author: ALTENBERND, Judge.

text:
    Carlos LOPEZ, Appellant, v. STATE of Florida, Appellee. Manuel Pizaro-Maysonet, Appellant, v. State of Florida, Appellee. Carlos Colorado, Appellant, v. State of Florida, Appellee. Jason Burgos, Appellant, v. State of Florida, Appellee.
    Nos. 2D11-3091, 2D11-3095, 2D11-3153, 2D11-3412.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2014.

      Joseph J. Regístrate, Tampa, for Appellant Carlos Lopez.
    Edward M. Abel, Spring Hill, for Appellant Manuel Pizaro-Maysonet.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant Carlos Colorado.
    Jorge Leon Chalela of Jorge Leon Chá-lela, P.A., Tampa, for Appellant Jason Burgos.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Seho-maker, Assistant Attorney General, Tampa, for Appellee in case numbers 2D11-3091, 2D11-3153, and 2D11-3412.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee in case number 2D11-3095.
   ALTENBERND, Judge.

Carlos Lopez, Manuel Pizaro-Maysonet, Carlos Colorado, and Jason Burgos appeal their judgments and sentences arising from their involvement in a heroin importation and distribution network that connected Puerto Rico and Florida. They were tried together. Although their appeals were filed separately, we have consolidated the appeals for purposes of this opinion. We affirm Mr. Colorado’s judgment and sentences. However, a double jeopardy issue affects the judgments for the other appellants. We thus reverse their judgments, in part, and remand with instructions. We discuss one of the issues on which we affirm.

I. THE COURTROOM USE OF WRITTEN TRANSLATIONS OF INTERCEPTED SPANISH LANGUAGE TELEPHONE CALLS CREATED BY A TEAM OF POLICE OFFICERS DURING A CRIMINAL INVESTIGATION

A. The Facts and Proceedings in the Trial Court

Through the use of confidential informants and wiretaps, the Tampa Police infiltrated a RICO enterprise that operated over a period of months in 2009. The enterprise was importing heroin from Puerto Rico into Florida. The enterprise included suppliers in Puerto Rico, transporters who delivered the drugs to Florida, and persons involved in the sale and distribution of the drugs in Florida.

When the information was initially filed, there were nineteen defendants. Several of those defendants negotiated pleas under which they testified at the defendants’ trial. In addition to this evidence, the State relied on recorded telephone calls among the members of the enterprise. During the course of the investigation, the police recorded over 12,000 telephone conversations, but only about 100 of the recorded telephone calls were introduced into evidence.

The proper method to introduce these recorded telephone calls was an issue in this case from its inception. The participants in the telephone calls spoke primarily in a Puerto Rican dialect of Spanish. The Tampa Police Department had a team of officers in a location where all of the calls were intercepted. These officers were fluent in Spanish. For example, the lead officer had been raised until middle school in Puerto Rico. A second officer who testified at trial also had been raised by a family from Puerto Rico, and the members of that family had spoken Spanish in the home. The officers also had considerable experience with drug sales and trafficking. They worked collectively, listening repeatedly to the recordings, to learn the identity of the speakers and create translations.

Long before the trial in this case, the State produced the Spanish recordings and a document that included Spanish transcripts of the critical calls side-by-side with the officers’ translations of the calls into English. The transcripts did not always identify the speaker, contained indications that short sections were sometimes inaudible, and used occasional Spanish words that apparently were not subject to translation.

The court held several hearings on the question of how to use these recordings and transcripts at trial. The defendants argued that no translation could be introduced unless a translator who was an independent official translator was sworn pursuant to section 90.606, Florida Statutes (2008), and testified that the transcript was a true interpretation of the telephone calls. The State disagreed. It had hired a Spanish language interpreter and court reporter to translate a few of the more difficult calls but had concluded that an independent translation of the extensive recorded conversations among unidentified speakers would be cost prohibitive.

Ultimately, the trial court allowed the State to introduce into evidence the recorded telephone calls in Spanish, which calls were preserved for the record on a digital disc. They were introduced after the lead officer provided the necessary predicate evidence. These calls were played to the jury during the testimony of various witnesses. When played, each call was identified in a manner that allows for a review of the recorded call on the digital copy. The recorded calls were not allowed into the jury room. Instead, the jury was told that it could ask for a call to be replayed during deliberations, which it did for three calls.

The Spanish-to-English transcripts of these calls were not introduced into evidence. The lead officer presented testimony concerning their creation and confirmed under oath that he personally had listened to each recording and that the Spanish transcriptions and English transcripts were, in his opinion, accurate. A second officer provided similar testimony. Thereafter, the jury was allowed to refer to the transcripts as the Spanish calls were played in the courtroom. The two officers referred to the transcripts in their testimony, essentially to refresh their recollectibn of the recordings and translations. Neither officer was sworn as a translator. The court did not inform the jury that these translations were “official” in any sense.

Prior to the Spanish recordings being played for the jury, the jury was given an instruction for disputed translations that is comparable to Florida Standard Jury Instruction (Criminal) 2.11. The following instruction was read to the jury:

Members of the jury, you are about to listen to tape recordings that were made in Spanish. Each of you in a moment will be given a transcript of that recording. The transcripts that are going to be provided to you by the State — I’m sorry, they are being provided to you by the State so you can consider the content of the recordings, and that’s because that — what you are going to hear is in Spanish, and the State will proceed accordingly.
The transcript that you will receive is an English translation of the foreign language, that is, a Spanish tape recording. Now, whether a transcript is an accurate translation in whole or in part is for you to decide.
In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you as regarding how and by whom that transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation, and the reasonableness of the translation in light of all the evidence in the case.
You should not rely in any way on any knowledge you may have of the Spanish language on the recording. Your consideration of the transcripts should be based on the evidence introduced at trial. And so that you will know, as you are making your notes, that these transcripts are being given to you as an aid. They will not be going back to you with the evidence when you go back to deliberate.

During the trial, the State presented extensive testimony from other members of the enterprise who had already pleaded guilty. One was an older man who had been addicted to heroin at the time of these events. He testified without the aid of an interpreter. He identified his own voice and those of members of the enterprise on recordings that were played during his testimony. The recordings were conversations, according to the witness, discussing the purchase of heroin. Some of these recorded conversations were in English, including calls with Carlos Lopez. The court reporter recorded and transcribed the calls that were in English.

A second witness, who also testified without an interpreter, was primarily a seller of heroin in Florida. He described the sales process. Several' recordings were played during his testimony. For each recording, he would identify himself and others on the calls and explain the nature of the conversations. He also identified a photograph of Carlos Colorado in a car with him at a convenience store, which he testified was a photograph of a delivery of heroin. He identified' his own voice and that of Carlos Colorado on a recorded call in English in which Carlos Colorado was trying to buy heroin.

A third witness, who testified through an interpreter, was -primarily a seller of heroin in Florida. He too testified to the process of obtaining, bagging, and selling the heroin. He identified his voice and that of others on recorded telephone calls, calls that he described as related to the sale of heroin. He was also allowed to identify other members of the enterprise on recorded calls in which he was not a participant. He did not translate those calls, but he did identify certain code words that were used on the calls as words relating to the sale of heroin.

Finally, two women testified that they were involved in the transportation of heroin from Puerto Rico to Florida. On one or more occasions, they flew this route with heroin inserted into their body cavities in sealed containers inside condoms. They testified regarding the persons involved on both ends of the transportation. The two women had been arrested in Florida- while transporting the heroin as passengers in a car driven by Carlos Lopez.

Following this testimony, the State presented the lead investigating officer. During. his testimony, the State played many recordings. The officer testified to the content of the recordings, relying on transcripts. As explained earlier, the jury was allowed to view the transcripts during his testimony, but the transcripts were not introduced into evidence and, thus, were not exhibits that could be used by the jury during deliberations. The officer testified concerning code words in the recorded telephone calls that were used in lieu of more incriminating terms, consistent with the earlier testimony from the other witnesses.

It is important to note that the defendants had ample time and opportunity to review the translations. Although they questioned whether the speakers were always properly identified, no defendant made any serious argument that the translations were inaccurate. One defendant admitted prior to trial that he had no objection to the quality of the translations. The defendants all had the right to cross-examine the officers as to the accuracy of any portion of the translations, but they limited their cross-examination primarily to issues of potential bias. Several of the defendants did not cross-examine the lead officer. They had the right to call a witness who spoke fluent Spanish to challenge any portion of the translations, but they did not. On a number of occasions during the case, they appeared to rely on the accuracy of the translations to prove some point favorable to a defendant.

B.. The Failure of the Court Reporter to Record and Transcribe the Spanish Telephone Calls

At least one of the defendants argues that we must reverse because the court reporter did not record and transcribe the Spanish language telephone calls that were played during the trial. When this case initially was submitted to this court, the appellate record did not contain the digital copies of the recorded telephone calls.

Thus, the issues submitted to this court concerned conversations played to the jury that were unavailable to this court — even though none of the judges reviewing this case would be competent to translate those calls.

This court ordered the record to be supplemented with a copy of the digital recordings. We did this not to confirm the accuracy of the transcriptions and translations, but to confirm that the proceedings in the trial court, a court of record, were in fact reviewable. They are.

The court réporter obviously did not record these telephone calls as they were played to the jury because the reporter was not trained or competent to do so in a language other than the official language of the court. We conclude that the holding in Greene v. State, 795 So.2d 94, 98 (Fla. 4th DCA 2000), requiring a court reporter to make a good faith effort to record and transcribe recorded testimony, is not applicable to foreign language recordings. The record of proceedings must be preserved to the extent feasible, but the court reporter simply cannot be the method for making the record in this situation.

Rather like a photograph or other exhibit given to a jury during a trial, the court reporter could only report with accuracy the events taking place in the courtroom. The transcription in this case identifies when each recording is played, and the attorney presenting the evidence identifies the recording by its date, time, and specific recording number. This seems to this court to be an adequate method for a court of record to preserve its proceedings. In this case, the trial was conducted by a very experienced trial court judge, and we comment on this procedure primarily to encourage other judges to be as meticulous in handling this problem as was the judge in this case. The omission of the Spanish conversations from the court reporter’s transcript is not an error in this case.

C. The Procedures Involved in the Use of the Spanishr-to-English Transcripts

Before the end of the trial, the trial judge began commenting on the record to the attorneys that there must be a better way to handle the issue of how to use the transcripts in this case. Because the defendants had not stipulated to the document or offered a competing document— and we do not suggest that they were obligated to do so — the process of playing and using these recordings resulted in a constant supply of objections from the defendants. We suspect that the trial court may be correct that a better method exists, but we are not prepared to propose such a method. We only conclude that the method used was not an abuse of discretion by the trial court to the extent that the issue involves discretion and that it was not an error of law in this case.

The procedural safeguards used by the trial court in this case are somewhat similar to those used in Fernandez v. State, 21 So.3d 155,156-57 (Fla. 4th DCA 2009). In this case the court did not place the transcripts into evidence, and the jury was allowed to evaluate them only in the courtroom. Outside the presence of the jury, the judge required the lead officer to testify that the documents represented accurate translations. The judge also considered extensive evidence as to the lead officer’s experience and competence in Spanish, as well as the team method by which the translations were created. The trial judge essentially made a gatekeeper decision that the translations were of sufficient quality and that their accuracy should be a jury question under the new instruction. Thereafter, the two key participants in the creation of the transcripts were presented for full confrontation in front of the jury, even if the defendants conducted a limited confrontation. The recorded telephone calls were often presented to the jury by witnesses who were parties to those conversations. The officers were not sworn as translators in front of the jury, which only would have bolstered their credibility. Under the recently created standard jury instruction, see Fla. Std. Jury Instr. (Crim.) 2.11, the jury was told not to use their own language skills and to assess from the testimony the skills of the officers who created the documents.

Although the procedural safeguards used here were somewhat similar to those used in Fernandez, it is important to explain that the witness in Fernandez was not one of the police officers investigating the case. In Ortega v. State, 721 So.2d 350, 351 (Fla. 2d DCA 1998), this court held that a police officer should not be allowed to translate a defendant’s statements. In that case, the officer apparently provided a summarized translation on a videotape as the defendant was providing his statement to the police. Id. at 350-51. The videotape was played for the jury as the officer was allowed to provide a more detailed translation at trial. Id. at 351. Although Ortega has not been followed in at least one other state, we continue to believe that allowing an officer who is so directly involved in an arrest or interrogation to provide a quick translation on such a videotape or to be a translator at trial is bad practice and unnecessary. In a case like Ortega, the State could readily obtain a translation of the videotape of the one known witness from a highly qualified translator, who could be sworn as such in court. In this case, even limited to the 100 most relevant recordings, the process of obtaining a translation of coded drug-related telephone calls involving unidentified speakers would be very difficult. Under the current jury instruction, we conclude that a trial judge has the discretion, with a proper predicate, to make translations like the ones in this ease an issue of disputed translation for resolution by the jury.

The final question presented by the defendants as to this issue is whether the State can prove a prima facie case in this context without an “official” translation. Candidly, we are not certain that anything in the law requires an “official” translation. Indeed, in a criminal case, providing such a translation would put an imprimatur upon the document that could only be harmful to the defendant.

The concept of an official translation emanates from section 90.606, which governs the use of interpreters and translators in courtrooms. Interpreters assist witnesses and parties in understanding proceedings that take place in the courtroom. The services of one or more interpreters were employed in this case to assist at least one defendant and some of the witnesses. A translator can be used to translate foreign language evidence including contracts and other documents that will be submitted to the jury as evidence.

Admittedly, it might be feasible to employ a translator to deal with recorded conversations of this sort. But the expertise to translate such telephone recordings obtained by wiretap is very different from the process of translating a legal contract, a letter, or even the testimony of a known witness in a foreign-language legal proceeding.

We conclude that, subject to the safeguards discussed in this opinion, the State is not compelled to obtain translations by an independent translator if its own agents can present the predicate evidence necessary to satisfy the judge that the accuracy of the translations is a matter for the jury to decide.

II. DOUBLE JEOPARDY

Consistent with our opinion in Mathes v. State, 106 So.Sd 73 (Fla. 2d DCA 2013), we conclude that three of the four defendants’ rights against double jeopardy were violated when they were convicted of multiple conspiracy offenses stemming from a single conspiracy with multiple objectives. See Negron Gil de Rubio v. State, 987 So.2d 217, 219 (Fla. 2d DCA 2008). The State concedes this point on appeal.

A. Mr. Lopez

Mr. Lopez was convicted of (1) racketeering, (2) trafficking in illegal drugs, (3) conspiracy to traffic in heroin (4 to 14 grams), and (4) conspiracy to traffic in heroin (28 grams to 30 kilograms). He was sentenced to concurrent terms of thirty years’ imprisonment for each offense. The higher conspiracy-to-traffic-in-heroin charge drew a twenty-five-year minimum mandatory sentence. The lower conspiracy-to-traffic-in-heroin charge drew a three-year minimum mandatory sentence. We reverse only Mr. Lopez’s judgment and sentence for conspiracy to traffic in heroin (4 to 14 grams), which resulted in the three-year minimum mandatory sentence.

B. Mr. Pizaro-Maysonet

Mr. Pizaro-Maysonet was convicted of (1) racketeering, (2) conspiracy to commit racketeering, and (3) conspiracy to deliver heroin. He was sentenced to concurrent terms of ten years’ imprisonment for the offenses of racketeering and conspiracy to commit racketeering. He received a concurrent sixty-month prison sentence for the conspiracy to commit delivery of heroin offense. We reverse Mr. Pizaro-May-sonet’s judgment and sentence for conspiracy to deliver heroin.

C.Mr. Burgos ■

Mr. Burgos was convicted of (1) racketeering, (2) conspiracy to commit racketeering, and (3) two counts of conspiracy to traffic in heroin. He was sentenced to thirty years’ imprisonment for each conviction to run concurrently with one another. We reverse both of Mr. Burgos’s judgments and sentences for conspiracy to traffic in heroin.

On remand, the trial court shall strike the charges that are barred by double jeopardy. All of the sentences for these three defendants appear to have been imposed using a Criminal Punishment Code scoresheet. In each of these cases, the dismissal will alter the scoresheet that was used when sentencing for the remaining judgments. .Especially in Mr. Burgos’s case, the reduction in the scoresheet should be substantial. Accordingly, on remand the trial court shall arrange for the preparation of new scoresheets and conduct a hearing to determine whether revised sentences are appropriate for the judgments that we affirm.

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

NORTHCUTT and LaROSE, JJ., Concur.

      . There is no suggestion in this record that the jury was presented with portions of these recordings as compared to the entire telephone call identified on the digital copy. In a case where a jury received only an excerpt from a foreign language recording, additional steps may be necessary to preserve the record accurately.

      . See, e.g., People v. Munoz-Casteneda, 300 P.3d 944, 949-50 (Colo.App.2012).


source: Caselaw Access Project

author: CASE, JAMES R., Associate Senior Judge. LaROSE and CRENSHAW, JJ., Concur.

license: Public Domain

text:
    Shawn A. TYSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2296.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2014.
    Rehearing Denied Jan. 6, 2015.
    Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   CASE, JAMES R., Associate Senior Judge.

Shawn A. Tyson appeals his judgments and sentences for two counts of first-degree murder. We affirm his judgments without discussion. However, as the State concedes, we must reverse his sentences of life in prison without the possibility of parole pursuant to the holding in Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because Mr. Tyson was sixteen years old when the crimes were committed. In Miller, 132 S.Ct. at 2460-61, the Supreme Court held that a sentencing scheme requiring a mandatory sentence of life in prison without the possibility of parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on cruel and unusual punishment. We must therefore reverse Mr. Tyson’s sentence and remand his case for a new sentencing hearing in compliance with Rodriguez-Giudicelli v. State, 143 So.3d 947 (Fla. 2d DCA 2014). As this court did in Rodriguez-Giudicelli, we certify the same question of great public importance:

WHETHER THE SUPREME COURT’S DECISION IN MILLER V. ALABAMA, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), WHICH INVALIDATED SECTION 775.082(1)’S MANDATORY IMPOSITION OF LIFE WITHOUT PAROLE SENTENCES FOR JUVENILES CONVICTED OF FIRST-DEGREE MURDER, OPERATES TO REVIVE THE PRIOR SENTENCE OF LIFE WITH PAROLE ELIGIBILITY AFTER 25 YEARS PREVIOUSLY CONTAINED IN THAT STATUTE?

39 Fla. L. Weekly at D1089,143 So.3d 947.

Judgments affirmed, sentences reversed, and question certified.

LaROSE and CRENSHAW, JJ., Concur.


author: COHEN, J.

text:
    Julio Contreras TARELO, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2380.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2014.

      James'S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Julio Tárelo appeals the imposition of consecutive sentences under the prison re-leasee reoffender (PRR) statute, section 775.082, Florida Statutes (2013). The only issue on appeal is whether such a sentence for offenses committed during a single criminal episode is lawful. In Young v. State, 37 So.3d 389 (Fla. 5th DCA 2010), this Court answered this question in the affirmative. See Young, 37 So.3d 389 (citing Reeves v. State, 957 So.2d 625 (Fla.2007)). Recently, in Cotto v. State, 139 So.3d 283 (Fla.2014), the supreme court, in another context, discussed the applicability of Hale v. State, 630 So.2d 521 (Fla.1993), the case upon which Tárelo relies, to PRR sentences. In finding that Hale did not prohibit a habitual offender sentence from being imposed consecutively to a PRR sentence, the court stated: “[T]his Court has never applied Hale to the PRR statute.” Cotto, 139 So.3d at 289.

Our position on this issue is in conflict with our sister courts. See Sanchez v. State, 12 So.3d 1288 (Fla. 1st DCA 2009); Boyd v. State, 988 So.2d 1242 (Fla. 2d DCA 2008), abrogated on other grounds as recognized in Pifer v. State, 59 So.3d 225, 228 (Fla. 2d DCA 2011); Gonzalez v. State, 876 So.2d 658 (Fla. 3d DCA 2004). This issue is currently before the supreme court in State v. Mosley, case no. SC13-704, 2014 WL 305705 (Fla. Jan. 14, 2014).

Pending review by the supreme court, we affirm based on Young. We certify conflict.

AFFIRMED; CONFLICT CERTIFIED.

TORPY, C.J., and SAWAYA, J., concur.

      . The Fourth District has also found these sentences lawful. See Claycomb v. State, 142 So.3d 916 (Fla. 4th DCA 2014). In Claycomb, the Fourth District appears to have receded from its earlier opinions. See, e.g., Pledger v. State, 944 So.2d 1135 (Fla. 4th DCA 2006).


author: SILBERMAN, Judge.

text:
    Madeline BETANCOURT and Nivia Malgarejo, Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellee.
    No. 2D13-265.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2014.
    Rehearing Denied Dec. 8, 2014.

      Thomas W. Thompson and A. Lee Smith of Thompson Trial Group, P.A., Tampa, for Appellants.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
   SILBERMAN, Judge.

Madeline Betancourt and Nivia Malga-rejo (the Homeowners) appeal a final summary judgment in favor of Florida Insurance Guaranty Association (FIGA). The trial court determined that the applicable statutes of limitation barred the Homeowners’ action against FIGA for breach of contract and declaratory judgment regarding a sinkhole loss. Because the action is time barred under sections 95.11(5)(d) and 631.68, Florida Statutes (2009), we affirm the final summary judgment.

The Homeowners sustained a sinkhole loss on December 15, 2009. The insurer, Magnolia Insurance Company, was ordered liquidated on April 30, 2010. The liquidation order provided that the deadline for filing claims against FIGA was May 2, 2011. The Homeowners timely filed a notice of claim with FIGA on January 13, 2011, and a proof of claim on January 31, 2011.

FIGA made a payment to the Homeowners on May 4, 2012. The Homeowners were not satisfied with the amount and filed suit against FIGA on May 22, 2012. FIGA raised the statutes of limitation as one of its affirmative defenses. The Homeowners filed a reply with a general denial to the affirmative defenses but did not assert that the parties had agreed to any extension of time.

The trial court properly determined on FIGA’s motion for summary judgment that the Homeowners’ lawsuit was barred by the one-year statutes of limitation set forth in sections >95.11(5)(d) and 631.68. Section 95.11(5)(d) requires the commencement of suit within one year for “[a]n action against any guaranty association and its insured, with the period running from the date of the deadline for filing claims in the order of liquidation.” Section 631.68 provides as follows:

A covered claim as defined herein with respect to which settlement is not effected and suit is not instituted against the insured of an insolvent insurer or the association within 1 year after the deadline for filing claims, or any extension thereof, with the receiver of the insolvent insurer shall thenceforth be barred as a claim against the association and the insured.

Based on these clear statutory provisions, the Homeowners were required to file suit against FIGA by May 2, 2012, within one year of the deadline for filing claims provided in the order of liquidation. See Fla. Ins. Guar. Ass’n v. Garcia, 614 So.2d 684, 685 (Fla. 2d DCA 1993); Webb v. Chambly, 584 So.2d 216, 216-17 (Fla. 4th DCA 1991); Montano v. Fla. Ins. Guar. Ass’n, 535 So.2d 658, 659 (Fla. 3d DCA 1988); see also Fla. Ins. Guar. Ass’n v. Jones, 802 So.2d 483, 483 (Fla. 3d DCA 2001) (citing section 631.68 and stating that a declaratory action was “barred under the one-year limitations period for actions against either the insured or the guaranty association”).

In opposition to summary judgment, there was nothing to contradict the time frame of the May 2, 2011, deadline for filing a claim and thus the May 2, 2012, deadline to file suit. Nothing showed, or even raised an inference, that FIGA extended the deadline for filing claims, which would have altered the deadline for filing suit. See Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000) (stating that summary judgment is proper “when no genuine issue of material fact exists after all reasonable inferences have been drawn in favor of the nonmoyant”). Because the action against FIGA was untimely, we affirm the final summary judgment.

Finally, we observe that the one-year statutes of limitations contained in sections 95.11(5)(d) and 631.68 may compel claimants to file lawsuits against FIGA before FIGA has completed the processing of their claims and made satisfactory payments. Such lawsuits may later prove to be unnecessary, depending on the outcome of the claims adjustment process. A statutory change in the limitations period to extend the time for filing such lawsuits until the adjusting process has been completed by FIGA may be sensible, but that is a matter for the legislature.

Affirmed.

ALTENBERND and KELLY, JJ., Concur.


author: MARSTILLER, J.

text:
    Marshall R. CASSEDY, Jr., Appellant, v. Kevin M. HOFMANN, John N. Patronis, and Anne L. Patronis, Appellees.
    No. 1D14-0745.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2014.
    Rehearing Denied Jan. 14, 2015.

      Stephen M. Masterson, Tallahassee, for Appellant.
    W. Scott Newbern, Tallahassee, for Ap-pellees.
   MARSTILLER, J.

The controversy underlying this appeal arose several years ago after Kevin M. Hofmann, John N. Patronis and Anne L. Patronis (“Appellees”) suffered financial losses they allege resulted from willful misconduct by their former stockbroker, Marshall R. Cassedy, Jr. (“Appellant”). The merits of Appellees’ case remain unaddressed, however, pending resolution on whether the case may be arbitrated or whether it must proceed in a court action. Appellees submitted their claims to arbitration, but Appellant sued to enjoin them, arguing they waived the right to arbitrate when they litigated the matter in court in 2009, albeit not to conclusion. Appellant seeks reversal of a final summary judgment in Appellees’ favor ruling that the waiver issue is for the arbitrator, not the court, to decide. Because we conclude the trial court incorrectly applied Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), we reverse the judgment and remand the case for further proceedings.

The procedural history of this case is, succinctly, as follows: In 2009, Appellees sued Appellant in state court to recover their financial losses. Appellant sought to compel arbitration based on provisions in Appellees’ brokerage account documents. Appellees opposed arbitration, asserting the pertinent provisions were either not binding or unenforceable. Little happened in the case over the next several years until early 2013 when Appellant moved to dismiss the lawsuit. Appellees responded by voluntarily dismissing the suit without prejudice. Approximately two months later, Appellees filed a Statement of Claim with the Financial Industry Regulatory Authority (“FINRA”) to initiate arbitration under a FINRA rule and not the disputed contract provisions; the statement contains the same allegations as were in the 2009 complaint. In response, Appellant went to state court seeking to enjoin Appellees from proceeding with arbitration, arguing that, by litigating their claims via court action in 2009, Appellees waived their right to arbitrate.

On Appellant’s motion for summary judgment, the trial court ruled that, based on Howsam, the waiver issue is properly to be determined by the arbitrator. The trial court read Howsam to hold that waiv.er is a procedural question arising from the arbitrable dispute which is for the arbitrator to decide.

In fact, the Supreme Court did not so hold. Rather, Howsam involved a factual scenario and a defense to arbitration significantly different from this case. At the center of the Howsam decision was a National Association of Securities Dealers (“NASD”) arbitration rule of procedure that established a six-year time limitation period for submitting claims to arbitration. 537 U.S. at 82, 123 S.Ct. 588. The issue for the Court was who should decide — a court or the arbitrator — whether the petitioner had lost the right to arbitrate by submitting its claim beyond the six-year period. Concluding this was a 'procedural issue for the arbitrator to resolve, the Supreme Court explained that, whereas gateway “questions of arbitrability” such as whether an arbitration agreement is binding or whether it covers a particular claim, is for the court to decide, procedural questions that grow out of the dispute are for an arbitrator to decide. Id. at 84-85, 123 S.Ct. 588. Procedural questions are those involving conditions precedent to the obligation to arbitrate, like time limits, notice, waiver, estoppel and other similar defenses. Id. at 85,123 S.Ct. 588 (citing Revised Uniform Arbitration Act of 2000 § 6(c), 7 U.L.A. 12-13 (Supp. 2002)).

Inasmuch as Howsam concerned a purely procedural issue — failure to file an arbitration claim within the time frame provided by procedural rule — we comfortably conclude the decision is inapplicable to this case, where the issue is waiver of the right to arbitrate by prior litigation. There are no Florida appellate decisions on whether Howsam applies in this scenario to inform our decision. But several federal appellate courts have held it does not, and we find those decisions persuasive.

In Marie v. Allied Home Mortgage Corp., 402 F.3d 1 (1st Cir.2005), the dispute between the parties arose from an employment contract that contained an arbitration clause. Instead of initiating arbitration, the employee filed a discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”) and with Massachusetts’ state-level counterpart to the EEOC. Id. at 4-5. The employer responded to the complaint, and when the EEOC found no discrimination, the employee filed a civil suit in state court. Id. at 5. The employer, in turn, removed the suit to federal court and moved to compel arbitration. Id. The district court denied the motion because the employer had failed to initiate arbitration within the 60-day period provided in the contract, and because, the employer had waived its right to arbitrate due to unreasonable delay in asserting the right. Id. at 5-6.

On appeal, the employer argued that the arbitrator, and not the court, should decide both issues. The First Circuit agreed as to the 60-day contractual time limitation period, finding it akin to the rule-based limitation period at issue in Howsam. Marie, 402 F.3d at 11. But the court ' disagreed as to the waiver, reasoning that the courts, which have traditionally determined issues of waiver by litigation conduct, are better positioned to determine whether a party is engaged in forum shopping — which is the essence of the waiver-by-prior-litigation argument in this context. Id. at 12-14. “We hold that the Supreme Court in Howsam and Green Tree [Fin. Corp. v. Bazzle, 539 U.S. 444, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003)] did not intend to disturb the traditional rule that waiver by conduct, at least where due to litigation-related activity, is presumptively an issue for the court.” Id. at 14.

The waiver-by-conduct issue in Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207 (3d Cir.2007), was whether the corporate defendant/appellant in a personal injury lawsuit waived its right to compel arbitration under a contractual provision after participating in the litigation for nearly four years. Relying on Howsam, the appellant argued that the waiver issue was presumptively for the arbitrator to decide. Persuaded by the First Circuit’s reasoning in Marie, the Third Circuit held that “waiver of the right to arbitrate based on litigation conduct remains presumptively an issue for the court to decide in the wake of Howsam[.]” 482 F.3d at 221. Explaining how Howsarn should be read, the court stated:

Viewed in isolation, the Supreme Court’s statement in Howsarn that “the presumption is that the arbitrator should decide ‘allegations of waiver, delay, or a like defense to arbitrability,’ ” certainly provides general support for [the appellant’s] position here. Properly considered within the context of the entire opinion, however, we believe it becomes clear that the Court was referring only to waiver, delay, or like defenses arising from non-compliance with contractual conditions precedent to arbitration, such as the NASD time limit rule at issue in that case, and not to claims of waiver based on active litigation in court.

Id. at 218-19 (citations and footnotes omitted).

In JPD, Inc. v. Chronimed Holdings, Inc., 539 F.3d 388, 393 (6th Cir.2008), the Sixth Circuit “join[ed] the First and Third Circuits in holding that the court, not the arbitrator, presumptively evaluates whether [a party] should be barred from seeking a referral to arbitration because it has acted inconsistently with reliance on an arbitration agreement.” And most recently, in Grigsby & Associates, Inc. v. M Securities Investment, 664 F.3d 1350,1353 (11th Cir.2011), the Eleventh Circuit vacated a district court’s order denying a request to enjoin arbitration on grounds of res judicata and waiver by prior litigation because the lower court failed to address the waiver claim. Aligning itself with the First, Third and Sixth Circuits, the Eleventh Circuit announced, “Today we conclude that it is presumptively for the courts to adjudicate disputes about whether a party, by earlier litigating in court, has waived the right to arbitrate. This presumption leaves the waiver issue to the decisionmaker with the greater expertise in recognizing and controlling abusive forum-shopping.” 664 F.3d at 1353-54. The court particularly observed that How-sam “involved no allegations of waiver,” and thus, did not “override” the court’s pre-Howsam longstanding “history of adjudicating conduct-based waiver claims.” Id. at 1354.

One federal appellate court — the Eighth Circuit — appears to have held otherwise. See Nat’l Am. Ins. Co. v. Transamerica Occidental Life Ins. Co., 328 F.3d 462, 466 (8th Cir.2003). But the waiver issue in that case involved a claim of prior arbitration of the dispute with some, but not all, parties to contracts containing the operative arbitration provisions. See id. at 463-64. Thus the case is distinguishable from the decisions cited above and from the instant case — which involve waiver by pri- or litigation conduct — and does not give rise to similar forum-shopping concerns. Although the Eighth Circuit provided no analysis to support its decision, the waiver claim in Transamerica arguably falls in the category of procedural claims arising from the dispute which Howsarn deemed presumptively for the arbitrator to decide. See Howsam, 537 U.S. at 85,123 S.Ct. 588.

A number of state appellate courts also have held Howsam does not assign waiver-by-prior-litigation claims presumptively to arbitrators. See, e.g., Radil v. Nat. Union Fire Ins. Co., 233 P.3d 688, 693-95 (Colo.2010); Good Samaritan Coffee Co. v. LaRue Distributing, Inc., 275 Neb. 674, 748 N.W.2d 367, 373-74 (2008); Perry Homes v. Cull, 258 S.W.3d 580, 588-89 (Tex.2008); Ocwen Loan Serv., LLC v. Washington, 939 So.2d 6, 11-14 (Ala.2006); Hong v. CJ CGV Am. Holdings, Inc., 222 Cal.App.4th 240,166 Cal.Rptr.3d 100,114 (2013).

Appellees maintain the trial court correctly applied Howsam to the waiver claim here because they are pursuing arbitration not under the contractual provisions they previously asserted were invalid, but under a FINRA rule that provides an independent right to arbitrate. We do not consider that a significant distinction because whether the right to arbitrate arose from a contract or from some other authority, the crux of Appellant’s waiver-by-prior-litigation claim is that, by litigating the underlying dispute for four years, Appellees acted inconsistently with the right to arbitrate and are now.forum shopping. Thus, the issue remains within the greater expertise of the court.

In keeping with the federal decisions discussed above, and with the decisions of several state appellate courts, we hold that a claim of waiver of the right to arbitrate based on prior litigation conduct is presumptively one for the court, rather than for the arbitrator, to decide. How-sam does not dictate otherwise. Accordingly, we reverse the final summary judgment on appeal and remand to the trial court to consider and rule on the merits of Appellant’s waiver claim.

REVERSED and REMANDED.

ROBERTS and SWANSON, JJ., concur.


author: PER CURIAM.

text:
    Jody Michael KIRKLAND, Former Husband, Appellant, v. Laurie Jean KIRKLAND, Former Wife, Appellee.
    No. 1D14-4917.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2014.
    Rehearing Denied Jan. 14, 2015.
    James Preston Brunet, Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant has sought review of the lower tribunal’s August 19, 2014, Order Denying Former Husband’s Supplemental Petition to Modify Final Judgment of Dissolution of Marriage. Upon consideration of appellant’s response to the Court’s order of October 29, 2014, the Court has determined that the order is a non-final order as it reserves jurisdiction and contemplates the exercise of additional judicial labor with regard to the issue of child support. Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002); Klein v. Klein, 551 So.2d 1235 (Fla. 3d DCA 1989). Accordingly, the appeal is dismissed for lack of jurisdiction.

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


text:
    Willie JAMES, Husband, Appellant, v. Patricia JAMES, Wife, Appellee.
    No. 1D14-272.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.
    Rehearing Denied Jan. 15, 2015.
    Willie James, pro se, Appellant.
    Michael L. Edwards, Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Owens v. Owens, 973 So.2d 1169,1170 (Fla. 1st DCA 2007).

WOLF, ROWE, and OSTERHAUS, JJ., concur.


author: SHEPHERD, FRANK A., Associate Judge.

text:
    Yazan KHATIB, Vaqar Ali, Youssef Al-Saghir, and Sumant Lamba, Appellants, v. OLD DOMINION INSURANCE COMPANY and Majdi Ashchi, individually, Appellees.
    No. 1D13-4652.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2014.
    Rehearing Denied Jan. 15, 2015.

      Charles P. Pillans, III, and Patrick P. Coll of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, for Appellants.
    Hinda Klein and Elizabeth A. Izquierdo of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellees.
   SHEPHERD, FRANK A., Associate Judge.

The issue in this case is whether Old Dominion Insurance Company has a duty to defend and indemnify four doctors who are defendants in a third-party defamation claim, appended to a multi-faceted action for fraud, conversion, civil conspiracy, breach of contract, and other causes of action, being prosecuted by them against the president and founder of a medical practice they all once enjoyed together. It is not seriously questioned that the doctors are insureds under the policy and that the insuring clause of the insurance policy would afford coverage to the doctors. The dispositive question is whether coverage is precluded by a policy exclusion. The trial court so found, but we disagree. On de novo review, we conclude that Old Dominion has an obligation to afford a defense to the third-party doctor defendants on the defamation claim filed against them, but we demur on the issue of indemnity.

A. BACKGROUND

This case stems from a dispute between Dr. Majdi Ashchi and the appellants, Drs. Yazan Khatib, Vaqar Ali, Youssef Al-Sa-ghir, and Sumant Lamba. Dr. Ashchi was the president and founder of First Coast Cardiovascular Institute (“FCCI”), a professional service organization that treats heart and cardiovascular disease. Appellants are FCCI’s other officers and directors. After wresting control of FCCI from Dr. Ashchi, appellants, acting through FCCI, sued Dr. Ashchi and others for fraud, negligently supplying false information, breach of contract, reformation, unjust enrichment, breach of fiduciary-duty, and conspiracy. Dr. Ashchi denied all allegations and upped the ante by joining his former colleagues in the action individually, through a third-party defamation complaint.

The third-party complaint alleges, inter alia, that appellants launched a systematic plan to take control of FCCI and oust Dr. Ashchi from power. The complaint further alleges that as part of the plan, Dr. Khatib made baseless allegations against Dr. Ashchi at an FCCI shareholders meeting and that each of the appellants published defamatory statements about Dr. Ash-chi to third parties. The complaint also alleges appellants “knew or should have known” that the defamatory statements they made about Dr. Ashchi were false.

The insurance policy in this case is a commercial general liability insurance policy. FCCI is the named insured on the policy. The policy also insures FCCI’s “ ‘executive officers’ and directors ... but only with respect to their duties as officers and directors.” The third-party doctor defendants are executive officers or directors of FCCI, and in some cases both. It is alleged that at a shareholders meeting, Dr. Khatib wrongfully accused Dr. Ashchi of stealing money from FCCI to pay for improvements to his home, intentionally overcharging FCCI millions of dollars in rent through his real estate affiliates, and engaging in other acts of embezzlement. It further is alleged that Dr. Khatib and each of the third-party defendants published the same or similar statements to FCCI staff members, referring physicians, and patients.

B. ANALYSIS

We have little difficulty in concluding that at least some of these alleged wrongs were performed by the third-party defendant doctors “with respect to their duties as officers and directors.” Some, if not all, of the wrongs alleged occurred while the third-party doctor defendants were either discharging their obligation at a shareholders meeting or executing other official duties.

We also find on de novo review that “Coverage B” of the policy insuring agreement affords the third-party defendant doctors coverage in this case, subject, of course, to the workings of any policy exclusion. This insuring clause provides:

COVERAGE B. PERSONAL AND ADVERTISING INJURY LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal injury” or “advertising injury” to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “personal injury” or “advertising injury” to which this insurance does not apply. We may, at our discretion investigate any “occurrence” or offense and settle any claim or “suit” that may result....
b. This insurance applies to:
(1) “Personal injury” caused by an offense arising out of your business ....

“Personal injury” is defined in the policy to include “injury, other than ‘bodily injury,’ arising out of one or more of the following offenses: ... (d) Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services.” It matters not under the policy that the alleged defamation is uttered against another insured or occurs during the course of a family feud. Old Dominion easily could have excepted coverage for defamation among insureds if it so desired. It also is incontestable that the allegations of the third-party complaint — in fact of the entire lawsuit— “arise[] out of [the] business” conducted by the parties. We therefore turn to the exclusions from coverage.

Old Dominion argues that the employment-related practices exclusion found in one of the endorsements to the insurance policy excuses it from any coverage obligation in this case. This exclusion reads in pertinent part:

This insurance does not apply to:
“Personal injury” to:
(1) A person arising out of any
(a) Refusal to employ that person;
(b) Termination of that person’s employment; or
(c) Employment-related practices, policies, acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person....

(emphasis added).

The exclusion goes on to specify that it applies:

(1) Whether the insured may be liable as an employer or in any other capacity....

This exclusion, by its terms, excludes from coverage any claim for damages for “‘[p]ersonal injury* caused by an offense arising out of [an insured’s] business” where the “personal injury” also “aris[es] out of any ... (c) [e]mployment-related practices ... such as ... defamation.” (emphasis added). The third-party defendant doctors argue that the emphasized language found in subsection (l)(c) of the employment-related practices exclusion is ambiguous as a matter of law because it negates the coverage afforded under Coverage B, subsection l.b, which affords coverage for “ ‘personal injury’ caused by an offense “arising out of [the insured’s] business.” The third-party defendant doctors are correct on the law but wrong on the interpretive facts.

It is true that an insurance policy cannot, with impunity, grant a right in one paragraph, then retract the very same right in an exclusion. See Tire Kingdom, Inc. v. First S. Ins. Co., 573 So.2d 885, 887 (Fla. 3d DCA 1990) (concluding that conflicting provisions create an ambiguity concerning the question of coverage). It also is true that ambiguities thus created are “construed against the insurer and in favor of coverage.” See Acosta, Inc. v. Nat’l Union Fire Ins. Co., 39 So.3d 565, 573 (Fla. 1st DCA 2010) (quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005)). Unfortunately for the third-party doctor defendants, however, a cursory consideration of the two clauses on which they place their reliance for this argument reveals the provisions do not conflict.

Contrary to the argument of the third-party doctor defendants, a defamatory utterance might easily “arise out of [a company’s] business” while being not at all “employment related.” Case law from around the country supports this conclusion. See HS Servs., Inc. v. Nationwide Mut. Ins. Co., 109 F.3d 642, 646-47 (9th Cir.1997) (holding that for an act or omission to be “employment related,” the relationship to employment must be direct and proximate); Golden Eagle Ins. Corp. v. Rocky Cola Cafe, Inc., 94 Cal.App.4th 120, 114 Cal.Rptr.2d 16 (2001) (adopting the narrow interpretation of “employment related” by Ninth Circuit in HS Servs.); Waffle House, Inc. v. Travelers Indem. Co. of Illinois, 114 S.W.3d 601, 610 (Tex.App.Forth Worth 2003) (finding that the context of defamatory statements was not clearly employment related where the statements arose out of a company’s attempt to prevent employees from leaving and not out of a former employee’s termination). This interpretation also is consistent with our canon of construction providing that when a drafter uses two different phrases in the same context when he might have used one, it is presumed the drafter meant two different things. See Universal Prop. & Cas. Ins. Co. v. Johnson, 114 So.3d 1031, 1036 (Fla. 1st DCA 2013) (“A contract is not to be read so as to make one section superfluous, and so ‘[a]ll the various provisions of a contract must be so construed ... as to give effect to each.’ ” (quoting Univ. of Miami v. Frank, 920 So.2d 81, 87 (Fla. 3d DCA 2006))).

However, our task is not yet at an end. It is further axiomatic in the law of insurance coverage in Florida that if a complaint alleges some facts within and some facts outside of coverage under an insurance policy, the insurer must nevertheless defend the entire suit. Grissom v. Commercial Union Ins. Co., 610 So.2d 1299, 1307 (Fla. 1st DCA 1992) (citations omitted). In this regard, the third-party complaint contains the following “examples” of defamatory statements allegedly made about Dr. Ashchi by the third-party doctor defendants to their staff members, referring physicians, and patients:

a. Dr. Khatib told Dr. Imran Sheikh that Dr. Ashchi had embezzled from FCCI;
b. Dr. Khatib told Dr. Jessica Barbare that Dr. Ashchi was guilty of financial improprieties;
c. Dr. Khatib told Victoria Kozel that Dr. Ashchi was due to be prosecuted for his conduct at FCCI;
d. Dr. Khatib told Dr. Juzar Lokhand-wala that Dr. Ashchi orders unnecessary procedures; and
e. Dr. Al-Saghir told Dr. David Grech that Dr. Ashchi was a thief.

There is no indication in the third-party complaint that these allegedly defamatory statements were “employment related” at all. It is quite possible, for example, that these utterances were made at a business-related conference or business-related social event, therefore “arising out of [the insureds’] business” for insuring agreement purposes, while at the same time not being “employment related” in any of the narrow senses discussed above. Moreover, “[i]f the allegations of the complaint leave any doubt regarding the duty to defend, the question must be resolved in favor of the insured requiring the insurer to defend.” Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.2d 810, 814 (Fla. 1st DCA 1985) (citing New Amsterdam Cas. Co. v. Knowles, 95 So.2d 413 (Fla.1957); 7C Appleman, Ins. Law & Practice, § 4683, p. 58 (Berdal Ed. 1979)). Our study of the third-party complaint in this case leaves us with sufficient doubt.

C. CONCLUSION

For the reasons stated, we find that Old Dominion Insurance Company owes the third-party defendant doctors a duty of defense on the allegations of the third-party complaint. At the same time, we hold that the decision of the trial court exonerating Old Dominion Insurance Company from a duty to indemnify the third-party defendant doctors is premature. A liability insurer’s duty to indemnify is narrower than the duty to defend. E.g., U.S. Fire Ins. Co. v. Hayden Bonded Storage Co., 930 So.2d 686, 691 (Fla. 4th DCA 2006) (citation omitted). The duty to indemnify is thus often dependent upon further factual development through discovery or at trial. Id. We find that to be so in this case. Accordingly, we reverse and remand for further proceedings on Dr. Ashchf s claim for indemnity.

Reversed and remanded with directions.

MAKAR and OSTERHAUS, JJ., concur.


text:
    PALM CONSTRUCTION COMPANY OF WEST FLORIDA, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Division of Workers’ Compensation, Appellee.
    No. 1D13-4847.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2014.
    Kristian E. Dunn and Bennett M. Miller of Dickens & Dunn, P.L., Tallahassee, for Appellant.
    Alexander R. Brick, Assistant General Counsel, Tallahassee, for Appellee.
   MARSTILLER, J.

In April 2013, the Department of Financial Services, Division of Workers’ Compensation (“Department”) issued a Stop-Work Order and an Amended Order of Penalty Assessment against Appellant, Palm Construction Company of West Florida, for failing to have workers’ compensation coverage, as required by chapter 440, Florida Statutes. Appellant sought an evi-dentiary administrative hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes, and the Department referred the matter to the Division of Administrative Hearings (“DOAH”). But in July 2013, after Appellant failed to timely respond to discovery requests, the Department filed a Motion to Deem Matters Admitted and to Relinquish Jurisdiction. The presiding Administrative Law Judge (“ALJ”) granted the motion, relinquished jurisdiction over the matter to the Department and closed the DOAH file. The same day, but after the ALJ’s order issued, Appellant filed with DOAH an emergency motion to reopen the case, asserting that the Department’s discovery requests now had been fully answered. The ALJ denied the motion, concluding DOAH no longer had jurisdiction over the case and stating the Department “is the authority to whom Respondents’ motion should be directed.” Thereafter, the Department entered the final order now on appeal, which assesses a $32,988.04 penalty against Appellant.

Seeking reversal of the order, Appellant argues that the ALJ abused her discretion by failing to consider the merits of, and hold a hearing on, the emergency motion to reopen the case. We see no basis for finding an abuse of discretion, however. Appellant concedes it did not timely respond to the Department’s discovery requests. Thus the factual matters included in the Department’s request for admissions were deemed admitted. See Fla. R. Civ. P. 1.370(a); Fla, Dept of Financial Servs. v. Tampa Serv. Co., Inc., 884 So.2d 252, 253 (Fla. 1st DCA 2004). Appellant filed no response to the Department’s motion to deem matters admitted. Therefore, in the apparent absence of remaining disputed factual issues, the ALJ properly relinquished jurisdiction of the case to the Department. See § 120.57(l)(i), Fla. Stat. Appellant’s subsequent emergency motion was filed in a tribunal without jurisdiction to consider it; there simply was no authority for an exercise of discretion by the ALJ.

Appellant also raises issues concerning the sufficiency of the allegations in the Stop-Work Order and Amended Order Imposing Penalty which serve as the basis for the penalty assessed, the accuracy of the Department’s penalty calculation, and the propriety of the Department’s entering the final order without giving Appellant an opportunity to be heard. Here, too, we find no basis for reversal. Nothing in the record shows that, after DOAH relinquished jurisdiction to the Department, Appellant either entreated the Department to return the matter to DOAH for an evidentiary hearing or requested a non-evidentiary, or informal, hearing under section 120.57(2), Florida Statutes, to address the issues now raised on appeal. Consequently, Appellant failed to preserve them for our review. See Dep’t of Bus. & Prof'l Reg. v. Harden, 10 So.3d 647, 649 (Fla. 1st DCA 2009) (“It is well-established that for an issue to be preserved for appeal, it must be raised in the administrative proceeding of the alleged error.”).

AFFIRMED.

BENTON and WETHERELL, JJ., concur.


author: STEVENSON, J.

text:
    Alva SOSA and Alex Amador, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, Appellee.
    No. 4D13-1657.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.

      Andrea H. Dueñas of the Law Office of A. Dueñas, P.A., Lantana, for appellants.
    Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, Alabama, for appellee.
   STEVENSON, J.

Alva Sosa and Alex Amador (“Homeowners”) appeal from a final judgment of foreclosure. U.S. Bank National Association (“Bank”) is the appellee. Finding the trial court erred in determining Bank had standing to initiate the foreclosure action, we reverse.

Facts

Bank filed its foreclosure complaint in November 2008. It attached to this complaint a copy of the mortgage but not a copy of the note, as Bank was originally seeking to enforce a lost note. Homeowners answered and raised lack of standing as an affirmative defense. The case proceeded to trial where, through the testimony of Bank’s one witness, the original promissory note was submitted into evidence, and final judgment was entered in favor of Bank.

Analysis

“We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.” Lacombe v. Deutsche Bank Nat'l Trust Co., 149 So.3d 152, 153 (Fla. 1st DCA 2014) (citing Dixon v. Express Equity Lending Grp., LLLP, 125 So.3d 965 (Fla. 4th DCA 2013)). “[T]he plaintiff must prove that it had standing to foreclose when the complaint was filed.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). Relevant here, “[w]here the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit.” Id. at 174. A plaintiff can establish standing through an affidavit of ownership, wherein standing is established “if the body of the affidavit indicates that the plaintiff was the owner of the note and mortgage before suit was filed.” Id. A witness who testifies at trial as to the date a bank became the owner of the note can serve the same purpose as an affidavit of ownership.

At trial, Bank introduced the original note and the allonge to note through a senior litigation analyst with Bank’s servi-cer. The original note contained an undated special endorsement in favor of Exam Financial Group, LLC, while the allonge to note contained an undated special endorsement in favor of Bank. Because the original note and the allonge to note were filed after Bank filed its foreclosure complaint, and each contained undated special endorsements, Bank had to establish standing through the testimony of the litigation analyst. It failed to do so.

Here, the analyst never stated when Bank became the owner of the note. He gave the date of the first endorsement found on the allonge to note, but he did not discuss the date of the second endorsement found on the allonge. The second endorsement found on the allonge to note was the pertinent one as it was the one which specially endorsed the note to Bank. See McLean, 79 So.3d at 174 (reversing summary judgment because the bank filed the original note with a special endorsement after it filed its complaint, the special endorsement was not dated and there was no evidence as to when the special endorsement was made). Although the analyst testified that Ocwen (Bank’s servicer) came into possession of the note prior to filing; the foreclosure action, such testimony is not dispositive as it is still unclear when Bank, through the placement of the special endorsement, became the owner of the note.

Because Bank failed to establish when it became the owner of the note, the trial court erred in finding Bank had standing to initiate the foreclosure action. Accordingly, we reverse the final judgment of foreclosure and remand for entry of an order of involuntary dismissal of the action. See Lacombe, 149 So.3d at 156 (“We decline to remand the case for presentation of additional evidence because ‘appellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.’ ” (quoting Morton’s of Chicago, Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010))).

Reversed and Remanded.

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


author: FORST, J.

text:
    SUNTRUST MORTGAGE, Appellant, v. Dean Calvin TORRENGA and Kathleen Ann Torrenga, Appellees.
    No. 4D13-4590.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.

      Anna B. Middleton of MeCalla Raymer, LLC, Orlando, for appellant.
    No appearance for appellees.
   FORST, J.

Appellant SunTrust Mortgage, Inc. (“SunTrust”) filed a foreclosure action in May 2009. Four years later, SunTrust’s counsel attended a case management conference, at which the magistrate recommended the case be set for trial. When the case was scheduled, SunTrust’s counsel received notice of the date and time the case was to be heard. However, due to a clerical or administrative error, she failed to enter the information into her internal case management system. As a result, neither SunTrust nor its counsel appeared at trial, leading the court to dismiss the complaint. Upon discovery of the error and dismissal, SunTrust moved for rehearing or to vacate the dismissal for excusable neglect. The court denied this motion without hearing. SunTrust now appeals this denial. As discussed below, Florida Rule of Civil Procedure 1.540(b) covers this scenario, and we thus reverse and remand this case to the circuit court for trial.

Standard of Review

Under Florida Rule of Civil Procedure 1.540(b), a party can seek relief from a final judgment based on mistake or excusable neglect, while Florida Rule of Civil Procedure 1.530(a) allows for rehearing or a new trial. “A trial court’s determination on a motion for relief from judgment is reviewed for an abuse of discretion.” SunTrust Bank v. Puleo, 76 So.3d 1037, 1039 (Fla. 4th DCA 2011); see also Chigurupati v. Progressive Am. Ins. Co., 132 So.3d 263, 265 (Fla. 4th DCA 2013) (“[W]e review an order denying a motion to vacate a default for an abuse of discretion.”).

Analysis

Florida courts have a preference for deciding cases on the merits of the claims rather than on a technicality. J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 69 (Fla. 4th DCA 2008). As discussed below, where an issue is. decided on a technicality and the failure of a party to comply with the technical requirement can be attributed to excusable neglect, courts have consistently allowed the party to seek rehearing or to vacate the judgment obtained against them.

“Excusable neglect is found ‘where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.’ ” Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304, 307 (Fla. 4th DCA 2010) (quoting Somero v. Hendry Gen. Hasp., 467 So.2d 1103, 1106 (Fla. 4th DCA 1985)). Courts have found excusable neglect where an attorney failed to act due to an incorrect assumption that opposing counsel would tell him when a personal representative was appointed, Somero, 467 So.2d at 1104, where an attorney mistakenly confused an active case with a settled one between the two parties, Zwickel v. KLC, Inc., 464 So.2d 1280 (Fla. 3d DCA 1985), and where a defendant failed to respond to a complaint that had been buried under unrelated papers, Edwards v. Najjar, 748 So.2d 1101 (Fla. 3d DCA 2000).

This court has held that the excusable neglect doctrine applies in circumstances almost identical to those in this case. In J.J.K, this court held that it was an abuse of discretion to deny a motion for rehearing when a plaintiffs attorney failed to attend a hearing his secretary had mistakenly marked as cancelled. J.J.K, 985 So.2d at 68. Likewise, this court held the trial court erred in denying relief where a plaintiff failed to attend a hearing due to a “secretarial scheduling error.” City of Pembroke Pines v. Zitnick, 792 So.2d 677, 678 (Fla. 4th DCA 2001); see also U.S. Bank, N.A. v. Vogel, 137 So.3d 491, 494 (Fla. 4th DCA 2014) (“A mistake sufficient to set aside a judicial [foreclosure] sale is shown where the owner became deprived of an opportunity to bid at the sale when, because of inadvertence or a mistake, an attorney who was to represent the owner there for that purpose was not present.”); Fernandez v. Suburban Coastal Corp., 489 So.2d 70, 72 (Fla. 4th DCA 1986) (holding failure to bid resulted from agent’s failure to calendar sale date).

“Excusable neglect must be proven by sworn statements or affidavits.” Elliott, 31 So.3d at 307 (quoting Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004)). In the instant case, SunTrust provided affidavits explaining the clerical mishap that led to its counsel’s absence from the trial. While this court has been liberal in its application of the excusable neglect doctrine, relying on that doctrine should not be a litigation strategy. A party cannot obtain relief from a foreclosure sale “solely by reference to that party’s own lack of diligence.” John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980); see also Peterson v. Lake Surprise II Condo. Assoc., 118 So.3d 313, 313 (Fla. 3d DCA 2013) (holding no basis for relief from default judgment and resulting foreclosure sale where the mortgagee determined that it was not necessary to answer complaint); Stamato v. Stamato, 818 So.2d 662, 665 (Fla. 4th DCA 2002) (“[P]laintiff s failure to ascertain whether the court had ruled is the type of inexcusable neglect which would bar relief....”); Nat’l Premium Budget Plan Corp. v. All Am. Assurance Co., 389 So.2d 324, 325 (Fla. 3d DCA 1980) (“Excusable neglect sufficient to warrant vacating a default is not shown by mere proof that the defendant relied upon another to defend the aetion[.]”).

In contrast to those inexcusable neglect cases, the attorney’s unintentional absence in the instant case due to inadvertent calendaring is the type of mistake excused by Florida Rule of Civil Procedure 1.540(b), as well as judicial precedent. Since Sun-Trust established sufficient evidence to show excusable neglect and this court’s precedents clearly demonstrate a pattern of holding similar errors by counsel to be excusable neglect, we hold that the trial court abused its discretion by denying SunTrust’s motion to vacate the dismissal of its complaint.

Reversed and Remanded.

CIKLIN and CONNER, JJ., concur.


text:
    Marvin Tyrone TARLETON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5292.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2014.
    Rehearing Denied Jan. 15, 2015.
    Marvin Tyrone Tarleton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R. App. P. 9.141(d)(5) and (d)(6)(C).

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


author: CLARK, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, Trustee for Lehman Brothers-Structured Asset Investment Loan Trust Sail 2005-3, Appellant, v. Nicholas F. FARHOOD a/k/a Nicholas F. Farhood; Mortgage Electronic Registration Systems, Inc., as Nominee for Countrywide Home Loans, Inc.; Sides Moreno Point West; Leah Farhood, Unknown Spouse of Nicholas Farhood; Unknown spouse of Leah Farhood, Beach Community Bank; John E. Venn, Jr., Trustee., Appellees.
    No. 1D14-0268.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.

      Thomas H. Loffredo and Jeffrey T. Kuntz of GrayRobinson, P.A., Fort Laud-erdale, and Michael E. Riley of GrayRo-binson, P.A., Tallahassee, for Appellant.
    Jacob A. Brainard, Scott C. Davis, and Candice J. Gundel of Business Law Group, P.A., Tampa, for Appellee Sides Moreno Point West Owners Association, Inc.
   CLARK, J.

This appeal is from the final summary judgment of foreclosure upon cross-motions for summary judgment for mortgage and hen foreclosures. U.S. Bank National Association, as Trustee for Structured Asset Investment Loan Trust, Mortgage Pass-Through Certificates, Series 2005-3 (“U.S.Bank”) appeals the portions of the final summary judgment wherein the trial court, “pursuant to the Court’s order of April 17, 2012,” deemed the hen for association fees of Sides Moreno Point West Owners’ Association, Inc. (“the Association”) superior in priority to the mortgage lien of U.S. Bank. U.S. Bank contends that the trial court abused its discretion by sanctioning. U.S. Bank with a penalty which contravenes the statutory provisions governing hen priority and which ignores the complete and adequate procedures and remedies at law available if a party fails to diligently prosecute its case or willfully employs delay tactics in the litigation. We agree and reverse the challenged portion of the final summary judgment of foreclosure and the prior order upon which it is based. In all other respects, the final summary judgment of foreclosure is affirmed.

U.S. Bank filed its complaint for foreclosure in the circuit court on July 15, 2007. The Association was included as a party defendant based on its claim of hen for condominium association assessments, which — according to the allegations of the complaint — had been recorded in the official records of Okaloosa County prior to the filing of U.S. Bank’s complaint. The Association answered the complaint and asserted a counter claim for foreclosure on its claim of lien for the condominium assessments. § 718.116(5)(a), Fla. Stat. From the initial pleadings and throughout the litigation, the priority of the respective parties’ liens was a contested issue.

The litigation progressed slowly for four years after the filing of the initial complaint. However, the record contains no motion under rule 1.420(e), Florida Rules of Civil Procedure and no notice for trial or order setting the action for trial pursuant to rule 1.440. On September 1, 2011, upon U.S. Bank’s motion to dismiss the Association’s counterclaim and upon an unrecorded hearing on that motion, the circuit court entered an order denying the motion to dismiss. In that order, the court found that U.S. Bank had delayed the case and failed to act upon it. As a “sanction,” the court ordered U.S. Bank to pay $2,500.00 to the Association.

In early 2012, U.S. Bank filed its motion for summary judgment of foreclosure, which included allegations that its mortgage was recorded prior to the liens of other defendants and was thus superior in interest to those liens. The Association then filed its motion to dismiss and for sanctions against U.S. Bank for additional delay tactics. The Association also sought summary judgment on its counter claim for foreclosure on its claim of lien for the assessments and alleged that its lien was superior to any interest of U.S. Bank and the borrowers.

The circuit court disposed of the pending motions in its order entered April 17, 2012. The court found that U.S. Bank’s failure to pursue the litigation had been “willful, deliberate, and/or contumacious,” resulting in prejudice to the Association’s interests and causing “significant problems of judicial administration” without reasonable justification. However, the court did not dismiss U.S. Bank’s action, impose any monetary sanction requested in the Association’s motion, or charge U.S. Bank with the Association’s attorney’s fees. Rather, the court stated that it exercised “its equitable power and authority to give [the Association] first lien priority in this matter” and declared that the Association’s lien and interest in the real property “is now superior to any right, title, interest or claim” of U.S. Bank. U.S. Bank’s petition to this Court for writ of certiorari review was unsuccessful. U.S. Bank Nat’l Ass’n v. Farhood, 110 So.3d 446 (Fla. 1st DCA 2013).

On appeal is the circuit court’s final summary judgment of foreclosure, entered December 13, 2013. In that judgment, the circuit court relied on its order entered April 17, 2012 as the basis for holding the Association’s lien “superior to the liens or interests of Plaintiff/Counter-Defendant, U.S. Bank” and for ruling that U.S. Bank’s lien was “prior, paramount, and superior to all rights, claims, lien interests, encumbrances and equities of the Defendants, except for” the Association. The court determined that the Association was entitled to a total of $79,458.71 for condominium assessments, interest, costs and fees, and that U.S. Bank was entitled to a total of $740,450.73 under the note and mortgage, including principle, interest, escrow payments, and other costs.

We review the circuit court’s decision to impose sanctions under an abuse of discretion standard. Boca Burger, Inc. v. Forum, 912 So.2d 561, 573 (Fla.2005). This standard applies to sanctions in the context of foreclosure actions and lien issues. Broward Cnty. v. Recupero, 949 So.2d 274, 276 (Fla. 4th DCA 2007). In this case, the court’s resort to its “equitable power and authority” to fashion a sanction for unspecified delays in this case constituted an abuse of discretion which must be reversed.

Mortgage foreclosure actions are equitable in nature. § 702.01, Fla. Stat. The Florida Supreme Court recently reemphasized “[w]hen it is necessary, Florida courts have powers at their disposal to provide equitable remedies to litigants.” Arsali v. Chase Home Fin. LLC, 121 So.3d 511, 517 (Fla.2013). However, the long-enduring principle that “equity will not act when there is a full, adequate, and complete remedy at law” applies to mortgage foreclosure actions and continues in effect today. Wildwood Crate & Ice Co. v. Citizens Bank of Inverness, 98 Fla. 186, 192, 123 So. 699, 701 (1929); see also Jackson v. Computer Science Raytheon, 36 So.3d 754, 756 (Fla. 1st DCA 2010) (recitation of rule).

The circuit court’s frustration with the slow progress of a stale case is certainly understandable. “Dilatory practices bring the administration of justice into disrepute.” Comment, R. Regulating Fla. Bar 4-3.2. Members of the Florida Bar have an ethical obligation to “make reasonable efforts to expedite litigation consistent with the interests of the client.” R. Regulating Fla. Bar 4-3.2. Tactics to delay or avoid progress employed for the purpose of frustrating an opposing party’s attempt to obtain rightful redress are sanctionable. See Comment, R. Regulating Fla. Bar 4-3.2. However, the court’s orders do not indicate that any action by U.S. Bank or counsel interfered with the court’s ability to manage this case in accordance with rule 2.545(b), Florida Rules of Judicial Administration.

Even if the court correctly found that U.S. Bank or counsel had engaged in sanc-tionable delay tactics, the court had no need to resort to its equitable powers to create the sanction in this case. Appropriate remedies to address any willful and deliberate delay in the litigation are already established. See § 57.105(2), Fla. Stat. (award of attorney’s fees and costs caused by opposing party’s deliberate delays); Fla. R. Civ. P. 1.420 (dismissal of all or part of an action); 1.440 (setting action for trial); Fla. R. Jud. Admin. 2.545(e) (continuances should be few, good cause is required).

Not only did the court unnecessarily invoke equitable powers to create a remedy for delay, the order declaring the Association’s lien superior to U.S. Bank’s lien as a sanction for such delay exceeded the court’s authority. “[Cjourts of equity have no power to overrule established law.” Pineda v. Wells Fargo Bank, N.A., 143 So.3d 1008, 1011 (Fla. 3d DCA 2014) (citing Orr v. Trask, 464 So.2d 131, 135 (Fla. 1985); Flagler v. Flagler, 94 So.2d 592, 594 (Fla.1957)). The court’s declaration of lien priority as a sanction impermissibly overlooks the common law and encroaches on the Legislature’s codification of well-established property rights.

The common law rule “governing priority of lien interests is ‘first in time is first in right.’ ” Holly Lake Ass’n v. Fed. Nat’l Mortg. Ass’n, 660 So.2d 266, 268 (Fla.1995). “First in time” is determined under sections 28.222(2), Florida Statutes (Clerks of Court must maintain register of time and number of filing instruments); 695.01 (to bind creditors and subsequent purchasers, conveyances & mortgages on real property must be recorded); and 695.11 (sequence of official register numbers determines priority of recordation). The Legislature has specifically addressed lien priorities between condominium associations, for assessments, and mortgagees seeking foreclosure, in section 718.116(5).

Contrary to its assumption in the order imposing the sanction, the circuit court did not have “equitable power and authority to give [the Association] first lien priority in this matter,” without regard to the statutes governing such lien priorities. The imposition of sanctions which contravene the recording and lien priority statutes, or the statutes establishing time and amount limits for a mortgagee’s liability for condominium assessments, exceed a trial court’s discretion and require reversal. See U.S. Bank Nat’l Ass’n v. Tadmore, 23 So.3d 822 (Fla. 3d DCA 2009) (reversing sanctions for delays in litigation which required plaintiff Bank to pay condominium assessments earlier and in amounts in excess of those required by section 718.116(l)(b)); Deutsche Bank Nat’l Trust Co. v. Coral Key Condo. Ass’n, 32 So.3d 195 (Fla. 4th DCA 2010) (same).

The sanction imposed here actually determined a material, disputed issue in the litigation. The declaration of lien priority did not rely on any evidence of recorded documents but simply declared the Association’s lien superior as a sanction for U.S. Bank’s unspecified delays. The established remedies for dilatory prosecution of the action do not include making findings of fact not supported by admissible evidence.

Finally, the circuit court’s finding that the “actions” by U.S. Bank and counsel “have been willful, deliberate and/or contumacious” does not cure the erroneous sanction order. In Broward County v. Recupero, 949 So.2d 274, 277 (Fla. 4th DCA 2007), the trial court entered an order sanctioning the County for violating an earlier court order by deeming the County’s duly recorded liens satisfied. The Fourth District Court of Appeal reversed, but stated in dicta that “such an extreme sanction would require willfulness, contu-maciousness, or deliberate disregard, all of which were absent from the order and not supported in the record.” Broward County v. Recupero, 949 So.2d at 277. We decline to interpret this language as authorization for the sanction in this case.

The final summary judgment of foreclosure is affirmed in part, and reversed in part. We reverse the order entered April 17, 2012, upon which the lien priority rulings in the final summary judgment of foreclosure are based, and reverse paragraph 7 of the final summary judgment and the other portions of that judgment regarding the priority of the Association’s lien. The case is remanded for a determination by the trial court of the relative priority of the parties’ liens, based on any evidence submitted by the parties and the application of sections 695.11 and 718.116(5), Florida Statutes to that evidence. If the Association incurred “undue expense” as a result of any dilatory tactics by U.S. Bank during the course of this action, as referenced in the circuit court’s order entered April 17, 2012, this may properly be addressed upon a motion for attorney’s fees and costs in the trial court. See § 57.105(2), Fla. Stat.

PADOVANO, J., concurs.

THOMAS, J., concurs in Result only.

      . The record contains subsequently recorded claims of lien by the Association, perhaps to preserve the effectiveness of the claim under section 718.116(5)(b), Fla. Stat.

        . See City of Palm Bay v. Wells Fargo Bank, N.A., 114 So.3d 924 (Fla.2013) for additional discussion of priority of interests in real estate.

      . Section 718.116(5)(a) provides:
      (5)(a) The association has a lien on each condominium parcel to secure the payment of assessments. Except as otherwise provided in subsection (1) and as set forth below, the lien is effective and shall relate back to the recording of the original declaration of condominium ... However, as to first mortgages of record, the lien is effective from and after recording of a claim of lien in the public records of the county in which the condominium parcel is located. Nothing in this subsection shall be construed to bestow upon any lien, mortgage, or certified judgment of record on April 1, 1992, including the lien for unpaid assessments created herein, a priority which, by law, the lien, mortgage or judgment did not have before that date.


text:
    Claudia GRANERA, Appellant, v. SEDANO’S SUPERMARKET # 31, etc., Appellee.
    No. 3D12-3302.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2014.
    Eddy 0. Marban, for appellant.
    Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A. Valdez (Tampa), for appel-lee.
    Before SHEPHERD, C.J., and LAGOA and SCALES, JJ. •
   PER CURIAM.

In December 2011, Appellant, Claudia Granera (Granera), filed a complaint against Appellee, Sedano’s Supermarket # 31, etc. (Sedano’s), alleging that Seda-no’s had discriminated and retaliated against Granera because of Granera’s pregnancy in violation of the Florida Civil Rights Act (FCRA), section 760.10, Florida Statutes (2011).

Sedano’s filed a motion to dismiss Gran-era’s complaint asserting that Granera was not a member of a class protected by FCRA.

Based on this Court’s then-recent decision in Delva v. Continental Group, Inc., 96 So.3d 956 (Fla. 3d DCA 2012) (Delva I), wherein this Court held that Florida law does not prohibit pregnancy discrimination in employment practices, the parties stipulated to the trial court’s entry of an order of dismissal with prejudice. The trial court’s November 2012 order of dismissal, however, expressly reserved Gran-era’s right to prosecute an appeal.

In December 2012, Granera brought the instant appeal, which we held in abeyance while the Florida Supreme Court reviewed this Court’s Delva I opinion.

In April 2014, the Florida Supreme Court rendered a decision quashing our holding in Delva I. See Delva v. Continental Group, Inc., 137 So.3d 371 (Fla.2014) {Delva II).

In light of Delva II, Sedano’s properly conceded that the trial court’s stipulated order of dismissal with prejudice should be reversed and remanded with directions that the trial court reinstate Granera’s complaint.

Reversed and remanded for proceedings consistent herewith.

      . While this appeal was being held in abeyance, the trial court entered an order on May 30, 2014, dismissing the case for lack of prosecution. We vacate that order as having been entered inadvertently and without jurisdiction.


text:
    Todrick ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1891.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2014.
    Todrick Roberts, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Appellant Todrick Roberts has filed numerous pro se motions and appeals challenging his conviction and sentence after which this Court ordered him, on October 29, 2014, to show cause why he should not be prohibited from filing any further pro se pleadings in this Court related to his conviction and sentence imposed in case number F97-4142. Upon consideration of Roberts’ response to the order to show cause, we conclude that Roberts failed to demonstrate good cause for his actions. It is therefore ordered that the Clerk of the Third District Court of Appeal shall refuse to accept any further filings that relate to case number F97-4142, unless they have been reviewed and signed by an attorney who is a licensed member of the Florida Bar in good standing.

      . See Roberts v. State, 149 So.3d 733 (Fla. 3d DCA 2014).


text:
    MONTREUX AT DEERWOOD LAKE CONDOMINIUM ASSOCIATION, INC., Appellant, v. CITIBANK, N.A., not Individually but Solely as Trustee for the Holders of Bear Stearns Asset Backed Securities 1 Trust 2006-HE3, Asset-Backed Certificates, Series 2006-HE3, Appellee.
    No. 1D13-4808.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2014.
    Ray, J., concurred in the result.

      Michael J. McCabe and Michelle P. Haines of McCabe Law Group, P.A., Ponte Vedra Beach, for Appellant.
    Todd A. Armbruster and Joshua C. Kli-gler of Moskowitz, Mandell, Salim & Si-mowitz, P.A., Fort Lauderdale, for Appel-lee.
   PER CURIAM.

After acquiring a condominium at a foreclosure sale, Appellee Citibank, as the trustee for the trust owning the property, filed a “motion to enforce final judgment of foreclosure” to determine the amount of unpaid condominium assessments owed to the association, Montreux at Deerwood Lake Condominium Association. The trial court held a hearing and granted the motion. The Association appealed and we now reverse because the trial court lacked jurisdiction to enter the order.

While Citibank’s motion claimed to seek enforcement of the final judgment, the judgment did not actually pass upon the amount of unpaid assessments. The assessments issue was neither part of the foreclosure litigation, nor reserved upon by the final judgment for later determination by the court. For this reason, no assessment-related judgment existed to be enforced in this case. Instead, what Citibank’s post-judgment motion really sought was the imposition of new assessment-related conditions and duties on the parties here, which the order on appeal addressed and calculated for the first time.

Because Citibank filed its motion for the determination of unpaid assessments almost six months after the deadline for altering or amending the judgment, the trial court lacked jurisdiction to determine the issue. See Fla. R. Civ. P. 1.530; see also 14302 Marina San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd., 92 So.3d 320 (Fla. 1st DCA 2012) (holding that the trial court lacked jurisdiction to entertain a “motion for clarification” on the issue of liability for condominium fees and assessments that was filed three months after entry of judgment); Central Mortg. Co. v. Callahan, 39 Fla. L. Weekly D1478, 155 So.3d 373, 2014 WL 3455485 (Fla. 3d DCA 2014) (affirming the trial court’s conclusion that it lacked jurisdiction to determine assessments). For this reason, we QUASH the order on appeal, leaving the final judgment of foreclosure undisturbed.

THOMAS, and OSTERHAUS, JJ., concur.

RAY, J., concurs in result only.


text:
    Eddie C. DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2364.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2014.

      Eddie C. Davis, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Kristen Lynn Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Davis v. State, 1D14-1496, 2014 WL 7188249.

PADOVANO, MARSTILLER and OSTERHAUS, JJ., concur.


text:
    CITY OF MIAMI BEACH and Johns Eastern Company Inc., Appellants, v. Anthony MARTEN, Appellee.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2014.
    Luis F. Estrada of Angones, McClure & Garcia, P.A., Miami, for Appellants.
    Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Appel-lee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Servicing Agent (E/SA) challenges an award of penalties and interest for the alleged late payment of impairment income benefits (IIBs) paid to Claimant by the E/SA under section 440.15(3), Florida Statutes (Supp.1996). All IIBs are based on the permanent impairment rating (PIR) attributable to the workplace injury. § 440.15(3)(a), Fla. Stat. (Supp.1996). Section 440.15(3)(a)l. provides that once the claimant reaches the date of maximum medical improvement (MMI), IIBs are “due and payable within 20 days after the carrier has knowledge of the [PIR].” Here, the Judge of Compensation Claims (JCC) erroneously concluded that IIBs were paid late because payment was made more than twenty days from the date of maximum medical improvement (MMI) for the two PIRs based on Claimant’s workplace injuries. It is undisputed, however, that the E/SA paid IIBs within twenty days of obtaining knowledge of the PIRs assigned by Claimant’s independent medical examiner. Previously, authorized physicians indicated that Claimant did not have any PIR relative to the workplace injuries. Because the plain language of the statute makes payment due within twenty days of knowledge of any PIR, the E/SA’s payment of IIBs here was timely and no penalties, or interest for late payment are due. Accordingly, we REVERSE the order below.

PADOVANO, RAY, and MAKAR, JJ., concur.


author: NORTHCUTT, Judge.

text:
    TERN BAY COMMUNITY DEVELOPMENT DISTRICT, Appellant, v. RYANGOLF CORPORATION, Appellee.
    No. 2D13-4436.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2014.
    Scott D. Clark and Mitchell E. Albaugh of Clark, Abaugh & Rentz, LLP, Winter Park, for Appellant.
    Paul Woodson of Boyd & Jenerette, P.A., Coconut Creek, for Appellee.
   NORTHCUTT, Judge.

Tern Bay Community Development District (CDD) challenges a judgment entered after a jury awarded damages to Ryangolf Corporation on its breach of contract claim. We reverse a portion of the damages award, and we also direct the court to strike the provision that purports to allow Ryangolf to execute on CDD’s property. We affirm the judgment in all other respects without further discussion.

Two entities were involved in developing Tern Bay, a project that was envisioned as a residential community with a golf course and other amenities. Tern Bay, LLC (LLC), a private company, was responsible for creating the golf course, pools, tennis courts, clubhouses, private roadways, fountains, hardscape, and security. CDD is a community development district created by the Florida Land and Water Adjudicatory Commission pursuant to chapter 190, Florida Statutes (2004). It was in charge of developing the Tern Bay project’s infrastructure, i.e., public roadways, water management, wetlands, utilities, landscape, and professional services. In 2004, both CDD and LLC contracted with Ryangolf to construct the improvements to the property.

The development was never completed. In December 2007, Ryangolf sued both CDD and LLC for breach of contract, alleging that they had failed to pay in excess of $2,000,000 owed for work done on the property. Ryangolf also filed a claim of lien against the property and sought to foreclose that lien against LLC. It eventually dropped LLC from the lawsuit in 2010, presumably because that company was insolvent. Meanwhile, in 2008 CDD sued LLC for amounts it was owed and to foreclose LLC’s interest in the property, joining all lenders and contractors that had liens against the property. The court entered a judgment of foreclosure in CDD’s favor in 2010.

Ryangolfs suit was put on hold while CDD’s action against LLC was pending, but it resumed when the foreclosure action was completed. By the time the case went to the jury, Ryangolf had honed its request for money damages to $389,881.27, comprising $109,061.50 for additional work performed on CDD’s behalf and $280,819.77 for money allegedly owed by CDD for invoices that had been mistakenly charged to LLC due to coding errors. The jurors awarded the exact amount requested. We affirm without comment the damages awarded for additional work. We reverse the award for $280,819.77.

The evidence at trial disclosed that during the course of construction, Ryangolf periodically submitted itemized payment applications to the project manager. For each item in an application, the manager determined whether CDD or LLC was responsible for payment and charged the entities accordingly. After thirteen invoices were paid, the property manager requested that Ryangolf begin submitting separate invoices — one for work done for CDD, another for work done for LLC. No one disputes that the first thirteen applications were paid in full. At trial, an auditor established that the property manager had miscoded some requests in applications five through eight (or ten — the auditor’s testimony was somewhat unclear). The result of these coding errors was that LLC paid Ryangolf for work that should have been billed to CDD, in the amount of $280,819.77.

Having been paid for these items of work, albeit by the wrong entity, Ryangolf was not entitled to recover for them again in its lawsuit against CDD. If LLC paid Ryangolf for services rendered on behalf of CDD, then LLC, not Ryangolf, had a claim against CDD. LLC’s payment of CDD’s debt to Ryangolf essentially resulted in an equitable subrogation in which “the party discharging the debt stands in the shoes of the person whose claims have been discharged and thus succeeds to the right and priorities of the original creditor.” See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999). Compensating Ryangolf for the same work from both LLC and CDD resulted in a double payment. We are mindful of Ryangolf s assertion that LLC failed to pay far more than this amount on its contract. But the fact that Ryangolf cannot collect from LLC because it is insolvent could not justify an award of damages for money it has already been paid. Accordingly, we reverse the judgment to the extent that it awards Ryangolf compensation from CDD in the amount of $280,819.77.

We also reverse the portion of the judgment that permits Ryangolf to execute its judgment against CDD’s property. Section 190.044 provides that all property owned by a community development district “shall be exempt from levy and stay by virtue of an execution, and no execution or other judicial process shall issue against such property.” Accordingly, the provision in the judgment stating “let execution issue” is erroneous and must be stricken.

Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.

ALTENBERND and WALLACE, JJ., Concur.