author: CLARK, J.

text:
    Lloyd Steve BURDESHAW and Teresa Burdeshaw, Appellants, v. The BANK OF NEW YORK MELLON (fka The Bank of New York), as Trustee for Mastr Alternative Loan Trust 2006-2, Mortgage Pass-Through Certificates, Series 2006-2, Appellee.
    No. 1D13-2703.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.

      Jeffrey P. Whitton, Panama City, for Appellant.
    Tricia Julie Duthiers, Juan A. Gonzalez and Frank P. Cuneo of Liebler, Gonzalez & Portuondo, Miami, for Appellee.
   CLARK, J.

The Burdeshaws appeal the final judgment of foreclosure in favor of The Bank of New York Mellon (“BNYM”), contending that the evidence to support the amount of indebtedness was inadmissible hearsay and thus, no admissible evidence supported the trial court’s determination of the amount due. In addition to reversal of the final judgment, the Burdeshaws seek remand of this case with instructions to dismiss, based on a meritorious motion pursuant to rule 1.420(e), Florida Rules of Civil Procedure, taken under advisement by the trial judge and denied de facto when the court eventually conducted a bench trial and issued a final judgment. We agree on both points, reverse the final judgment of foreclosure, and remand for dismissal of the action.

Appellants executed a note payable to Bay Bank & Trust Co. for $600,000.00 on October 31, 2005. The note was secured by a mortgage which was also signed by Appellants on October 31, 2005. Bay Bank & Trust assigned the mortgage to Mortgage Electronic Registration Systems (“MERS”) on November 10, 2005.

On March 19, 2009, Suntrust Mortgage, Inc. filed a complaint for foreclosure on the mortgage and alleged that Suntrust “owns and holds said note and mortgage.” Suntrust attached to its complaint a copy of the note, with a special endorsement on the last page of the note signed but not dated by an official of Bay Bank & Trust. See § 673.2051(1), Fla. Stat., (because Sun-trust is specifically identified as entity to whom note was payable, indorsement is “special indorsement”). The words “without recourse, pay to the order of Suntrust Mortgage, Inc.” appeared above the signature of the Bay Bank & Trust officer.

The Burdeshaws filed their notice of inactivity, pursuant to rule 1.420(e), on July 20, 2010. After sixty more days with no record activity, on September 20, 2010, the Burdeshaws filed their motion to dismiss. Other than this notice and motion, no paper Was filed in the court file by either party or the court between September 16, 2009 and October 4, 2010.

Suntrust did not file a response to the motion to dismiss for lack of prosecution but did file other papers in the record on October 4, 2010, and thereafter. A motion hearing was held on November 8, 2010, and one of the motions considered by the court was the Burdeshaws’ motion to dismiss under rule 1.420(e). The record does not contain a transcript of this hearing and Suntrust did not file a written assertion of good cause why the action should have remained pending. In the order entered November 29, 2010, the court stated that it was taking the rule 1.420 motion to dismiss “under advisement.”

BNYM was substituted as party plaintiff on January 25, 2013, and a bench trial took place on May 13, 2013. In support of its documentary evidence, BNYM presented the testimony of Nancy Johnson, twenty-two year Suntrust employee currently in the position of “default proceedings officer.” She testified that Suntrust was servicing the loan and that she had reviewed Suntrust’s records in preparation for the trial. Counsel for BNYM inquired about the documents it sought to admit into evidence, including the letter notifying the Burdeshaws of the default, the note and mortgage, and a “computer printout from Fidelity system” purporting to show the transactions on the account and the balance owed. Counsel for the Burdeshaws objected to Ms. Johnson’s testimony regarding each document in turn, stating that there was no predicate for Johnson’s testimony, that BNYM had not established any of the elements to qualify her as the custodian of the records, and that BNYM had not otherwise qualified Ms. Johnson to authenticate the computer-generated records. The trial court overruled each objection until eventually, counsel requested “a standing objection, so I don’t keep making it,” which was granted.

During Ms. Johnson’s testimony to authenticate Plaintiffs Composite Exhibit 3, admitted into evidence to prove BNYM’s claim for a payoff balance of $822,677.79, she stated that the exhibit was “a printout from the Fidelity system that we use” and that Suntrust had prepared and provided the printout to counsel for BNYM. Over the defense’s objection, Ms. Johnson read aloud the principle balance, the past due interest amount, and other fees and charges indicated on the exhibit. On cross examination, Ms. Johnson explained that her knowledge of the amounts owed came from her review of the printout and that the printout was “on our system.” When asked by whom or how fees and expenses were posted to the account, Johnson testified that “everyone” was using the Fidelity system and “they would input any transactions, any adjustments.” Ms. Johnson stated that she had reviewed the numbers on the printout the Thursday of the week prior to trial and that the initial principle balance of the loan “would have been input by someone handling the origination of the loan.” She did not know where any information on payments made prior to Sun-trust’s first entries for the file might come from. On re-direct, Ms. Johnson clarified that her job duties were to review mortgages, notes, payment histories, and breach letters to prepare for foreclosure hearings, and to testify at trials about records kept by Suntrust. Accordingly, she considered herself a records custodian for Suntrust.

At the close of evidence, counsel for the Burdeshaws renewed the motion to dismiss under rule 1.420(e), which had not yet been ruled on after the court took it under advisement in 2010. Counsel argued that when no record activity took place for the requisite time periods, dismissal was mandatory and that he never abandoned that motion. Counsel also argued that BNYM had not proved their standing or the amount due under the note through documents authenticated by a records custodian, and that Ms. Johnson’s testimony was “multiple hearsay” because the documents were based on “what Bay Bank transferred over as the account.” BNYM’s counsel responded that any hearsay objection had been waived “because he did not raise it at the time of the presentation of the testimony.” The court found for BNYM and entered the final judgment of foreclosure with an amount due of $822,677.79.

Contrary to BNYM’s position in this appeal, the issue of the sufficiency of the evidence to support the final judgment was adequately preserved for review. Appellants challenge the sufficiency of the evidence because the only evidence to support the final judgment was erroneously admitted hearsay not qualified for the business records exception set out in section 90.803(6)(a), Florida Statutes. During the bench trial, defense counsel continually objected to the hearsay evidence and eventually requested and was granted a standing objection. While section 90.104, Florida Statutes, requires “a specific ground of objection if the specific ground was not apparent from the context” to challenge the admission of evidence, the specific ground was apparent from the context of counsel’s repeated objections in this trial. Section 90.104 does not require “magic words” to preserve a hearsay objection, so long as the trial court is informed of the perceived error. See Corona v. State, 64 So.3d 1232,1242 (Fla.2011).

It is true that defense counsel did not use the words “hearsay” or “section 90.803(6), Florida Statutes” in his objections. However, he did challenge BNYM’s failure to establish “the steps to make her a records custodian,” the “complete lack of predicate to establish her bona fides at least to authenticate the document,” and he offered “to provide the court with some law on what a records custodian has to establish.” The context of the objections to the witness’ testimony about the records in this case made it clear to the court and to opposing counsel that the objection was directed towards the admission of computer-generated hearsay documents due to the plaintiff’s failure to establish any of the grounds required for the business records exception to the hearsay rule under section 90.803(6).

Furthermore, because Ms. Johnson was the only witness to authenticate the only documentary evidence to support the amount owed at a bench trial, rule 1.530(e), Florida Rules of Civil Procedure, allows Appellants to challenge the sufficiency of the evidence on appeal even without the repeated objections made by counsel. Although a failure to object is not a prudent or advisable practice, Appellants’ challenge to the sufficiency of the evidence to support the judgment is cognizable on appeal pursuant to rule 1.530(e) regardless of the specificity of defense counsel’s numerous objections during the bench trial. The rule provides:

When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

See also Wolkoff v. Am. Home Mtg. Servicing, Inc., — So.3d —, —, 89 Fla. L. Weekly D1159, 2014 WL 2378662, at *1 (Fla. 2d DCA May 30, 2014) (“The Wol-koffs were not required to make a contemporaneous objection to the sufficiency of the evidence in order to preserve the issue for appeal.”). Accordingly, Appellants’ challenge to the sufficiency of the evidence to support the final judgment of foreclosure, due to the failure of BNYM to establish the business records exception to the hearsay rule for the documents upon which the judgment is based, is properly before this Court. The sole support for the trial court’s ruling on the amount owed on the debt was Plaintiff’s Composite Exhibit 3, a printout purportedly showing the fees, expenses, and principal balance due on the note and mortgage. BNYM’s only witness to authenticate this document as a business record admissible under section 90.803(6), Florida Statutes, was Ms. Johnson. Counsel never asked the witness, and she never testified, whether composite exhibit 3 or the entries it contained were: (1) made at or near the time of the event; (2) made by or from information transmitted by a person with knowledge; (3) kept in the ordinary course of a regularly conducted business activity; and (4) made as a regular practice of that business. See Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).

“[L]oan payment history printouts, if properly authenticated, are routinely admitted as a business record in foreclosure cases.” Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014). Proper authentication by a witness requires that the witness demonstrate familiarity with the record-keeping system of business that prepared the document and knowledge of how the data was uploaded into the system. Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012); see also Cayea, 138 So.3d at 1217. For instance, in Weisenberg, the affiant was “a supervisor at the bank’s servicing agent.” Her affidavit about the cashiering department’s responsibility for collecting and applying payments and about the “program known as the mortgage servicing platform” demonstrated that she had sufficient knowledge and familiarity with the bank’s record-keeping system and how the data was uploaded into the system to qualify her affidavit as an admissible business record to support the final judgment of foreclosure.

Similarly, in Lindsey v. Cadence Bank, N.A, 135 So.3d 1164 (Fla. 1st DCA 2014), the affidavit of the bank’s assistant vice-president was sufficient to qualify the attached computer printouts to support the amount due on the loan as admissible business records. The vice-president’s affidavit indicated her familiarity with the bank’s computerized loan processing system and specifically her knowledge of how the system worked. She described how the system automatically maintained loan balances based on payments entered into the system by the bank’s loan processing employees, that the payments were entered into the system at the time of payment, and that the loan records were updated within twenty-four hours to reflect each transaction. Lindsey, 135 So.3d at 1168. Summary judgment for the bank was thus affirmed.

Likewise, in Cayea v. CitiMortgage, Inc., the final judgment of foreclosure after a bench trial was affirmed where the proof of the amount owed was based on bank: records deemed admissible business records by the trial court. The bank’s witness was “an employee” of CitiMortgage’s “default research and litigation department.” Cayea, 138 So.3d at 1215. The witness testified that the bank’s regular business practice was to enter payments into its Citilink system upon receipt and that employees of the payment processing department actually entered the data. He also described the two sections of the payment processing department and the duties of each. Finally, the witness testified that the entries were kept in the ordinary course of business and that individual records were ordinarily kept for each loan by CitiMortgage. The court found the witness “well enough acquainted with the activity to provide testimony” and equated this witness’ knowledge with that of the witness in Weisenberg, as distinguished from the witness’ lack of knowledge in Glarum v. LaSalle Bank N.A., 83 So.3d 780, 783 (Fla. 4th DCA 2011). Cayea, 138 So.3d at 1218.

On the other hand, if not properly authenticated, loan payment history printouts and other evidence of the amount due on a loan are inadmissible hearsay. For example, in Glarum, the court reversed summary judgment for the bank because the bank’s sole witness testified from a bank printout without first establishing the hearsay exception for business records. There, the witness/affiant was a “specialist” for the loan servicer and his affidavit stated that he obtained the amount of indebtedness from “his company’s computer system.” Id. at 782. However, the specialist “did not know who, how, or when the data entries were made into [the servi-cer’s] computer system” and “could not state if the records were made in the regular course of business.” Id. The specialist had even less knowledge about the business practices of the prior loan servi-cer, the apparent source of the data upon which his own company relied to open the file. Accordingly, both the witness’ testimony and the affidavit containing the data for the amount owing were inadmissible hearsay, unqualified for the business records exception under section 90.803(6)(a). Because there was no other competent evidence to prove the amount due and owing, summary judgment was reversed.

This Court reversed the final judgment of foreclosure in Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011), due to the erroneous admission of an affidavit of the amounts due and owning. The bank’s witness at the bench trial was “the regional security officer” for the bank, who “candidly admitted that he had no knowledge as to the preparation or maintenance of the documents offered by the bank,” “did not know if the source of the information contained” in the record was correct, and “did not know if the amounts reported in the affidavit were accurate.” Mazine, 67 So.3d at 1132. Because the affidavit was the only evidence supporting the amount of defendants’ default, admission of the document was harmful error requiring reversal of the judgment of foreclosure.

The final judgments of lien foreclosure were reversed in Yang v. Sebastian Lakes Condo. Ass’n Inc., 123 So.3d 617 (Fla. 4th DCA 2013), because the current management company’s witness had no knowledge of the starting balance of the loan, never worked with the original accountant, and had no knowledge of how the original figures were entered into the ledgers. Over objection to the hearsay account ledgers as not properly authenticated via the business records exception, the trial court admitted the ledgers. These documents were the only support for the amounts owed. Finding that the foundation for admitting the ledgers into evidence was lacking, the appellate court reversed the final judgment of foreclosure.

Most recently, in Wolkoff, the appellate court reversed the final judgment of foreclosure for the mortgagee, entered after a bench trial, because the amount of indebtedness was not sufficiently proved. At the bench trial, the mortgagee offered the testimony of Mr. Vent, “a default case resolution representative for the mortgagee, who authenticated the promissory note, mortgage, and payment history.” Wolkoff, — So.3d at -, 2014 WL 2378662, at *1. However, “when Vent testified about the amount of debt owed by the Wolkoffs he merely confirmed that the totals given to him on a proposed final judgment ‘seemed accurate’; he never openly recited the total amount of indebtedness, nor did counsel for [the mortgagee] ask him to. It did not submit the proposed final judgment or any business records relevant to the Wol-koffs’ mortgage payment history as evidence.” Id.

While this appeal is not based on a challenge to BNYM’s standing to foreclose, the business records exception to the hearsay rule as set out in section 90.803(6)(a) was applied to proof of standing in Hunter v. Aurora Loan Services, LLC, 137 So.3d 570 (Fla. 1st DCA 2014). There, Aurora offered into evidence “certain computer-generated records” pertaining to transfers of the note and mortgage. Hunter, 137 So.3d at 571. The printouts contained no indication that they were prepared by the original lender, MortgagelT, and Aurora attempted to authenticate the documents through the testimony of Mr. Martin, an employee of the servicer of the loan at the time of trial. The court stated:

At the time of trial in 2012, these records were possessed by Rushmore Loan Management Service (“Rushmore”), the latest in a succession of loan servicers_ Asserting the records originally came from MortgagelT, Aurora relied on the testimony of Rushmore employee Roger Martin to lay the necessary foundation for admitting the records into evidence under section 90.803(6)(a), Florida Statutes, the business records exception to the hearsay rule.

Mr. Martin testified that he has worked in the residential mortgage industry for approximately 15 years, performing a variety of duties, including due diligence and underwriting.... He had not worked at any time for Mortga-gelT. But he testified, based on his dealings with the company while at Lehman Brothers, that MortgagelT’s business practice, upon the sale of a loan and mortgage, was to send electronic versions of the pertinent documents to the new owner, determine a post-sale “transfer date” on which loan servicing would transfer from its servicer to the new owner’s servicer, and retain possession of the original note and mortgage documents until the transaction was fully completed. According to Mr. Martin, this procedure is standard across the mortgage industry.

Id. at 571-72.

Regarding notations on the computer printouts, Mr. Martin “had no knowledge about who generated the notations, or how and where that individual obtained the information. Neither did he have such knowledge about the Account Balance Report.” Id. at 572. He could not testify from personal knowledge that either document belonged to or was generated by the original lender but he did testify that the computer program from which the notes log originated was “used across the industry, that a records custodian for the loan servicer is the person who usually inputs such notes, and that normal industry practice is for a lender’s accounts payable department to create an account balance report reflecting a zero balance on the loan when it is sold to another entity.” Id.

This Court found that Mr. Martin’s testimony was insufficient to “establish the necessary foundation for admitting the Account Balance Report” and the other documents under the business records exception. Hunter at 573. The witness was never employed by the original lender and lacked “particular knowledge of Mortga-gelT’s record-keeping procedures.” Id. “Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contain derived from a person with knowledge, whether MortgagelT regularly made such records, or, indeed, whether the records belonged to MortgagelT in the first place. His testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing.” Id.

In this case, BNYM failed to establish any foundation qualifying the printout Ms. Johnson read as a business record and failed to establish any foundation qualifying Ms. Johnson as a records custodian or person with knowledge of the four elements required for the business records exception. See Yisrael, 993 So.2d at 956. Accordingly, the admission of Ms. Johnson’s testimony about the loan balance and the admission of the computer printouts she was called to authenticate, over the objections of opposing counsel, constituted reversible error. Johnson’s only knowledge about the amount due and owing came from her review of the computer printouts and she had no information about how and when those records had been prepared or where the data came from. Her testimony that “everyone” was using the Fidelity system and “they would input any transactions, any adjustments” is comparable to the witness’ testimony in Hunter about general mortgage industry practices. Ms. Johnson’s assumption that the original loan amounts “would have been input by someone handling the origination of the loan” was merely supposition, based on her general knowledge of ordinary mortgage industry practices, not any specific knowledge about this debt or the transaction of the information between the original lender and subsequent servicers, including Suntrust. She was thus unable to show any of the requirements for establishing a proper foundation for the amounts or the documents she relied on.

Under these circumstances and considering the testimony elicited from the witness in this case, the admission of BNYM’s composite exhibit 3 was reversible error and no other evidence was presented to support the amount owed on the note. Because there is no evidence to support the amounts contained in the final judgment, reversal is required.

Finally, although it might be appropriate to remand for further proceedings under other circumstances, this case does not present a reason to afford BNYM additional time and another opportunity to prove its case. As the Second District has held “[ajppellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.” Wolkoff, — So.3d at -, 2014 WL 2378662, at *3. The complaint initiating this action was filed in 2009. The defendants’ motion to dismiss for lack of prosecution, filed in 2010, was supported by the absence in the record of any activity in the file for the time periods set out in rule 1.420(e), and by the absence of an assertion by the plaintiff of good cause, or any cause, prior to the hearing on the motion, for the action to remain pending. As noted in Wilson v. Salamon, 923 So.2d 363, 368 (Fla.2005), and Metro. Dade Cnty. v. Hall, 784 So.2d 1087 (Fla.2001), the mandatory language of the rule — “the action shall be dismissed” — leaves the trial court with no discretion in the matter. “There is either activity on the face of the record or there is not.” Metro. Dade Cnty. v. Hall, 784 So.2d at 1090.

Accordingly, the final judgment of foreclosure is reversed and this cause is remanded for entry of an order of dismissal of the case.

VAN NORTWICK and ROBERTS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Phillip A. FORTUNE, Appellant, v. GULF COAST TREE CARE INC./Florida Citrus Business and Industries, Appellees.
    No. 1D13-5580.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2014.

      J. Craig Delesie, Jr., of Kadyk & Dele-sie, P.A., Riverview, for Appellant.
    Hinda Klein and Thomas G. Regnier of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Sehefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant argues that the Judge of Compensation Claims (JCC) erred in denying his claim for reimbursement of medical expenses, mileage, and co-payments incurred for treatment received following his May 19, 2011, accident. We agree and reverse the JCC’s denial of those reimbursements.

The relevant facts are not in dispute. Claimant suffered a dislocated shoulder after an assault by an angry bicyclist (a dentist), who rode up and punched Appellant as he was sitting in his vehicle preparing to enter a gated community to deliver an estimate to a customer. Claimant received emergency treatment the day of the accident at Brandon Regional Hospital, where his shoulder was placed back into proper alignment, and he was advised to seek follow-up care. Even though Claimant’s supervisor was immediately notified of the incident, came to the scene of the incident, and followed Claimant to the hospital, a notice of injury was not completed at that time.

Thereafter, Claimant received follow-up care at a Veterans Administration facility beginning approximately eleven days after the incident and culminating in an attempted surgical repair about two months later. During this relevant time period, Claimant and the Employer maintained their working relationship.

The Carrier first received notice of the injury in September 2012, some sixteen months after the incident. Upon receiving notice of the accident, the Carrier denied compensability of the injuries.

Following a merits hearing, the JCC found Claimant was an employee of Gulf Coast Tree Care, Inc., and that he was in the course and scope of his employment at the time of the accident. The JCC required the Employer/Carrier (E/C) to reimburse the emergency treatment provided to Claimant on the date of the accident and also required the E/C to provide Claimant with future medical treatment. The JCC denied, however, reimbursement for the follow-up treatment in the time period immediately following the accident. The JCC did so because Claimant failed to request this medical care, or any medical care, from either the Employer or the Carrier.

When the facts are not in dispute, the application of law to those facts is reviewed de novo. See Airey v. Wal-Mart, 24 So.3d 1264, 1265 (Fla. 1st DCA 2009) (noting that when “[t]he pertinent facts are undisputed ... the issue is one purely of law, subject to de novo review”). To the extent resolution of an issue requires statutory interpretation, review is de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004) (holding statutory interpretation is subject to de novo review). In construing a statute, courts must first look to its plain language. See Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008). “A basic tenet of statutory interpretation is that a ‘statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.’ ” Jones v. ETS of New Orleans, Inc., 798 So.2d 912, 914-15 (Fla.2001) (citing Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996)). Here, the relevant section is 440.13(2)(c), Florida Statutes (2010):

If the employer fails to provide initial treatment or care required by this section after request by the injured employee, the employee may obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter. There must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care. However, the employee is not entitled to recover any amount personally expended for the initial treatment or care unless he or she has requested the employer to furnish that initial treatment or service and the employer has failed, refused, or neglected to do so within a reasonable time or unless the nature of the injury requires such initial treatment, nursing, and services and the employer or his or her superintendent or foreman, having knowledge of the injury, has neglected to provide the initial treatment or care.

(Emphasis added.) The underlined portion of section 440.13(2)(c) is an exception to the general rule, detailed earlier in the subsection, and the rule relied upon by the JCC to deny reimbursement of the claimed expenses. There was no dispute that Claimant’s supervisor was aware of Claimant’s injury, that the injury required treatment including surgery, that Claimant was required to miss time from work, and that Claimant was required to limit his activities. The JCC erred by failing to give effect to the exception, where “the employer ... neglected to provide the initial treatment or care.”

In adjudicating this claim, the JCC also failed to recognize that the Employer did not notify the Carrier of the incident until September 2012, some sixteen months after it occurred. Had the Employer notified the Carrier in a timely fashion, as required by statute — “[w]ithin 7 days of actual knowledge of injury or death” § 440.185(2), Fla. Stat. (2010) — then all of the statutorily-mandated notices and information, including the statutorily-required informational brochure (see § 440.185(4), Fla. Stat. (2010)), would have been provided to Claimant.

When the E/C acts in accordance with its obligations under chapter 440, it has considerable control over the provision of medical care. It is only when the E/C fails to fulfill those obligations that it loses that control. See Parodi v. Fla. Contracting Co., 16 So.3d 958, 961-62 (Fla. 1st DCA 2009) (“When an employer abandons its obligation to provide appropriate care, however, it likewise surrenders to the injured employee the right to select a physician and obtain treatment, provided the care is ‘compensable and medically necessary.’ ” (quoting § 440.13(2)(c), Fla. Stat.)). Even though the E/C certainly had the right to deny compensability of the claim, doing so was at its peril. If the basis for the denial is rejected by the JCC, it has lost its right to control the past medical treatment.

Because the JCC failed to apply the plain language of the statute to the undisputed facts, the JCC erred in not awarding the requested benefits — reimbursement for follow-up treatment, reimbursement for mileage, and reimbursement for co-payments. Accordingly, this matter is REVERSED and REMANDED for entry of an order consistent with this opinion.

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


text:
    Daniel Thomas McMULLEN, Husband, Appellant, v. Ann Rowe McMULLEN, Wife, Appellee.
    No. 1D13-6027.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2014.
    Joseph R. Boyd, B.C.S., and James M. Durant, Jr., B.C.S., of Boyd & Durant, P.L., Tallahassee, for Appellant.
    Thomas J. Schulte, Jr. of Judkins, Simpson, High & Schulte, Tallahassee, for Appellee.
   PER CURIAM.

In this dissolution action, we agree with the former husband that the trial court erred in determining that $250,000 of the distribution he received from a non-marital joint venture and transferred into his checking account was subject to equitable distribution; competent substantial evidence does not support the trial court’s finding that those funds were treated, used, or relied on by the parties as a marital asset. See § 61.075(6)(b)3., Fla. Stat. (2011); Holden v. Holden, 667 So.2d 867, 868 (Fla. 1st DCA 1996) (reversing equitable distribution of certificates of deposit purchased with proceeds from a non-marital asset because “[t]he record does not support a conclusion that the parties commingled these non-marital assets [the certificates of deposit] with marital assets”). However, as to the remainder of the equitable distribution award, we disagree with the former husband; competent substantial evidence supports the trial court’s findings that the former husband’s marital efforts and contributions enhanced the value of the non-marital joint venture and the court did not abuse its discretion in determining the amount of the enhancement to which the former wife was entitled. See § 61.075(6)(a)l.b., Fla Stat. (2011). Accordingly, we reverse the portion of the equitable distribution award related to the $250,000 in the former husband’s checking account, but we affirm the final judgment in all other respects.

AFFIRMED in part and REVERSED in part.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.


text:
    Bobby Bernard BRADSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0724.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Bobby Bradshaw seeks review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) of the judgment of and sentence entered against him on one count each of sale and possession of cocaine, in violation of sections 893.13(l)(a)(l), and 893.13(6)(a), Florida Statutes, respectively, following his open plea of nolo contendere. Our review of the record reveals only one reversible error: the imposition in the written sentence of a $100 “Appointed Counsel Attorney Fee,” pursuant to section 938.29, Florida Statutes. The trial court failed to inform the defendant, as required by the statute, of his right to a hearing to dispute the amount of the indigent legal assistance lien created by the imposition of the cost of defense. See § 938.29(l)(a) and (6), Fla. Stat.; Sharpe v. State, 115 So.3d 1021, 1022 (Fla. 1st-DCA 2013); Colson v. State, 114 So.3d 415, 417 (Fla. 1st DCA 2013); Youman v. State, 112 So.3d 693, 694 (Fla. 1st DCA 2013); DeSalvo v. State, 107 So.3d 1185, 1186-87 (Fla. 1st DCA 2013).

Accordingly, we reverse the $100 Appointed Counsel Attorney Fee. On remand, the trial court may reimpose the fee if it follows the correct procedure in doing so. In all other respects, the judgment and sentence are affirmed.

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


text:
    Clifford Scott SNYDER, Appellant, v. Kristie Lee SNYDER, Appellee.
    No. 5D14-1135.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2014.
    Clifford Scott Snyder, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Mayfield v. Mayfield, 929 So.2d 671 (Fla. 5th DCA 2006).

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


text:
    L.P., Father of L.P. and K.P., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D14-2549.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2014.
    Jeffrey Deen, Appellate Counsel, and Ryan Thomas Truskoski, Special Assistant Regional Counsel, of Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellant.
    Ward L. Metzger, of Department of Children and Families, Jacksonville, for Appellee.
    Wendie Michelle Cooper, of Guardian ad Litem Program, Tavares, for Guardian ad Litem.
   PER CURIAM.

AFFIRMED. See M.A. v. Dep’t of Children & Families, 814 So.2d 1244, 1244 (Fla. 5th DCA 2002) (finding “the trial court could not terminate the father’s parental rights under section 39.806(l)(e), Florida Statutes, because the children were not adjudicated dependent ‘as to him,’ ” but “nonetheless affirm [ing] the trial court’s order of termination because parental rights may be terminated without a finding of dependency when abandonment is proven pursuant to the requisites of section 39.806(l)(b)”).

SAWAYA, BERGER and WALLIS, JJ., concur.


text:
    J.S., Father of L.S., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D14-882.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2014.
    David B. Falstad, Winter Park, for Appellant.
    Rosemarie Farrell, Department of Children and Families, Orlando, for Appellee.
    Jennifer S. Paullin, of Guardian ad Li-tem Program, Sanford, for Appellee.
   ON MOTION FOR REHEARING AND CLARIFICATION

PER CURIAM.

Appellee, Department of Children and Families, filed a motion for rehearing and clarification of this court’s prior opinion, dated August 13, 2014. We grant Appel-lee’s motion, withdraw our previous opinion, and substitute this opinion, affirming the order terminating the parental rights of J.S. as to L.S.

AFFIRMED.

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


text:
    C.B., Father of J.B., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D14-2578.
    District Court of Appeal of Florida, Fifth District.
    Oct. 16, 2014.
    Jeffrey Deen, Appellate Counsel, and Ryan Thomas Truskoski, Special Assistant Regional Counsel, of Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellant.
    Ward L. Metzger, of Department of Children and Families, Jacksonville, for Appellee.
    Wendie Michelle Cooper, of Guardian ad Litem Program, Sanford, for Guardian ad Litem.
   PER CURIAM.

C.B., the father of the dependent child J.B., appeals a portion of the trial court’s disposition order, which requires him to engage in anger management counseling as part of his case plan. The Department of Children and Families correctly concedes error because the evidence was insufficient to demonstrate that the father needs to participate in anger management counseling. See Fla. R. Juv. P. 8.410(b)(4) (“The case plan is meaningful and designed to address the facts, circumstances, and problems on which the court based its order of dependency for the child.”). Accordingly, we affirm the trial court’s disposition order, but strike the anger management counseling requirement from the father’s case plan. We remand for entry of an amended order/modification of the order.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Robert FOWLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4485.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Robert Fowler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1286 (Fla.2004).

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


text:
    Michael S. RATLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3673.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Michael S. Ratley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael S. Ratley appeals the denial of his claim of ineffective assistance of trial counsel. Because Ratley is entitled to an evidentiary hearing on his claim, the summary denial of relief was erroneous.

Following the affirmance of his conviction and sentence for the first degree murder of his wife, Ratley timely filed a motion for post-conviction relief on the authority of rule 3.850, Florida Rules of Criminal Procedure. In his motion, he raised four claims of ineffective assistance of trial counsel. In his first claim, Ratley asserted trial counsel rendered ineffective assistance for failing to move to disqualify the trial judge assigned to his criminal case. Prior to the criminal trial, Ratley was a party to a civil proceeding involving the custody his child. According to Rat-ley’s motion, Judge Foster presided over the proceeding and during the course thereof repeatedly referred to Ratley as a “murderer.” Judge Foster later presided over the criminal trial. Ratley alleges in his post-conviction motion that he advised his defense counsel of these facts prior to the commencement of his criminal case, but counsel did not move to disqualify Judge Foster. Judge Foster also presided over Ratley’s post-conviction proceeding at issue in the case at bar.

While granting an evidentiary hearing on the other claims raised, the circuit court denied an evidentiary hearing as to the ineffective assistance claim described above. Explained the circuit court:

Ground One: Defendant attributes several statements to the presiding judge during dependency hearings without attaching or reference to the transcripts of these proceedings of which were conducted with the presence of a court reporter. Without the transcripts defendant’s allegations are unsupported by the record and his request as to Ground One is denied.

Failure to seek disqualification of a trial judge may be the basis for an ineffective assistance of counsel claim. See Thompson v. State, 990 So.2d 482 (Fla.2008); Polanco v. State, 993 So.2d 566 (Fla. 4th DCA 2008). The circuit court did not find Hatley’s claim to be legally insufficient, and indeed, given the allegations made in the motion for post-conviction relief, the claim was sufficient. See Thompson, and Thompson v. State, 764 So.2d 630 (Fla. 1st DCA 2000). If a claim is legally sufficient, the claim can be resolved as a matter of law or by reliance upon the records of the case without resort to an evidentiary hearing. Fla. R. Crim. P. 3.850(f)(5). The circuit court did not resolve the claim as a matter of law and did not rely on records to deny relief. Instead, the circuit court denied relief because Ratley had not yet offered evidence in support of his claim. Such a disposition was erroneous. The State is to be given an opportunity to respond to claim one of the motion for post-conviction relief. Fla. R. Crim. P. 3.850(f)(6). Upon receipt of the State’s response, the trial court is to grant an evidentiary hearing if the claim cannot be denied as a matter of law or because the record refutes the claim; such record must be attached to the order denying relief. See White v. State, 600 So.2d 1236 (Fla. 2d DCA 1992).

Accordingly, the denial of relief as to claim one of Hatley’s motion for post-conviction relief is reversed, and the cause is remanded for further proceedings. We affirm the remaining claims without comment.

AFFIRMED, in part, REVERSED, in part, and REMANDED.

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


text:
    Randy SPENCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0647.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Randy Spencer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

It appearing petitioner has been sentenced in the proceedings in the lower tribunal and has taken a direct appeal of the judgment and sentence in case number 1D14-2644, this petition for writ of certio-rari challenging the trial court’s denial of his motion to dismiss is dismissed. This dismissal is without prejudice to petitioner’s arguing the denial on direct appeal.

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Jerome GEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2294.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Jerome Gee, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying motion for postconviction relief rendered November 22, 2013, in Leon County Circuit Court case number 2005-CF-1524 is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Jamal Che GLENN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2357.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Jamal Che Glenn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen Lynn Bonjour, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order barring petitioner from further pro se filings rendered April 11, 2014, in Duval County Circuit Court case number 16-1997-CF-009877-AXXX-MA is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Jeffrey KENON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3752.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Jeffrey Kenon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order on amended motion for postcon-viction relief rendered February 24, 2014, in Gadsden County Circuit Court case number 2007-CFA-0657 is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

THOMAS, ROBERTS, and ROWE, JJ., concur.


author: ORFINGER, J.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. Fernando SANTOS and Ana Santos, Appellees.
    No. 5D13-3206.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.

      G. William Bissett, Jr., of Kubicki Draper, PA, Miami, for Appellant.
    George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa, and Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O’Lakes, for Appellees.
   ORFINGER, J.

The Florida Insurance Guaranty Association (“FIGA”) appeals a non-final order, compelling it to participate in an appraisal in its sinkhole insurance dispute with Fernando and Ana Santos. FIGA contends that appraisal is inappropriate under the facts of this case, and the San-toses waived their rights to appraisal. We reject FIGA’s arguments and affirm.

In November 2009, the Santoses had a homeowner’s insurance policy with Home-Wise Preferred Insurance Company. Their home sustained suspected sinkhole damage, but HomeWise denied the claim. The Santoses sued HomeWise in June 2011 for breach of contract. HomeWise answered, denying coverage. In September, following HomeWise’s insolvency, the action was stayed when FIGA was activated to assume the Santoses’ claim. In August 2012, after the stay was lifted, FIGA was substituted as the defendant. In November, the parties jointly stipulated to an additional stay to complete a neutral evaluation. The neutral evaluator concluded that sinkhole activity could not be ruled out as a cause of the Santoses’ loss and recommended certain subsurface repairs. On February 18, 2013, FIGA agreed to comply with the neutral evaluator’s recommendations. FIGA filed a motion to dismiss, which the trial court denied. In April, the Santoses filed a request for admissions which did not address the “method of repair” or “amount of loss.” On May 13, the Santoses wrote to FIGA, demanding appraisal. On July 8, the Santoses moved the court to compel appraisal. The trial court granted the motion.

On appeal, FIGA argues that the trial court erred in ordering appraisal because the only dispute between the parties was about the “method of repair,” rather than the “amount of loss.” FIGA also raises concerns regarding the ultimate outcome of the case, including limits on its liability and its legal inability to directly pay the Santoses. However, in Florida Insurance Guaranty Ass’n v. Branco, 148 So.3d 488, 498 n. 6, 2014 WL 4648208 (Fla. 5th DCA Sept. 19, 2014), this Court rejected virtually identical arguments. We again reject these arguments.

FIGA next asserts that the trial court erred in ordering appraisal because the Santoses waived their appraisal rights by engaging in extensive litigation from June 2011 to July 2013. We review this issue de novo as the facts are undisputed. Id. at 493-94. Waiver of the right to seek appraisal occurs when the party seeking appraisal actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal. See id. at 493 (citing Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005)). As we explained in Branco,

the question of waiver of appraisal is not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made. Instead, the primary focus is whether [the insureds] acted inconsistently with their appraisal rights. Saldukas, 896 So.2d at 711; see Am. Capital Assur. Corp. v. Courtney Meadows Apartment, L.L.P., 36 So.3d 704, 707 (Fla. 1st DCA 2010) (finding party did not waive right to appraisal as party had not acted inconsistently with right from time of demand).
Unlike arbitration, “[a]ppraisal 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). Until the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of appraisal) regarding the value of the property or the amount of loss to be appraised. Citizens Prop. Ins. Corp. v. Galería Villas Condo. Ass’n, 48 So.3d 188, 191 (Fla. 3d DCA 2010) (reversing prematurely-ordered appraisal). An insurer that denies coverage does not need to seek appraisal before litigation because “[i]t would make no sense to say that [the insurer] was required to request ... appraisal on a loss it had already refused to pay.” Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 817 (Fla. 3d DCA 2000); see Chimerakis v. Sentry Ins. Mut. Co., 804 So.2d 476, 480 (Fla. 3d DCA 2001) (holding “an action to compel appraisal does not accrue until the policy conditions precedent have been performed or waived, and appraisal is then refused”). Absent contract language to the contrary, we see no reason why the insured should not have the same flexibility in cases when coverage is denied. But see Cypress Pointe at Lake Orlando Condo. Ass’n v. Mt. Hawley Ins. Co., No. 6:10-ev-1459-0rl-36TBS, 2012 WL 6138993, at *2 (M.D.Fla. Nov. 19, 2012) (finding insured acted inconsistently with appraisal right by pursuing litigation for two years, though insurer consistently denied coverage).

148 So.3d at 493-94.

Here, in February 2013, FIGA acknowledged that the Santoses had suffered a sinkhole loss and agreed to comply with the neutral evaluator’s recommendations. Because HomeWise had denied coverage, appraisal was not appropriate until that time. See id. at 494 (holding appraisal not appropriate until coverage conceded or determined). Roughly three months later, the Santoses demanded appraisal. In the interim, aside from responding to FIGA’s filings, they filed a single discovery request. However, because the discovery request did not go to the “amount of loss” or “method of repair,” which is the limited subject of appraisal, we conclude that the Santoses did not waive their rights to appraisal. See id. (finding no waiver despite filing of single discovery request); cf. Lion Gables Realty Ltd. v. Randall Mechanical, Inc., 65 So.3d 1098 (Fla. 5th DCA 2011) (holding discovery request, which went to merits of arbitrable issue, waived arbitration).

Finding no error, we affirm the trial court’s order.

AFFIRMED.

WALLIS and LAMBERT, JJ., concur.

      . “FIGA is a public, nonprofit corporation created by statute to provide a mechanism for payment of covered claims under certain classes of insurance policies issued by insurers which have become insolvent.” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, 67 So.3d 187, 189 (Fla.2011); see §§ 631.51, 631.55, Fla. Stat. (2011).


text:
    FLORIDA INSURANCE GUARANTY, etc., Appellant, v. Frank REYNOLDS and Tracey Reynolds, Appellees.
    No. 5D13-4510.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.
    Diane H. Tutt and Hinda Klein, of Con-roy, Simberg, Ganon, Krevans, Abel, Lur-vey, Morrow, & Schefer, P.A., Hollywood, for Appellant.

      Robert E. Biasotti, of Biasotti and Associates, St. Petersburg, for Appellees.
   ORFINGER, J.

The Florida Insurance Guaranty Association (“FIGA”) appeals, a non-final order, compelling it to participate in an appraisal in its sinkhole homeowner’s insurance dispute with Frank and Tracey Reynolds. FIGA contends that the Reyn-oldses waived their rights to appraisal. We agree and reverse the trial court’s order.

In April 2010, the Reynoldses had a homeowner’s insurance policy with Home-Wise Preferred Insurance Company. Their home sustained suspected sinkhole damage, but HomeWise denied their claim. In February 2011, the Reynoldses sued HomeWise for breach of contract. Home-Wise answered, denying that a sinkhole loss had occurred, and more generally, denying that any covered loss had occurred. In September 2011, the case was stayed due to HomeWise’s insolvency. In June 2012, after FIGA was activated, the Reyn-oldses amended their complaint to substitute FIGA for HomeWise. The amended complaint did not mention appraisal.

In August 2012, FIGA filed its answer. FIGA admitted that it agreed to pay for the Reynoldses’ “covered claim for sinkhole loss” within certain limits. On October 11, 2012, the Reynoldses filed a motion to compel mediation in which they noted that “the parties originally disagreed as to whether the [Reynoldses’] home has been damaged by sinkhole activity. However, FIGA has apparently conditionally accepted liability for the loss, but has put unreasonable conditions on payment of benefits.” That same day, the Reynoldses also moved to compel responses to previously-filed interrogatories. In January 2013, the Reynoldses moved for partial summary judgment as to FIGA’s liability, and a week later they noticed the case for trial. In July, FIGA again conceded that the Reynoldses had “a covered claim and there is no dispute over whether sinkhole activity exists at the subject property.” FIGA only contested the amount due. In September, the trial court granted the Reynoldses’ motion for partial summary judgment. On October 7, the Reynoldses demanded appraisal in a letter to FIGA. Shortly thereafter, the Reynoldses filed a motion to compel appraisal, which the trial court granted. FIGA appeals that order.

The issue of waiver of appraisal rights is reviewed de novo when the facts are undisputed. Fla. Ins. Guar. Ass’n v. Branco, 148 So.3d 488, 493-94, 2014 WL 4648208 (Fla. 5th DCA Sept. 19, 2014). A waiver of the right to seek appraisal occurs when the party seeking appraisal actively participates in a lawsuit or engages in conduct inconsistent with the right to appraisal. See id. at 493 (citing Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005)). In Branco, we explained that

the question of waiver of appraisal is not solely about the length of time the case is pending or the number of filings the appraisal-seeking party made. Instead, the primary focus is whether [the insureds] acted inconsistently with their appraisal rights. Saldukas, 896 So.2d at 711; see Am. Capital Assur. Carp. v. Courtney Meadows Apartment, L.L.P., 36 So.3d 704, 707 (Fla. 1st DCA 2010) (finding party did not waive right to appraisal as party had not acted inconsistently with right from time of demand).
Unlike arbitration, “[ajppraisal exists for a limited purpose — the determination of ‘the amount of the loss.’ ” Citizens Prop. Ins. Carp. v. Mango Hill # 6 Condo. Ass’n, 117 So.3d 1226, 1230 (Fla. 3d DCA 2013). Until the insurer has a reasonable opportunity to investigate and adjust the claim, there is no “disagreement” (for purposes of appraisal) regarding the value of the property or the amount of loss to be appraised. Citizens Prop. Ins. Corp. v. Galería Villas Condo. Ass’n, 48 So.3d 188, 191 (Fla. 3d DCA 2010) (reversing prematurely-ordered appraisal). An insurer that denies coverage does not need to seek appraisal before litigation because “[i]t would make no sense to say that [the insurer] was required to request ... appraisal on a loss it had already refused to pay.” Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 817 (Fla. 3d DCA 2000); see Chimerakis v. Sentry Ins. Mut. Co., 804 So.2d 476, 480 (Fla. 3d DCA 2001) (holding “an action to compel appraisal does not accrue until the policy conditions precedent have been performed or waived, and appraisal is then refused”). Absent contract language to the contrary, we see no reason why the insured should not have the same flexibility in cases when coverage is denied. But see Cypress Pointe at Lake Orlando Condo. Ass’n v. Mt. Hawley Ins. Co., No. 6:10-cv-1459-Orl-36TBS, 2012 WL 6138993, at *2 (M.D.Fla. Nov. 19, 2012) (finding insured acted inconsistently with appraisal right by pursuing litigation for two years, though insurer consistently denied coverage).

Id. at 493-94.

Here, FIGA acknowledged that the Reynoldses sustained a covered loss in August 2012. Appraisal became appropriate at that time. Id. at 494 (explaining appraisal not appropriate until coverage conceded or determined by court). However, the Reynoldses waited a little over a year after FIGA’s admission of coverage before demanding appraisal. During that time, the Reynoldses moved to compel responses to discovery requests, sought and obtained a partial summary judgment, and noticed the case for trial. The long delay, combined with the significant litigation activities pursued by the Reynoldses after coverage was conceded, distinguishes this case from Branco. Taken together, these undisputed facts demonstrate that the Reynoldses acted inconsistently with, and waived, their rights to appraisal. See Morrell v. Wayne Frier Manufactured Home Ctr., 834 So.2d 395, 395-98 (Fla. 5th DCA 2003) (finding waiver where party litigated for eleven months with various motions and pleadings); ARI Mut. Ins. Co. v. Hogen, 734 So.2d 574, 576 (Fla. 3d DCA 1999) (finding waiver when party engaged in “aggressive” litigation for nine months); Owens & Minor Med., Inc. v. Innovative Mktg. & Distribution Servs., Inc., 711 So.2d 176, 176 (Fla. 4th DCA 1998) (finding waiver when party litigated for thirteen months); Gray Mart, Inc. v. Fireman’s Fund Ins. Co., 703 So.2d 1170, 1171-73 (Fla. 3d DCA 1997) (finding waiver following fourteen months of litigation and demand for appraisal one month before trial).

For these reasons, we conclude the trial court’s finding that the Reynoldses did not waive their rights to appraisal was error, and reverse.

REVERSED and REMANDED.

PALMER and EVANDER, JJ., concur.

      . "FIGA is a public, nonprofit corporation created by statute to provide a mechanism for payment of covered claims under certain classes of insurance policies issued by insurers which have become insolvent." Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass’n, 67 So.3d 187, 189 (Fla.2011); see §§ 631.51, 631.55, Fla. Stat. (2011).

      . Because this issue is dispositive, we do not address FIGA’s other arguments.

      . The Reynoldses urge us to hold that the coverage dispute was not resolved until the trial court entered partial summary judgment in September 2013. However, the Reyn-oldses conceded below that FIGA had already accepted liability for the loss in October 2012. Therefore, we reject the Reynoldses' position.


text:
    Oberist SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-120.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.
    Oberist L. Saunders, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Oberist Saunders (defendant) appeals the trial court’s order summarily denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. For reasons set forth below, grounds I, II, and III are remanded to the trial court to either attach record documents that will conclusively refute the grounds or to conduct an evidentiary hearing. We affirm as to ground IV.

The defendant was charged with trafficking in oxycodone (Count I), unlawful use of a two-way communication device (Count II), possession of a controlled substance (Count III), possession of less than 20 grams of cannabis (Count IV), and possession of drug paraphernalia (Count V). He entered a plea of no contest to Count I and adjudication was withheld on Counts II through V. His plea was an open plea and included a substantial assistance provision. Thereafter, the defendant was unable to fulfill his agreement to assist the State and he was arrested on new charges. He then entered a new plea of no contest and was sentenced to a mandatory minimum of three years in the Department of Corrections. The defendant did not file a direct appeal, but he filed a motion seeking post-conviction relief, raising four grounds. The trial court summarily denied all claims, but the court did not attach any documents to its denial order. This appeal followed.

“[T]o prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that his counsel’s performance was deficient-i.e., unreasonable under prevailing professional norms; and (2) that the deficiency prejudiced the defense-i.e., that there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Jones v. State, 998 So.2d 573, 582 (Fla.2008). See also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“A reasonable probability is a probability sufficient to undermine confidence in the outcome”). A defendant is entitled to receive an eviden-tiary hearing on a motion for post-conviction relief unless (1) the motion, records, and files in the case conclusively show that the defendant is not entitled to relief, or (2) the motion for a particular claim is invalid on its face. See Phillips v. State, 894 So.2d 28 (Fla.2004).

In ground I of his motion, the defendant argued that his trial counsel was ineffective for failing to advise him of, and to pursue, all available defenses. The State properly concedes error on this ground, since no documents were attached to the trial court’s order that conclusively showed that the defendant was not entitled to receive post-conviction relief on this ground. See Hill v. State, 611 So.2d 115 (Fla. 5th DCA 1993) (explaining that, in summarily denying a rule 3.850 motion, the trial court must attach portions of the record that refute the defendant’s claim).

In ground II, the defendant argued that trial counsel was ineffective for failing to inquire into his competency and to inform the trial court about his mental health issues. Once again the State properly concedes error since no documents were attached to the trial court’s order that conclusively showed that the defendant was not entitled to receive relief. Hill.

In ground III, the defendant asserted that his trial counsel was ineffective for permitting him to enter an involuntary plea due to his mental illness and use of medication. The record does not include a transcript of the plea colloquy from which this court can determine whether the defendant voluntarily entered into his plea. Nor can it be established from the record whether the defendant was taking medications at the time of his plea and whether those medications interfered with his ability to enter his plea knowingly, intelligently, and voluntarily. Accordingly, the trial court also erred in summarily rejecting this ground. See Young v. State, 789 So.2d 1160 (Fla. 5th DCA 2001)(reversing and remanding for further proceedings where a claim was not conclusively refuted by the record and the record did not provide a transcript of the plea hearing).

In ground IV, the defendant alleged that he was entitled to receive post-conviction relief based on newly discovered evidence. Specifically, he alleged that he was diagnosed with hypothyroidism. However, he did not claim that he had this disease or experienced symptoms from this condition during the commission of the offense, at the time of his plea, or at the time of sentencing. Accordingly, he failed to show how this alleged newly discovered evidence would have changed the outcome of the proceedings in this case.

We affirm as to ground IV, and reverse and remand as to grounds I, II and III. On remand, the trial court must either attach records that will conclusively refute these grounds or conduct an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, LAWSON and WALLIS, JJ., concur.


author: COHEN, J.

text:
    Gustav KAKUK, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-504.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Appellant, Gustav Kakuk, is currently committed under the Involuntary Civil Commitment of Sexually Violent Predators Act (“the Act”). He appeals the order denying his petition for release from the Florida Civil Commitment Center. The issue presented is whether the trial court erred by weighing the evidence presented at Kakuk’s limited probable cause hearing.

After being convicted of several predicate offenses, Kakuk was civilly committed under the Act in 2004. Kakuk petitioned for release several times; most recently, in January 2014. As evidence of his change in condition, Kakuk presented a report written by Dr. Douglas Shadle, a psychiatrist.

In Dr. Shadle’s report, he opines that Kakuk’s condition has so changed in the nine and one-half years since commitment that Kakuk is safe to be at large. Although Kakuk received prior diagnoses of frotteuristic disorder, exhibitionist disorder, and unspecified personality and para-phillic disorders, Dr. Shadle believes that Kakuk does not currently meet the criteria for psychopathy. The report concludes that through Kakuk’s “treatment participation to date, his age and deteriorating health, his verbalized change in mental condition, and his observable behavior,” his “condition has so changed that it is safe for [him] to be at large” and that he “will not engage in acts of sexual violence if discharged.”

Nevertheless, the trial court denied Ka-kuk a nonjury trial on the issue of his continued dangerousness. The court found that Kakuk did not meet his burden of proving probable cause because Dr. Shadle’s report was “contradictory in numerous respects.”

A commitment term under the Act lasts until the detainee’s “‘mental abnormality or personality disorder has so changed that it is safe’ for him to be at large.” Chukes v. State, 90 So.3d 950, 952 (Fla. 5th DCA 2012) (quoting Chukes v. State, 840 So.2d 255 (Fla. 5th DCA 2003)). Upon petition for release from commitment, the Act affords the detainee a limited hearing to establish probable cause that a change in condition renders him safe to be released. § 394.918(3), Fla. Stat. (2013). The burden is on the petitioner to prove probable cause. See Westerheide v. State, 888 So.2d 702, 705 (Fla. 5th DCA 2004). If the petitioner establishes probable cause, he is entitled to a nonjury trial to determine his . fitness to be released. § 394.918(3), Fla. Stat.

Under the statutory scheme that was applicable at the time of Kakuk’s hearing, the court is not permitted to make any credibility determinations or weigh the petitioner’s evidence against the State’s. See Holder v. State, 123 So.3d 136, 139 (Fla. 5th DCA 2013) (citations omitted). Instead, the trial court is tasked with determining “whether there is sufficient evidence to cause a person of ordinary prudence to conscientiously entertain a reasonable belief that the committed person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.” Chukes, 90 So.3d at 954 (citing State v. Robbins, 785 So.2d 620, 621 (Fla. 5th DCA 2001)). In making this determination, the court may look to the legal sufficiency of the evidence. See Spivey v. State, 12 So.Sd 880, 888 (Fla. 5th DCA 2009) (concluding that expert’s report was legally insufficient because it did not address the offenses for which the petitioner had most recently been imprisoned). But if the evidence is sufficient to establish probable cause, the court must set the issue for trial. § 394.918(3), Fla. Stat. In determining the sufficiency of the evidence, the trial court must accept the petitioner’s evidence as true. See Chukes, 90 So.3d at 954 (citing Westerheide, 888 So.2d at 706).

Reviewing the trial court’s decision de novo, see Holder, 123 So.3d at 138, we believe that Dr. Shadle’s report was sufficient to establish probable cause. The report contained evidence that this Court has previously found amounted to probable cause. See Spivey v. State, 100 So.3d 1254, 1255-56 (Fla. 5th DCA 2012). At trial, the court is free to accept or reject the testimony of Kakuk’s expert. At this stage, accepting the report as true, there was sufficient evidence to establish probable cause that Kakuk is no longer a threat to society, which, under the applicable statutory scheme, entitles him to a nonjury trial.

REVERSED and REMANDED.

EVANDER and BERGER, JJ., concur.

      . §§ 394.910-.932, Fla. Stat. (2013).

      . We realize that the Act was recently amended in a way that renders this opinion inapplicable to future cases. The Legislature amended the Act to allow the State to present evidence at the probable cause hearing and to allow the court to weigh all of the evidence presented. See Ch. 2014-2, Laws of Fla. (codified at § 394.918(3), Fla. Stat.). The amendment is silent as to retroactive applicability. Accordingly, because the amendment did not take effect until after the probable cause hearing in this case, the State did not present conflicting evidence; instead, it argued that Kakuk’s evidence was inadequate.


text:
    Marquis Cortez HILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-588.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.
    Marquis C. Hilson, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Marquis Cortez Hilson (defendant) appeals the trial court’s order summarily denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. He raised seven claims in his motion. For the reasons set forth below, we reverse as to claims 1, 2, and 5. We affirm as to all other claims.

The defendant was found guilty of first-degree premeditated murder and sentenced to a term of life imprisonment. In claims 1, 2, and 5, the defendant alleged that his trial counsel was ineffective for advising him not to testify, for failing to prepare him to testify, for failing to present his testimony, and for failing to properly present a defense of self-defense. The State properly concedes that claims 1, 2, and 5 should be remanded to the trial court for an evidentiary hearing, since the defendant’s motion sufficiently alleges facts to establish a prima facie case under the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to all other claims, we affirm.

AFFIRMED in part; REVERSED in part; REMANDED.

TORPY, C.J., PALMER and COHEN, JJ., concur.


text:
    Rigoberto GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3613.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.
    Rigoberto Garcia, Bonifay, pro se.
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm this Anders appeal but remand to correct two scrivener’s errors in the judgment. First, the judgment should reflect, consistent with the trial court’s oral pronouncement, that Garcia was sentenced as a prison releasee reoffender only as to Count I. Second, the judgment incorrectly indicates that Garcia entered a no contest plea when, in fact, he was convicted after a jury trial.

AFFIRMED and REMANDED.

ORFINGER, EVANDER, and LAMBERT, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Bryan Daniel DURFEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4325.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bryan Daniel Durfey, Wewahitehka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Bryan Daniel Durfey, appeals his convictions for manslaughter and second-degree arson after a jury trial. We affirm the convictions and sentences; however, we remand to correct two scrivener’s errors in the judgment. The statutory citation for the manslaughter conviction should be section 782.07(1), Florida Statutes (2011), and the statutory citation for the second-degree arson conviction should be section 806.01(2), Florida Statutes (2011).

AFFIRMED and REMANDED, with instructions.

PALMER, EVANDER and LAMBERT, JJ., concur.


text:
    Lawrence Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-498.
    District Court of Appeal of Florida, Fifth District.
    Oct. 17, 2014.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the order denying the motion to withdraw plea. Our decision is without prejudice to Lawrence Lee Williams filing a timely and legally sufficient motion pursuant to Florida Rule of Criminal Procedure 8.850. Any claims raised in that motion will not be deemed successive or procedurally barred. See Harris v. State, 818 So.2d 567, 569 (Fla. 2d DCA 2002).

AFFIRMED.

PALMER, ORFINGER and EVANDER, JJ., concur.


text:
    C.S.C-D., Mother and M.C., Father, etc., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 5D14-1985, 5D14-2402.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 2014.
    Philip A. Haas, of Haas Law, P.S., Seattle and Lori D. Loftis and Jeffrey D. Deen, of Office of Criminal Conflict and Civil Regional Counsel, for Appellant.
    Ward L. Metzger, of Children’s Legal Services, Jacksonville and Wendie M. Cooper, of Guardian ad Litem Program, Sanford, for Appellee.
   PER CURIAM.

AFFIRMED. See A.M. v. Dep’t of Children & Families, 118 So.3d 998, 999 (Fla. 1st DCA 2013) (“[I]f statutory deficiencies existed in the trial court’s order, Appellant needed to preserve these issues ‘by a motion for rehearing or ... [by otherwise bringing] the claimed deficiency to the attention of the trial court at a point when it could have been corrected.’ ” (quoting D.T. v. Fla. Dep’t of Children & Families, 54 So.3d 632, 633 (Fla. 1st DCA 2011))); R.B. v. Dep’t Children & Families, 997 So.2d 1216, 1218 (Fla. 5th DCA 2008) (citing Mathieu v. Mathieu, 877 So.2d 740, 741 (Fla. 5th DCA 2004)).

PALMER, ORFINGER and LAWSON, JJ., concur.