.” Corrido-ri, 28 So.3d at 131. However, appraisal is premature where there is a disputed issue of fact regarding coverage and where the trial court fails to “resolve this dispute of fact with competent evidence to support its determination of coverage.” Id. Accordingly, in Corridori, we held that coverage issues remained in dispute, and thus appraisal was premature, where the trial court determined, without taking any evidence, that the insureds had not materially breached the policy. Id. at 130-31.

In this case, the trial court erred in submitting the case to appraisal without resolving all underlying coverage disputes. The trial court departed from controlling precedent when it ruled that “affirmative defenses dealing with specific exclusions under the policy are appropriate for appraisal as the defenses deal with the causation of the damages.” Because Citizens wholly denied that there was a covered loss, all coverage issues, including causation, were to be judicially determined by the trial court. See Johnson, 828 So.2d at 1022; Corridori, 28 So.3d at 131. Therefore, the applicability of any policy exclusions was a question for the court, not the appraisers. Here, the trial court never decided the applicability of any of the policy exclusions set forth in Citizens’ affirmative defenses.

The trial court’s ruling that “water leaks are covered under the policy” was overly broad, as it failed to address whether any policy exclusion precluded coverage for the loss in this particular case. Nor has the trial court resolved issues surrounding the insureds’ post-loss duties, such as whether the insureds complied with the policy conditions, whether Citizens was prejudiced by any failure to comply with policy conditions, and whether waiver or estoppel precluded Citizens from raising any alleged deficiency in the insureds’ compliance with policy conditions.

Proper procedure requires that these coverage issues be resolved via summary judgment or at trial, not in a motion to compel appraisal. Counsel for the insureds improperly attempted to use the motion to compel appraisal as a vehicle for obtaining a ruling that the policy provided coverage, without moving for summary judgment under Florida Rule of Civil Procedure 1.510(c) or proceeding to trial on any genuine issues of material fact. To the extent that the trial court’s order found coverage for this particular loss, the trial court’s ruling is not supported by competent evidence, either in the form of summary judgment evidence or trial evidence. A finding of coverage under these circumstances was procedurally improper and violated due process.

Because the trial court failed to resolve all underlying coverage disputes in a procedurally proper manner prior to ordering an appraisal, we reverse the order compelling appraisal and remand for further proceedings.

Reversed and Remanded.

DAMOORGIAN, C.J., and LEVINE, J„ concur.


author: KLINGENSMITH, J.

text:
    Osthene JOSEPH and Linda Develon, Appellants, v. GEICO INDEMNITY COMPANY, Appellee.
    No. 4D12-3424.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Certification to S.Ct. Denied May 7, 2014.
    Marcus Susen and Justin Parafinzcuk of Koch Parafinczuk & Wolf, P.A., Fort Lauderdale, for appellants.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellee.
   KLINGENSMITH, J.

Appellants, Osthene Joseph and Linda Develon, appeal the trial court’s denial of their joint motion for additur in an under-insured motorist action. The certificate of service on this motion reflects that it was not served until nineteen days after the return of the jury’s verdict. After the motion was served, and thirty-one days after the verdict was rendered, the court entered its judgment in favor of the appellants in accord with the jury’s findings.

Although other post-trial motions filed by the appellants were dismissed by the trial court as untimely, appellants asserted that their motion for additur could be considered because the ten-day rule in Florida Rule of Civil Procedure 1.530(b), in effect at the time the motion was filed, did not apply to motions for additur. The trial court heard the parties’ arguments on the additur request and ultimately denied the motion. Although this appeal ensued from the order denying the motion for additur, no appeal was ever filed against the final judgment.

Appellees allege this court does not have subject matter jurisdiction over this appeal because appellants’ motion for additur was untimely served in the trial court. For the reasons set forth below, we agree and dismiss appellants’ appeal.

A motion for additur is the equivalent of a conditional motion for new trial under rule 1.530(b); therefore, it must also be served within the same number of days after the verdict to suspend rendition of the final judgment. See Hauss v. Waxman, 866 So.2d 758, 759-60 (Fla. 4th DCA 2004); Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So.2d 988, 991 (Fla. 1st DCA 2002) (motion for remittitur is the equivalent of a conditional motion for new trial and must be served within ten days of verdict under Florida Rule of Civil Procedure 1.530(b)).

Here, appellants’ motion for additur was not timely served as required by Florida Rule of Civil Procedure 1.530(b) as it was filed with the trial court nineteen days after the return of the jury verdict. As a result, the rendition of the final judgment was not suspended. Because the appellants also failed to file a timely appeal following the entry of the judgment, this court does not have jurisdiction to consider the denial of the post-trial motion. See Sealey, 810 So.2d at 991 (an untimely motion for new trial is ineffective to suspend rendition of final judgment).

Appeal dismissed for lack of jurisdiction.

WARNER and FORST, JJ., concur.

      . Pursuant to rule 1.530(b) "[a] motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action_” Rule 1.530 subsections (b) and (g) were both amended in 2013 to change the deadlines for service of certain motions from ten to fifteen days after the specified event.


author: PER CURIAM.

text:
    Eliott IRIZARRY, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Child Support Enforcement Bureau, and Shannette Fernandez, Appellees.
    No. 4D13-2504.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2014.
    Eliott Irizarry, Lauderdale Lakes, pro se.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for appellee Department of Revenue.
   ON CONFESSION OF ERROR

PER CURIAM.

The appellant in this case appeals a Final Modified Administrative Support Order, which ordered the appellant to pay certain sums of child support. The Department of Revenue, as appellee, confesses error regarding the sufficiency of the notice provided the appellant. The appel-lee requests that the order be vacated and the cause remanded to the lower court for further proceedings. We agree and oblige. The Final Modified Administrative Support Order is hereby vacated and the cause remanded to the lower tribunal for further proceedings.

STEVENSON, GROSS and FORST, JJ., concur.


author: PER CURIAM. LaROSE, Judge,

text:
    Nicholas J. ODEGAARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1712.
    District Court of Appeal of Florida, Second District.
    March 28, 2014.

      Frances Martinez of Escobar & Associates, P A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Nicholas Odegaard appeals the denial of his amended motion for relief from his conviction for robbery with a weapon after an open plea, the resulting revocation of his community control, and his forty-five-year prison sentence. See Fla. R. Crim. P. 3.850(a)(5). The postconviction court erred in finding that Mr. Odegaard’s trial counsel did not perform deficiently. Consequently, we reverse, in part.

Background

In 2008, Mr. Odegaard pleaded guilty to theft-related offenses. At the plea hearing, the trial court informed him that he faced a maximum prison sentence of fifteen years. The trial court, however, imposed a youthful offender sentence of two years’ community control, followed by four years of probation.

In 2009, Mr. Odegaard violated his community control by committing robbery with a weapon. See § 812.13(2)(b), Fla. Stat. (2008). This offense carried a maximum sentence of thirty years. § 775.082(3)(b), Fla. Stat. (2008). To resolve this new offense and the community control violation, the State offered Mr. Odegaard a plea deal of fifteen years in prison followed by five years of probation. The prosecutor stated he would upgrade the new charge to robbery with a firearm, an offense punishable by life with a ten-year mandatory minimum, if Mr. Odegaard did not accept the offer. See §§ 812.13(2)(a) (robbery with firearm); 775.082(3)(a)(3) (life sentence); 775.087(2)(a)(1) (ten-year minimum for firearm).

Mr. Odegaard’s trial counsel advised him that the only way to receive less than fifteen years was to enter an open plea and ask the trial court to consider his young age. Counsel hoped for a bottom-of-the-guidelines sentence of seventy-six months. Mr. Odegaard pleaded open but did not fare well at the subsequent sentencing hearing in May 2009. The trial court accepted the plea and sentenced Mr. Ode-gaard to thirty years for the armed robbery and fifteen years for the underlying community control offenses, consecutive.

Mr. Odegaard filed an unsuccessful post-trial motion to reduce his sentence. See Fla. R. Crim. P. 3.800(c). We thereafter affirmed his convictions and sentences on appeal. Odegaard v. State, 44 So.3d 589 (Fla. 2d DCA 2010) (table decision). Mr. Odegaard then filed his motion for post-conviction relief. He claims that his trial counsel was ineffective for misadvising him to reject the State’s offer and plead open and for failing to inform him that he faced up to forty-five years in prison. Mr. Ode-gaard asserts that had counsel correctly advised him, he would have accepted the fifteen-year offer.

The postconviction court held an eviden-tiary hearing on the motion. At the hearing, the court warned Mr. Odegaard that if he succeeded, he would start anew with a community control violation and a robbery charge pending. The State could upgrade the charge and refuse to offer any plea deal. Mr. Odegaard acknowledged the risk.

Trial counsel testified that he did not tell Mr. Odegaard to reject any offers from the State. Counsel stated that he told Mr. Odegaard that in entering an open plea he “would be asking for the bottom of the guidelines, or below.” However, he also told Mr. Odegaard that “it was most likely going to be at least the bottom of the guidelines, if not more, based on his current situation. And that [sic] the judge could in fact give him more than the State Attorney was offering.” The postconviction judge asked trial counsel whether he advised Mr. Odegaard that “judges do not usually go to the bottom of the guidelines when ... you’re already on probation, or community control, and this is a new charge and it’s a robbery charge.” Trial counsel did not recall giving such advice. Trial counsel also testified that his notes did not show — and he did not remember— that he informed Mr. Odegaard that the trial court could impose consecutive sentences.

Indeed, the trial court informed Mr. Odegaard at the plea hearing in April 2009 only that the maximum sentence for armed robbery was thirty years. No plea form was used for the community control violation case. The only plea form was for the robbery offense, which showed a maximum penalty of thirty years. Our record contains nothing in writing informing Mr. Odegaard of the forty-five-year maximum sentence he faced.

The postconviction court denied the motion, finding that trial counsel’s performance was not deficient. Implicit in the order on appeal is a conclusion that trial counsel did not advise Mr. Odegaard to reject any offer. The postconviction court also found that Mr. Odegaard “was warned of the maximum penalties he faced in each case”: he “was warned that he faced 15 years during the August 14, 2008, plea colloquy” and “was informed of the 30 year maximum at his April 13, 2009, plea date.” We can only conclude that the postconviction court found that trial counsel was not deficient in failing to advise about consecutive sentences because Mr. Odegaard knew of the potential sentences well before his May 2009 sentencing.

Analysis

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the bedrock upon which we construct any analysis of an ineffectiveness of counsel claim. Strickland demands that a defendant demonstrate first that counsel’s performance was deficient and second that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness” based on professional norms. Id. at 688, 104 S.Ct. 2052; accord Schwab v. State, 814 So.2d 402, 408 (Fla.2002). Next, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,104 S.Ct. 2052; accord Schwab, 814 So.2d at 408. A postconviction court’s finding that trial counsel’s performance was not deficient is a determination that no ineffective assistance of counsel occurred, and the postconviction court may deny the motion without reaching Strickland’s prejudice prong. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052. That is the case here, certainly, with regard to the claim that trial counsel advised Mr. Ode-gaard to reject any State offer. Although making no express finding, the postconviction court obviously found trial counsel credible when he denied telling Mr. Ode-gaard to reject a fifteen-year plea offer. The postconviction court properly denied relief on this claim. Our task is not ended, however. We must now assess whether trial counsel was ineffective in failing to advise Mr. Odegaard that he faced up to forty-five years in prison.

Florida Rule of Criminal Procedure 3.171(c)(2)(B) admonishes “[d]efense counsel [to] advise defendant of ... all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant.” (Emphasis added.) By entering an open plea to the robbery charge and facing a revocation of community control, Mr. Odegaard confronted up to forty-five years in prison if the trial court imposed consecutive sentences. Unquestionably, a plea cannot be knowing and voluntary if the defendant does not understand all direct consequences of the plea, including those that affect the range of punishment. See Murphy v. State, 868 So.2d 585, 586 (Fla. 2d DCA 2004) (citing State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003); Watrous v. State, 793 So.2d 6, 8-9 (Fla. 2d DCA 2001)).

Trial counsel testified that his notes did not reflect that he warned Mr. Odegaard of a possible forty-five-year sentence, and he did not remember giving him such a warning. The trial court said nothing about a possible consecutive sentence. Mr. Odegaard testified that he was unaware of such a prospect; the postconviction court gave no indication that Mr. Ode-gaard was not credible on this point. That Mr. Odegaard was warned of the fifteen-year maximum on the underlying cases in 2008 and was warned a year later in 2009 of the thirty-year maximum for robbery with a weapon does not constitute competent substantial evidence that he understood at the 2009 plea hearing that he faced forty-five years in prison. Based on our record, we must conclude that Mr. Odegaard has satisfied the deficient performance prong of Strickland. We therefore reverse the postconviction court’s order and remand for the postconviction court to consider whether Mr. Odegaard suffered prejudice as a result of trial counsel’s deficient performance in failing to advise him of the potential for consecutive sentences.

As did the postconviction court, we admonish Mr. Odegaard of the potentially harsh consequences he faces if he succeeds. Even where trial counsel’s misad-vice results in a defendant’s rejection of a favorable plea offer, the State is not required to reoffer its original plea on remand. See Rudolf v. State, 851 So.2d 839, 841-42 (Fla. 2d DCA 2003); Eristma v. State, 766 So.2d 1095, 1097 (Fla. 2d DCA 2000). And because Mr. Odegaard violated his youthful offender community control with a new substantive offense, he again may be sentenced to up to the maximum sentence for the original offenses. See § 958.14, Fla. Stat. (2008). However, he is entitled to retain his youthful offender designation for those offenses upon any resen-tencing. See Yegge v. State, 88 So.3d 1058, 1059-60 (Fla. 2d DCA 2012) (stating although youthful offender may receive maximum sentences for original offenses after substantively violating youthful offender probation, continued youthful offender designation carries benefits such as availability of programs, facilities, and if offender qualifies, early release eligibility (citing Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011))). The record before us does not reflect youthful offender designation at the 2009 sentencing. If Mr. Odegaard elects not to withdraw his plea, he can file a motion to correct this error. See Fla. R. Crim. P. 3.800(a). In any resentencing that may occur as a result of proceedings on remand, the trial court must maintain Mr. Odegaard’s youthful offender designation for the original 2008 offense.

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and CASANUEVA, J„ Concur.

LaROSE, J., Concurs with opinion.

LaROSE, Judge,

Concurring.

I concur fully in the court’s decision to reverse the postconviction court’s order. I write to express my view that, on remand, the postconviction court must consider carefully the impact of the United States Supreme Court’s decisions in Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye,— U.S. —, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and the Supreme Court of Florida’s decision in Alcorn v. State, 121 So.3d 419 (Fla.2013), on the Strickland prejudice prong. A bit of history will be helpful.

In Cottle v. State, 733 So.2d 963, 966-67 (Fla.1999), our supreme court “recognized that counsel’s acts or omissions bearing on a defendant’s decision to reject a plea offer and proceed to trial could establish the basis for a legally sufficient ineffective assistance claim under Strickland.” Alcorn, 121 So.3d at 426. Cottle “adopted a modified Strickland analysis to be applied where the basis for an accused’s ineffective assistance claim hinged on counsel’s failure to properly advise him or her about the State’s plea offer, resulting in the accused’s rejection of that offer.” Alcorn, 121 So.3d at 426. Cottle ⅛ three-part test for establishing a prima facie ineffectiveness claim was whether “(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced; (2) defendant would have accepted the plea offer but for the inadequate notice; and (3) acceptance of the State’s plea offer would have resulted in a lesser sentence.” Cottle, 733 So.2d at 967. The Cottle court rejected any requirement that the trial court would have accepted the plea had it been conveyed to and accepted by the defendant because “any finding on that issue would necessarily have to be predicated upon speculation.” Id. at 969.

Subsequently, in Morgan v. State, 991 So.2d 835, 839-40 (Fla.2008), the supreme court adopted Cottle’s three-part modified Strickland test for ineffective-assistance-of-counsel claims arising from the plea stage and confirmed that such claims could be based on the counsel’s advice to reject a plea offer. See also Alcorn, 121 So.3d at 426.

We applied the Cottle test to such a claim in Beasley v. State, 964 So.2d 213 (Fla. 2d DCA 2007), the facts of which mirror those here. The trial court sentenced Mr. Beasley to thirty years in prison after he rejected the State’s fifteen-year plea offer. Id. at 215. In his post-conviction motion, he asserted that trial counsel was ineffective for advising him to reject the State’s fifteen-year plea offer and failing to inform him that he could receive an enhanced habitual felony offender (HFO) sentence of thirty years. Id. Mr. Beasley’s trial counsel admitted that she counseled him to reject the plea offer. Id. However, she did not recall her advice about the HFO notice and she had no notes. Id. The postconviction court denied Mr. Beasley’s claim because it chose not to believe his testimony that he had not learned about HFO sentencing when he was in prison, even though his testimony was unrefuted. Id. at 216.

On appeal, we reversed, holding that competent substantial evidence did not support the postconviction court’s factual findings that Mr. Beasley had knowledge of the consequences of rejecting the plea offer. Id. at 217. Our determination of prejudice, using the Cottle test, focused not on trial counsel’s advice to reject the plea, but on trial counsel’s failure to advise him of the consequences of rejecting the plea— that the maximum sentence could be doubled. See Beasley, 964 So.2d at 216.

In 2012, the Supreme Court decided La-fler and Frye. Lafler held that a federal habeas petitioner was prejudiced by his trial counsel’s deficient performance in advising him to reject a plea offer because he could not be convicted at trial. 132 S.Ct. at 1384-91. In so holding, the Supreme Court applied an apparently enhanced prejudice analysis requiring the petitioner to demonstrate that “the prosecution would not have withdrawn [the plea offer] in light of intervening circumstances [and] that the court would have accepted its terms.” Id. at 1385. The Supreme Court affirmed the Sixth Circuit’s holding that Lafler had demonstrated prejudice. Id. at 1391.

In Frye, the Supreme Court held that trial counsel performed deficiently by failing to inform Mr. Frye of a written plea offer before it expired. 132 S.Ct. at 1409. However, the Supreme Court reversed the state appeals court’s holding that Mr. Frye had established prejudice and remanded because, even though Mr. Frye could show he would have accepted the plea offer, the appeals court failed to require Mr. Frye to show “a reasonable probability [that] neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.” Id. at 1410. The Court observed that there was “strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final” because of an intervening event: Mr. Frye was arrested for a new offense of driving without a license. Id. at 1411.

Admittedly, Lafler and Frye involve counsel’s failure to convey a plea offer or affirmative advice to reject an offer. Nevertheless, Lafler and Frye seemingly require, as a general proposition, that the defendant show that he would have accepted the plea and that neither the State nor the trial court would have thwarted implementation of the defendant’s expectation. Lafler and Frye shift the prejudice landscape for ineffective assistance of counsel claims based on rejected plea offers. Al-corn, 121 So.3d at 429.

Building on Lafler and Frye, our supreme court, in Alcorn, constructed what appears to be a more onerous schema to establish Strickland prejudice in Florida:

[T]he defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that
(1) he or she would have accepted the offer had counsel advised the defendant correctly,
(2) the prosecutor would not have withdrawn the offer,
(3) the court would have accepted the offer, and
(4) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Alcorn, 121 So.3d at 422. Points (1) and (4) cling to points (2) and (3) of the longstanding Cottle test. But, anchored to Lafler and Frye, Alcorn apparently imposes an expanded inquiry, requiring the defendant to show that the prosecutor would not have withdrawn the offer and the trial court would have approved the plea deal.

Because Alcorn issued after briefing was complete in this case, we ordered supplemental briefing to allow the parties an opportunity to weigh in on its impact. They agree that Alcorn applies to determine whether Mr. Odegaard demonstrated prejudice.

Alcorn did not change the existing three elements of the existing Florida test, first set forth in Cottle, for claims of ineffective assistance of counsel for acts or omissions bearing on a defendant’s decision to reject a plea offer. See Alcorn, 121 So.3d at 426. Alcorn words the first two as whether “(1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced; (2) the defendant would have accepted the plea but for counsel’s failures.” Id. As stated earlier, Cottle worded them as whether “(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced; [and] (2) defendant would have accepted the plea offer but for the inadequate notice.” 733 So.2d at 967. Beasley worded them as whether “(1) counsel failed to communicate a plea offer or misinformed the defendant concerning the penalties [and] (2) the defendant would have accepted the plea offer but for the inadequate communication.” Beasley, 964 So.2d at 216.

Each variation uses the term “misinformed” regarding trial counsel’s deficient performance in advising the defendant of the possible sentence. Trial counsel did not affirmatively tell Mr. Odegaard that his sentences could not be imposed consecutively; he failed to inform Mr. Odegaard that he faced a possible forty-five-year sentence. The test, both pre- and post-Alcom, applies the words “inadequate” and “failures” to both failing to communicate a plea offer and to “misinforming” the defendant concerning the possible sentence. To me, the word “misinform” applies to omissions as well as to affirmative misadvice.

What appears to be a more exacting prejudice analysis under Lafler, Frye, and Alcorn causes critics to pounce on the speculative nature of the requirements that the defendant demonstrate that, absent counsel’s misadvice, he would have taken the plea offer, the State would not have withdrawn the offer, and the trial court would have accepted it. Dissenting in Frye, Justice Scalia pointedly observed that the test consists of “retrospective crystal-ball gazing” rather than legal analysis. Frye, 132 S.Ct. at 1413 (Scalia, J., dissenting). Aaron K. Friess, in Soothsaying with a Foggy Crystal Ball: A Critique of the U.S. Supreme Court’s Remedy for Ineffective Assistance of Counsel when a Criminal Defendant Rejects a Plea Bargain [Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.EdM 398 (2012) ], criticizes Lafler ⅛ prejudice test for “depending] largely on speculative hindsight ..., improperly rel[ying] on post-hoc inquiries into the relative likelihood of events that, by necessity, never occurred ... [and] wherein the court ... must try to analyze how the prosecution and judge would have exercised their discretion had this plea come before them.” 52 Washburn L.J. 147, 164-65 (2012) (internal citations omitted). “[H]inging a defendant’s constitutional rights on speculative hindsight inquiries constitutes an uncomfortable step in Sixth Amendment jurisprudence.” Id. at 167.

I am more sanguine. Strickland’s prejudice test retains its vitality even under Frye, Lafler, and Alcorn. The key to the core inquiry is whether counsel’s deficient conduct created “a reasonable probability that ... the result of the proceeding would have been different.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052; accord Porter v. McCollum, 558 U.S. 30, 41, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009). “A reasonable probability is a probability sufficient to undermine confidence in [that] outcome.” Strickland, 466 U.S. at 669,104 S.Ct. 2052; accord Porter, 558 U.S. at 44, 130 S.Ct. 447; Alcorn, 121 So.3d at 430. Accordingly, the postconviction court need not plumb the ether to determine whether the defendant would have accepted the plea had trial counsel advised him of all pertinent matters. The postconvietion court need not find even that the defendant more likely than not would have accepted the plea. Rather, the probability that the defendant would have taken the plea need be only sufficient to undermine confidence that he would have rejected the plea regardless.

Frye provides a framework for applying this confidence standard to the added prejudice test inquiries:

It can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there is or is not a reasonable probability that the outcome of the proceeding would have been different absent counsel’s errors can be conducted within that framework.

Frye, 132 S.Ct. at 1410.

Even though Alcorn issued after the postconviction court denied Mr. Ode-gaard’s motion, the Alcorn prejudice inquiry applies because his appeal was pending when Alcorn issued. See Smith v. State, 598 So.2d 1063, 1066 (Fla.1992). Florida’s “pipeline” rule, that appellate courts should decide cases in accord with the law in effect at the time of the appeal rather than the law in effect at the time of the order on appeal, has typically been applied to “new law on issues that would be raised during direct appeal — not postconviction.” Castaño v. State, 119 So.3d 1208, 1210 (Fla.2012) (Pariente, J., concurring). However, recent cases suggest an expansion of the “pipeline” analysis to new law that applies to postconviction claims where the resolution of the postconviction claim was still pending when the new case was decided. Id. Castaño applied new law from Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that would apply to a postconviction claim, to the appeal of a denial of a postconviction motion using a “pipeline” analysis. Castaño, 119 So.3d at 1208. Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004), applied new law from Nelson v. State, 875 So.2d 579 (Fla.2004), regarding ineffective-assistance-of-counsel claims, to the appeal of a denial of a postconviction motion. But see Perez v. State, 120 So.3d 49, 51 (Fla. 4th DCA 2013) (following Chaidez v. United States, — U.S. —, —, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013), a post-Castano case holding that under federal retroactivity analysis in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), “defendants whose convictions became final prior to Padilla ... cannot benefit from its holding”).

The postconviction court made no finding of prejudice. As the court holds, Mr. Odegaard demonstrated deficient performance by trial counsel. On remand, in my view, the postconviction court must now assess the impact of Lafler, Frye, and Alcorn on Strickland’s prejudice prong.

      . The State, in Lafler, conceded that trial counsel's performance was deficient. 132 S.Ct. at 1383.

      . The Supreme Court observed that the Sixth Circuit and other federal appellate courts employed such an enhanced prejudice analysis. Lafler, 132 S.Ct. at 1385. That conclusion may sweep too broadly. None of the cited cases used an enhanced prejudice standard. Cooper v. Lafler, 376 Fed.Appx. 563, 569-70 (6th Cir.2010), used the longstanding rule that a petitioner who rejected a plea offer must show a " ‘reasonable probability that, but for his counsel's erroneous advice ... he would have accepted the [S]tate’s plea offer.' ” (quoting Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir.20pl)), overruled by Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). The Sixth Circuit held that Lafler’s uncontradicted testimony — that had his counsel correctly advised him, he would have accepted the State’s offer — demonstrated that Lafler was prejudiced by his counsel's deficient performance. Id. at *8-9.

      . "Inadequate” means "[ijnsufficient; disproportionate; lacking in effectiveness or in conformity to a prescribed standard or measure.” Black’s Law Dictionary 758 (6th ed. 1990) (emphasis added).

      . Requiring trial judges to testify in such cases as to whether they would have accepted the pleas would commit scarce judicial resources to speculation about decisions the judges were never called upon to make.

      . "Pipeline” cases generally talk about allowing the defendant the "benefit” of the new law. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (stating that applying new rules to cases pending on direct review prevents inequity by allowing similarly situated defendants to benefit); Smith v. State, 598 So.2d 1063, 1065 (Fla.1992) (discussing requirement for defendant to "benefit of a change in the law” in a similar case pending on direct review); Castaño v. State, 119 So.3d 1208, 1209 (Fla.2012) (Pariente, J., concurring) ("Fundamental fairness demands that Castaño receive the benefit of Padilla [v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)].”); Boardman v. State, 69 So.3d 367, 369 (Fla. 2d DCA 2011) (holding defendant was not enti-tied to benefit of Blakely because his sentences became final before it was issued); Perez v. State, 120 So.3d 49, 52 (Fla. 4th DCA 2013) ("Padilla could not be applied retroactively to the benefit of Perez.”); Santana v. Fla. Dep’t of Fin. Servs., 61 So.3d 1262, 1263 (Fla. 3d DCA 2011) (holding Santana was "entitled to the benefit of ... a change in the law as applied specifically to him”). In contrast here, the new law in Alcorn benefits the State because it arguably adds elements that the defendant must establish to prevail.


author: LEVINE, J.

text:
    Debra GLAISTER, Appellant, v. Ralph GLAISTER, Appellee.
    No. 4D13-127.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Rehearing Denied May 21, 2014.

      Chris Keith, Boca Raton, for appellant.
    Steven Cripps of the Law Offices of Orsley & Cripps, P.A., West Palm Beach, for appellee.
   LEVINE, J.

The former wife appeals the trial court’s order adopting the recommendations of the general magistrate on the former husband’s petition for modification of child support. We reverse and find that the general magistrate erred in (1) considering and admitting irrelevant and inadmissible evidence, (2) granting relief not requested, and (3) taking judicial notice of sources without advance notice to the parties. Further, the trial court erred in striking the former wife’s amended exceptions to the magistrate’s report and adopting the report which was not supported by competent evidence.

The parties were formerly married and had two children, a son and a daughter. Pursuant to the marital settlement agreement, the former husband was required to pay an unallocated monthly amount in child support for both children. The agreement provides for termination of support for each child upon specified events, including the child’s eighteenth birthday or graduation if the child is under the age of nineteen while still dependent and in school. In January 2010, the former husband moved for modification based on the fact that the son had turned eighteen in October 2008 and graduated high school in May 2009. The former husband requested the court either order a refund or grant him a credit against future payments for any overpayment made since the son’s graduation.

In April 2012, the general magistrate held a non-jury trial on the former husband’s petition. The former husband testified, over the wife’s objection, as to his income and health insurance costs for himself and the daughter. His financial affidavit and tax returns were admitted into evidence over the former wife’s objections. The former wife testified as to her income working at a nail salon and expenses. Her financial affidavit was admitted over the former husband’s objection.

The magistrate rejected the former wife’s testimony as to her earned income as unreliable and untruthful based upon the magistrate’s personal experience of thirty years’ obtaining nail services throughout Palm Beach County, as well as presiding over domestic relations cases involving nail technicians. Accordingly, the magistrate imputed income to the former wife using information from documents not previously introduced by or noticed to either party. The magistrate recommended granting the former husband’s petition.

The former wife timely filed exceptions to the magistrate’s report and moved to continue the hearing on her exceptions until the transcript of the magistrate’s hearing had been received. The former wife received and filed the transcript eight days before the re-scheduled hearing on her exceptions and filed her amended exceptions five days before the hearing. The court struck the former wife’s amended exceptions as untimely and overruled her original exceptions concluding she failed to demonstrate the magistrate’s report was clearly erroneous. The court adopted and incorporated the magistrate’s report in its order granting the former husband’s petition and ordering retroactive modification. The former wife timely appealed.

“A trial court is bound by a master’s factual findings and recommendations unless they are clearly unsupported by the evidence and clearly erroneous.” Linn v. Linn, 528 So.2d 642, 643 (Fla. 4th DCA 1988). The appellate court “will review de novo the trial court’s decision that the findings of fact ... are supported by competent, substantial evidence and are not clearly erroneous while giving both the magistrate and the trial court the benefit of the presumption of correctness.” In re Drummond, 69 So.3d 1054, 1057 (Fla. 2d DCA 2011). Lastly, the appellate court “reviews the trial court’s decision to accept or reject the magistrate’s conclusions under the abuse of discretion standard.” Id.

Initially, the only basis for modification pled by the former husband was the son’s reaching majority and graduating from high school. The former husband did not request a recalculation of support based on any financial change nor an imputation of income to the former wife. Thus, the magistrate erred in introducing evidence of the parties’ changed financial circumstances and awarding relief that was not requested. See Escobar v. Escobar, 76 So.3d 958, 960-61 (Fla. 4th DCA 2011) (holding the trial court erred in awarding relief not requested by changing the child support payment terms where the former husband petitioned for a modification based only on two children reaching majority and not alleging any ambiguity in the parties’ marital settlement agreement regarding payment terms); Walls v. Sebastian, 914 So.2d 1110, 1111 (Fla. 4th DCA 2005) (holding that “[a] trial court lacks jurisdiction to enter a judgment on an issue not raised by the pleadings” and reversing the trial court’s modification of the former husband’s visitation schedule because “neither party requested a change in the timeshar-ing arrangement”).

Secondly, the magistrate’s report states that the former wife’s testimony as to her income was rejected as both unreliable and untruthful based upon the magistrate’s thirty years’ personal experience obtaining nail services throughout Palm Beach County as well as the magistrate’s presiding over other domestic relations cases involving nail technicians. Thus, the magistrate substituted her own experience for the former wife’s sworn testimony and relied upon records in different cases in making her determination. Both these actions were clearly erroneous. See Hale v. Shear Express, Inc., 946 So.2d 94, 96 (Fla. 1st DCA 2006) (reversing an award of fees because the judge’s findings “appear to have been based on the judge’s subjective belief and personal experience” and not competent, substantial evidence); Novack v. Novack, 196 So.2d 499, 500 (Fla. 3d DCA 1967) (“A chancellor is not authorized to take judicial knowledge of the records in a different ease pending or disposed of in the same court but outside the record of the case before that court.”).

Thirdly, in the magistrate’s report, the magistrate sua sponte took judicial notice of two sources she used to impute income to the former wife, including an IRS tax guide. Judicial notice of documents not received in open court requires a court to “make the information and its source a part of the record in the action” and “afford each party reasonable opportunity to challenge such information, and to offer additional information, before judicial notice of the matter is taken.” § 90.204(B), Fla. Stat. (2012). Because the parties were not given a reasonable opportunity to challenge the sources or the information contained therein, the magistrate erred in taking judicial notice of them. See Walentukonis v. State, 932 So.2d 1136, 1136 (Fla. 2d DCA 2006) (reversing the trial court’s restitution order for failure to follow the procedures required by section 90.204 when the court sua sponte took judicial notice of a used car guide to determine the amount of restitution).

Turning to the next issue, we find that the trial court improperly struck the former wife’s amended exceptions to the magistrate’s report as untimely. Florida Family Law Rule of Procedure 12.490 governs magistrate reports and requires that parties file “exceptions to the report within 10 days from the time it is served on them.” Fla. Fam. L. R. P. 12.490(f). The trial court found the former wife’s original exceptions to the report were timely filed. The amended exceptions were filed three months after the original exceptions and five days before the hearing on exceptions. Rule 12.490 does not include any prohibition against filing amendments to exceptions, nor does it provide any deadline upon which amendments must be filed. Because the trial court found that all the requirements of rule 12.490 were met with the former wife’s filing of the original exceptions, it erred in striking her amended exceptions.

Even if the trial court was correct in striking the former wife’s amended exceptions, the court still had an obligation to examine and carefully consider the record to determine if the magistrate’s recommendations were supported by competent evidence. “A magistrate’s findings are subject to being set aside by the trial court when they are clearly erroneous or the magistrate misconceived the legal effect of the evidence.” McNamara v. McNamara, 988 So.2d 1255, 1258 (Fla. 5th DCA 2008). “Whether exceptions are filed to the report of the Master or not, it is the duty of the court to examine and carefully consider the evidence and determine whether under the law and the facts the court is justified in entering the decree recommended by the Master.” Lyon v. Lyon, 54 So.2d 679, 680 (Fla.1951); see also French v. French, 12 So.3d 278, 279-80 (Fla. 5th DCA 2009) (“Given that the trial court was charged with determining whether the magistrate’s findings of fact were supported by competent evidence, the trial court itself should have discovered the errors in the course of making a careful review of the report and the transcript.”).

Here, the three errors committed by the magistrate were clear on the face of the report and in the record. Because the magistrate’s report was clearly erroneous and not supported by competent evidence, the trial court erred in adopting the report. McNamara, 988 So.2d at 1258; Lyon, 54 So.2d at 680.

Reversed and remanded.

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


text:
    Ansel Wre JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2310.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Ansel Wre Johnson, Monticello, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We reverse the trial court’s order denying appellant’s rule 3.800(a) motion to correct illegal sentence and remand for resen-tencing.

In November, 2008, a jury found appellant guilty of domestic battery by strangulation, a third degree felony typically punishable by up to five years in prison. The court sentenced him as a habitual felony offender (HFO) to an enhanced sentence of ten years in prison. To qualify him as an HFO, the trial court relied on a September, 2003 conviction entered in Texas. The motion to correct illegal sentence at issue argued that the Texas conviction was not a “qualified offense” under the HFO statute.

Section 775.084(l)(e), Florida Statutes (2002), provides:

(e) “Qualified offense” means any offense, substantially similar in elements and penalties to an offense in this state, which is in violation of a law of any other jurisdiction, whether that of another state, the District of Columbia, the United States or any possession or territory thereof, or any foreign jurisdiction, that was punishable under the law of such jurisdiction at the time of its commission by the defendant by death or imprisonment exceeding 1 year.

Id. Interpreting this section, the Florida Supreme Court has explained:

Under this statutory definition, a similarity in elements of the offenses being compared, coupled with a penalty for the out-of-state conviction in excess of one year’s imprisonment, will render an out-of-state conviction a “qualifying offense.” The plain language of this statutory definition also indicates that the label given the out-of-state offense by the other jurisdiction is not controlling. The penalty provision ensures that the other jurisdiction provides a penalty that would make the offense a felony in Florida. Hence, if the other jurisdiction provides a penalty of a year or less for an offense, that offense cannot serve as a “qualifying offense” in Florida because such a penalty makes the offense a misdemean- or in Florida.

O’Neill v. State, 684 So.2d 720, 721 (Fla. 1996).

The trial court denied appellant’s motion and determined that the Texas conviction qualified. The court noted that the Texas offense is labeled a felony and that appellant was sentenced to 18 months incarceration for the offense. The court found that the Texas offense was “substantially similar” to the felony version of fleeing to elude a law enforcement officer. § 816.1935(2), Fla. Stat. (2003).

Because a “qualified offense” must be substantially similar to a “felony” offense in Florida at the time of its commission, we must disagree. The Texas offense would have been a misdemeanor if committed as charged in Florida in 2003. Appellant therefore, has established that his Texas conviction is not a “qualified offense.”

Appellant committed the Texas offense on May 22, 2003. He was charged and convicted of evading arrest or detention. The Texas statute in effect at the time provided:

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
(2) felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section; or
(B) another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or
(3) a felony of the second degree if another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight.

§ 38.04, Texas Penal Code (2002). Appellant was convicted of the “state jail felony” version of the offense in that he used a vehicle to flee the officer. A “state jail felony” in Texas is punishable “for any term of not more than two years or less than 180 days.” § 12.35, Texas Penal Code (2001).

The trial court found that this offense was substantially similar to the felony form of fleeing to elude a law enforcement officer. In Florida, the fleeing to elude statute in effect in May, 2003 provided in relevant part:

(1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 316.1935, Fla. Stat. (2002). The felony form of fleeing to elude required aggravating factors, that is, the officer must have been in a marked vehicle with lights and siren activated. These aggravating factors were not elements of the Texas offense. The Texas offense was enhanced to a felony based solely on the use of a vehicle. In contrast, at the time of the Texas offense, fleeing and eluding in a vehicle (without the aggravating factors) was merely a misdemeanor in Florida.

Appellant is correct that our “substantial similarity” analysis must focus solely on the statutory elements of the offenses and not on the underlying facts or conduct which are not elements. See Gonsalves v. State, 830 So.2d 265, 267 (Fla. 2d DCA 2002); see also Dautel v. State, 658 So.2d 88, 90 (Fla.1995) (“A conviction establishes only the elements of the crime, and does not include underlying facts or conduct which are not elements of the offense.”).

In Robinson v. State, 692 So.2d 883 (Fla.1997), the Florida Supreme Court held that a conviction under Georgia’s robbery by sudden snatching statute was not a “qualified offense” under the HFO statute. The law in Florida at the time required some use of force beyond that necessary to remove the property from the other person, that is, there had to be resistance by the victim overcome by the force of the offender. Id. at 886-87. Because the Georgia statute did not contain similar requirements, the Florida Supreme Court concluded that the elements of the Georgia robbery by sudden snatching offense was not substantially similar to Florida’s robbery offense. Id. at 887. The robbery by sudden snatching would have been a misdemeanor theft under Florida law at the time. Implicit in Robinson’s holding is the conclusion that a “qualified offense” under the HFO statute must be substantially similar to a “felony” offense in Florida, not just any offense.

The Texas offense was not substantially similar to the felony form of fleeing to elude that was in effect in Florida in 2003. Nor has the State or the trial court identified any other substantially similar felony under Florida law in 2003.

For the above reasons, appellant has established that his Texas conviction was not a qualified offense for sentencing him as an HFO. The trial court’s order denying appellant’s motion is reversed, and this matter is remanded for a new sentencing hearing at which the State may attempt to present evidence of another qualified offense sufficient to support HFO sentencing. Because appellant has served more than the statutory maximum sentence that would be allowed absent the HFO designation, the trial court shall expedite the proceedings on remand.

Reversed and remanded with directions.

MAY, CIKLIN and LEVINE, JJ., concur.

      . Florida’s fleeing to elude statute was amended in 2004 and now provides that fleeing to elude a law enforcement officer is a third degree felony (even if the officer did not activate lights and siren). § 316.1935(1), Fla. Stat. (2004). However, there is no dispute that our analysis must look to the similarity between the offenses under the law in effect in 2003 when the out-of-state offense was committed. See Hankins v. State, 42 So.3d 871, 873 n. 3 (Fla. 2d DCA 2010).

      . The Texas offense of evading arrest may be similar to resisting an officer without violence under section 843.02, Florida Statutes (2002), which applies where a defendant flees an officer knowing the officer is attempting to make a lawful arrest. See Clark v. State, 976 So.2d 1225, 1226 (Fla. 4th DCA 2008). Resisting an officer without violence, however, is a misdemeanor. Unlike the Texas statute, Florida law does not provide for aggravation of this offense to a felony where a vehicle is used.


author: MAY, J.

text:
    A.W., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1977.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, 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.
   MAY, J.

A juvenile appeals a detention order, placing him in secure detention for contempt of court. He argues the court committed fundamental error in failing to follow the due process requirements of Florida Rule of Juvenile Procedure 8.150(a). We agree and reverse.

The State charged the juvenile with possession of a firearm by a minor and making a false report of a crime. The juvenile entered an open, no-contest plea, and the trial court set the case for a disposition hearing. The Department of Juvenile Justice recommended probation, but the State sought a residential commitment program. The trial court adjudicated the juvenile delinquent, committed him to a moderate risk commitment program, and ordered him to appear in court two days later for a pre-commitment physical examination.

When the juvenile returned for the physical, the following exchange took place:

THE COURT: Why were you late this morning?
THE JUVENILE: I wasn’t late. I’ve been here.
THE COURT: Any reason why I shouldn’t hold you in contempt of court for the way you’re acting? Any reason? All right. I’ll hold you in direct contempt of court. Five days in the detention center for acting disrespectful to the Court. Go ahead and take him down. And do his, his physical.

The trial court entered a written detention order detaining the juvenile for five days “for being disrespectful to the court when asked why he was late for court.” From this order, the juvenile appeals.

We review a direct criminal contempt order for an abuse of discretion. G.G.J. v. State, 28 So.Bd 239, 240 (Fla. 4th DCA 2010).

“Contempt is an act which is calculated to embarrass, hinder, or obstruct the trial court in the administration of justice or which is calculated to lessen its authority or dignity.” M.W. v. Lofthiem, 855 So.2d 683, 684 (Fla. 2d DCA 2003). “Contempt does not exist just because a judge feels aggrieved or vexed.” McRoy v. State, 31 So.3d 273, 274 (Fla. 5th DCA 2010) (citing Via v. State, 633 So.2d 1198, 1198 (Fla. 2d DCA 1994)).

Florida Rule of Juvenile Procedure 8.150(a) controls direct contempt proceedings for juveniles. It provides:

[Direct] contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the court shall inform the person accused of the accusation and inquire as to whether there is any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The accused shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the court and entered of record. Sentence shall be pronounced in open court.

(Emphasis added).

“Purely conclusory statements will not meet the requirement of a recitation of facts.” McRoy, 31 So.3d at 274. Here, the detention order recited only “for contempt of court for 5 days for being disrespectful to the court when asked why he was late for court.” This was insufficient to comply with Rule 8.150(a). J.AH. v. State, 20 So.3d 425, 427 (Fla. 1st DCA 2009) (contempt order “ ‘based on his statements, demeanor, and behavior during [the] hearing’” did not comply with rule 3.830).

The court also failed to give the juvenile “the opportunity to present evidence of excusing or mitigating circumstances.” “Merely asking the defendant if he wishes to explain his behavior does not meet the procedural requirement that he be given an opportunity to present evidence.” Searcy v. State, 971 So.2d 1008, 1014 (Fla. 3d DCA 2008) (citing O’Neal v. State,. 501 So.2d 98, 100 (Fla. 1st DCA 1987)). Here, the trial court simply asked, “Any reason why I shouldn’t hold you in contempt of court for the way you’re acting? Any reason? All right. I’ll hold you in direct contempt of court.”

There may have been other contemptuous nonverbal actions on the part of the child, but the record does not reflect them. We also note that no judgment was entered as required by Rule 8.150(a). On the record before us, we must reverse and remand the case for the court to vacate the contempt order.

Reversed and Remanded.

STEVENSON and GERBER, JJ., concur.


text:
    Paul GOULD, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2886.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Ashley N. Minton of Fender & Minton, P.A., Fort Pierce, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his conviction and sentence for lewd and lascivious molestation by an offender older than eighteen on a victim under the age of twelve. Defendant raises several issues on appeal, all of which we have carefully considered and affirm. We briefly write to address only the first issue, in which Defendant raises a claim of ineffective assistance of counsel.

Generally, claims of ineffective assistance of counsel are not cognizable on direct appeal. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001). An exception exists “only in the rare case where both prongs of Strickland — the error and the prejudice — are manifest in the record.” Boyd v. State, 45 So.3d 557, 560 (Fla. 4th DCA 2010). This is not one of those exceptional cases, and the claims of ineffective assistance of counsel Defendant asserts are not apparent on the face of the record.

We affirm on this issue without prejudice for Defendant to raise any claims of ineffective assistance of counsel in post-conviction proceedings.

Affirmed.

WARNER, FORST and KLINGENSMITH, JJ., concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Roshan RAMKHELAWAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3711.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Rehearing Denied May 28, 2014.
    Roshan Ramkhelawan, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Defendant filed a rule 3.850 motion, which was summarily denied for lack of a valid oath. On appeal, we found that Defendant was entitled to have leave to amend under Spera v. State, 971 So.2d 754 (Fla.2007), and we reversed and remanded four of the claims. See Ramkhalawan v. State, 50 So.3d 1241 (Fla. 4th DCA 2011). A month after Defendant filed his amended motion on remand, he moved for leave to supplement the pending amended motion by adding a new claim. The trial court denied the motion for leave to supplement while the other four claims were still pending. Defendant now appeals the trial court’s denial of the motion for leave to supplement. Because the motion which Defendant sought to supplement is still pending resolution, we find that this is an appeal of a non-final order that is premature and unauthorized. See Leger v. State, 818 So.2d 697 (Fla. 5th DCA 2002). Accordingly, the appeal is dismissed for lack of jurisdiction without prejudice to Defendant’s appeal once the trial court enters a final order on the rule 3.850 motion.

Dismissed.

STEVENSON, GROSS and TAYLOR, JJ., concur.

      . Defendant's name is listed as "Ramkhela-wan” in all court documents filed in this case, including the order appealed.


text:
    CLIPPER PROPERTIES LIMITED PARTNERSHIP and Edward Rhodes, Appellants, v. ALBANESE-STOFFT AT OCEAN BREEZES, LLC, a Florida Limited Liability Company, Appellee.
    No. 4D13-3089.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Daniel J. Barsky and Alfred A. LaSorte Jr. of Shutts & Bowen, LLP, West Palm Beach, for appellants.
    Lainie J. Simon, Boca Raton, for appel-lee.
   PER CURIAM.

Appellants appeal an award of attorney’s fees and costs entered in their favor. Ap-pellee confesses error in the reduction of the fee award in the amount of $5,430 for duplicative billing. We reverse and remand for the trial court to adjust the fee award in accordance with appellee’s confession of error.

Reversed and remanded.

TAYLOR, CIKLIN and LEVINE, JJ., concur.


text:
    Octavius SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3474.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.

      Octavius Scott, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Octavius Scott timely appeals the summary denial of his rule 3.800 motion alleging that his sentence is illegal. Scott was convicted, following a jury trial, of burglary of a dwelling and petit theft. He was sentenced on April 9, 2009, to twelve years’ imprisonment as a habitual felony offender (HFO) and time served, respectively. Although the trial court found the claim successive to an earlier rule 3.800 motion, Scott correctly points out that he did not raise this exact claim. Nevertheless, we affirm.

Scott contends that his HFO sentence is illegal because he did not have the requisite predicate offenses in order to be habit-ualized as an HFO. He alleges that one of the predicate offenses used to habitualize him could not qualify him as an HFO, because he was a juvenile at the time he committed that offense. It appears from the record, however, that he was sentenced as a youthful offender. A youthful offender sentence may properly be considered a predicate offense for habitualization. See § 775.084, Fla. Stat. (2008). “A youthful offender sentence is an adult sanction.” Crain v. State, 653 So.2d 442 (Fla. 2d DCA 1995); Cooper v. State, 465 So.2d 1334 (Fla. 4th DCA 1985); accord State v. Richardson, 766 So.2d 1111, 1113 n. 1 (Fla. 3d DCA 2000) (“A youthful offender sentence is an adult sanction under Chapter 958, Florida Statutes, not a juvenile sanction under Chapter 985, Florida Statutes.”); Whitfield v. Singletary, 730 So.2d 314, 315 (Fla. 3d DCA 1999) (“It is true that the defendant was sentenced as a youthful offender for this crime, but that does not preclude its consideration as a predicate offense”). Therefore, he has not shown that the predicate offense could not be considered, and thus he has shown no illegality in his HFO sentence.

Affirmed.

WARNER, CONNER and KLINGENSMITH, JJ., concur.


text:
    Leonard MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4793.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Leonard Mitchell, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. CORAL PALMS VILLAGE HOMEOWNER’S ASSOCIATION, INC., Appellee.
    No. 4D13-856.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Philip E. Ward, Jeffrey T. Kuntz and Evan D. Appell of GrayRobinson, P.A., Fort Lauderdale, for appellant.
    John H. Pelzer of Greenspoon Marder, P.A., Sunrise and Jeremy F. Tyler of Geyer Fuxa Tyler, PLLC, Fort Lauderale, for appellee.
   PER CURIAM.

Affirmed. See Jossfolk v. United Property & Casualty Insurance Company, 110 So.3d 110 (Fla. 4th DCA 2013).

MAY, CIKLIN and LEVINE, JJ„ concur.


text:
    Jacqueline KUSHNER and Larry J. Kushner, Appellants, v. WYNDSONG ESTATES HOMEOWNERS ASSOCIATION, INC., Appellee
    No. 4D13-935.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Jacqueline Kushner and Larry J. Kush-ner, Long Branch, New Jersey, pro se.
    Joseph L. Thillman of Gerstein & Associates, Boca Raton, for appellee.
   PER CURIAM.

We reverse the amended final judgment of foreclosure as the trial court should not have entered a final order while the appellants’ counterclaim remained pending. See Peterson v. Affordable Homes of Palm Beach, Inc., 65 So.3d 112, 113 (Fla. 4th DCA 2011) (holding that summary judgment on a foreclosure claim was premature while the mortgagor’s fraud counterclaim was still pending); see also Woods v. Huntington Fed. Sav. Bank, 622 So.2d 1363, 1365 (Fla. 2d DCA 1993) (pending counterclaim precluded summary judgment of foreclosure); Shahar v. Green Tree Servicing LLC, 125 So.3d 251, 253 (Fla. 4th DCA 2013) (summary judgment of foreclosure premature because defense of unclean hands was still pending).

Reversed and remanded.

WARNER, FORST and KLINGENSMITH, JJ, concur.

      . Although appellant claims that the counterclaim has been disposed of, such a ruling is not part of the record, and did not occur prior to the rendition of the amended final judgment.

      . The appeal was timely because it was filed within thirty days of the amended final judgment, which materially changed the legal obligations of the defendants from the original final judgment, which had not reserved jurisdiction to permit the amendment of the amounts due. Cf. B.G. Leasing, Inc. v. Heider, 372 So.2d 184, 185 (Fla. 3d DCA 1979).


author: STEVENSON, J.

text:
    Cecilia LOPEZ, by and through her Attorney-in-Fact and Next Friend, Bernardo LOPEZ, Appellant, v. ANDIE’S, INC., a Florida Corporation d/b/a Willow Manor Retirement Home, Appellee.
    No. 4D12-2361.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Adam J. Richardson and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Diana Santa Maria and Max N. Panoff of the Law Offices of Diana Santa Maria, P.A., Fort Lauderdale, for appellant.
    Sorraya M. Solages-Jones and Jerome R. Silverberg of Lewis Brisbois Bisgaard & Smith LLP, Fort Lauderdale, for appel-lee.
   STEVENSON, J.

Cecilia Lopez, by and through her attorney-in-fact Bernardo Lopez (“Estate”), appeals an order granting Andie’s, Inc.’s, d/b/a Willow Manor Retirement Home, motion to compel arbitration. Because the terms of the agreement substantially diminishes Estate’s statutory rights under the “Assisted Living Facilities Act,” Chapter 429, Florida Statutes (2010), we reverse.

In Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 297 (Fla. 4th DCA 2005) (en banc), this court held an arbitration agreement void as contrary to public policy because the arbitration agreement “substantially limit[ed] the remedies created by the Nursing Home Residents Act [NHRA].” The arbitration agreement stated that all disputes would be resolved by binding arbitration administered by the National Health Lawyers Association (“NHLA”). Id. At issue was section 606 of the NHLA rules, which stated that an “arbitrator may not award consequential, exemplary, incidental, punitive or special damages against a party unless ... there is clear and convincing evidence that the party against whom such damages are awarded is guilty of conduct evincing an intentional or reckless disregard for the rights of another party or fraud, actual, or presumed.” Id. at 298. This court noted, however, that “[r]equiring clear and convincing evidence of intentional or reckless misconduct effectively eliminates recovery for negligence, and is contrary to the Nursing Home Residents Act . Id. (emphasis added). By forcing a patient or representative to rely on NHLA rules, “some of the remedies provided in the legislation for negligence would be ... for all intents and purposes [] eliminated.” Id. Thus, this court found the agreement contrary to public policy. Id. at 299.

The instant case presents a similar situation to that in Blankfeld. In connection with her admission to Willow Manor Retirement Home, Ms. Lopez signed an arbitration agreement providing that any controversy or dispute between the parties would be resolved by arbitration as provided by the American Health Lawyers Association (“AHLA”) alternative dispute resolution rules. In February of 2011, she was found to have sustained a severe fracture in her right arm. Lopez later filed a complaint alleging a deprivation of rights under the Assisted Living Facilities Act (“ALFA”), “a remedial statute closely akin to the NHRA.” Alterra Healthcare Corp. v. Bryant, 937 So.2d 268, 266 (Fla. 4th DCA 2006).

Like section 400.023 of the NHRA, section 429.29(2) of the ALFA provides that claims for a violation of a resident’s rights or for negligence may be proved by “a preponderance of the evidence.” § 429.29(2), Fla. Stat. (2006). Perhaps attempting to rectify the problems identified in Blankfeld, rule 6.06 of the AHLA rules was revised in July 2010 to provide that the “clear and convincing” standard would apply only to the award of “consequential, exemplary or special damages” in a tort action. Nevertheless, the revision did nothing to erode rule 6.06’s improper elevation of the burden of proof on a resident’s potential recovery since “consequential” damages and occasionally even “special” damages are terms used to describe compensable losses in negligence actions as well as other tort claims. See Lochrane Eng’g, Inc. v. Willingham Real-growth Inv. Fund, Ltd., 552 So.2d 228, 233 (Fla. 5th DCA 1989) (consequential damages in tort claim); Gellert v. E. Air Lines, Inc., 370 So.2d 802, 807 (Fla. 3d DCA 1979) (same); Sales Careers, Inc. v. Atrium Office Park, Inc., 318 So.2d 534, 535 (Fla. 3d DCA 1975) (special damages in tort claim).

In conclusion, we hold that the trial court erred in granting the motion to compel arbitration. We also find that the offending “portion” of the subject provisions in AHLA rule 6.06 is not severable from the rest of the arbitration agreement. See Place at Vero Beach, Inc. v. Hanson, 953 So.2d 773, 775-76 (Fla. 4th DCA 2007).

Reversed and remanded.

CIKLIN and KLINGENSMITH, JJ., concur.

      . While this appeal was pending, Ms. Lopez died.

      . During the proceedings in Blankfeld, the National Health Lawyers Association changed its name to the American Health Lawyers Association.

      . The Nursing Home Resident’s Act provides in section 400.023 that
      (2) In any claim brought pursuant to this part alleging a violation of resident’s rights or negligence causing injury to or the death
      of a resident, the claimant shall have the burden of proving, by a preponderance of the evidence, that:
      (a) The defendant owed a duty to the resident;
      (b) The defendant breached the duty to the resident;
      (c) The breach of the duty is a legal cause of loss, injury, death, or damage to the resident; and
      (d) The resident sustained loss, injury, death or damage as a result of the breach.
      § 400.023(2)(a)-(d), Fla. Stat. (2001).

      . AHLA Rules of Procedure for Arbitration, https://www.healthlawyers.org/hlresources/ ADR/Documents/Arbitration5 lfRules05.31. 2012iinal.pdf (last visited March 12, 2014).

      . Indeed, the appellee in the instant case has not argued for severance and has stated that it "is not requesting that this Court add entirely new standards, rules, and/or burdens of proof.”


text:
    Deven COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3235.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2014.
    Rehearing En Banc Denied May 28, 2014.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender (withdrawn as counsel after filing brief), West Palm Beach, and Deven Cooper, Florida City, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant challenges his convictions for lewd or lascivious battery and molestation by contending that the trial court erred in restricting his cross-examination of the victim regarding her prior sexual experiences and her denial of any prior sexual experience to a police officer investigating this case. The court granted the state’s motion in limine to prevent such cross-examination based upon section 794.022, Florida Statutes (2008) (commonly referred to as the “Rape Shield Statute”). The state concedes that the court erred in excluding it on this ground, as the statute does not apply to prosecutions for lewd or lascivious molestation and battery. See § 794.022(2)-(3), Fla. Stat. (2008) (referring, only to prosecutions under section 794.011, the sexual battery statute); Lewis v. State, 591 So.2d 922, 924-25 n. 4-5 (Fla.1991). But the state takes issue with appellant’s contention that he was entitled to cross-examine her on these subjects, contending that they were irrelevant or improper character evidence. We affirm because the issue has not been preserved.

In the trial court, the defense did not argue that the Rape Shield Statute was inapplicable to this type of offense. Both parties and the court assumed that the statute applied. The defense argued that the statute should not be interpreted to exclude the specific testimony he sought to elicit. This is not sufficient to preserve the argument he raises on appeal: that the statute categorically does not apply to these offenses. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010) (“[F]or an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”) (quoting Harrell v. State, 894 So.2d 935, 940 (Fla.2005)); McGee v. State, 19 So.3d 1074, 1079 (Fla. 4th DCA 2009) (“Any specific reason for reversal must be a specific reason that was advanced by the appellant in the trial court.”) (quoting I.R.C. v. State, 968 So.2d 583, 589 (Fla. 2d DCA 2007)). The exclusion of this testimony also does not rise to the level of fundamental error. See Anderson v. State, 841 So.2d 390, 403 (Fla.2003) (defining fundamental error as “error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error”).

As to the claim of ineffective assistance of counsel, we conclude that no ineffective assistance is apparent on the face of the appellate record. See Mansfield v. State, 758 So.2d 636, 642 (Fla.2000); Hills v. State, 78 So.3d 648, 652-53 (Fla. 4th DCA 2012). Our affirmance is thus without prejudice to appellant raising this issue in a postconviction motion.

WARNER, FORST and KLINGENSMITH, JJ„ concur.

      . The testimony was not proffered, and the record reveals that the defense and the state disagreed as to what the victim said about prior sexual experience.

      . The lack of a proffer would also impede any fundamental error review in this case.