text:
    Mohammad SALAUDDIN, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D13-274.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.
    Andrea H. Dueñas of Law Office of A. Dueñas, P.A., Lantana, for appellant.
    Travis Halstead of McCalla Raymer, LLC, Orlando, for appellee.
   PER CURIAM.

Appellant, Mohammad Salauddin (“the homeowner”), appeals the trial court’s order granting final judgment in favor' of Bank of America (“the bank”), specifically as to the amount of interest the trial court ordered. The homeowner argues that, since the bank did not produce evidence of a change in the interest rate, the trial court erred in adopting the interest amount set forth in the bank’s proposed final judgment. We agree and reverse.

The bank filed a one count mortgage foreclosure complaint based on a mortgage and note executed by the homeowner. The note was an adjustable rate note, and based on its terms, the yearly interest rate was set at eight percent. However, beginning on May 1, 2012, and every six months thereafter, the interest rate would change based on an index. The note stated that although the interest rate could change, it could never be less than five percent or greater than thirteen percent.

In June 2018, a trial was held on the mortgage foreclosure count. At trial, the homeowner’s payment history was entered into evidence, as well as the note, and the trial court also took judicial notice of the original note which had previously been filed with the court. The bank’s representative also testified that the date of the last payment made by the homeowner was in December 2007, and therefore, the default date was in January 2008.

At the end of the bank’s case, the homeowner moved for an involuntary dismissal based on the fact that the bank failed to prove the interest rate. The motion was denied. After the homeowner rested his case without presenting any evidence, the homeowner requested that any interest contained within the proposed final judgment, prepared by the bank, be removed, because the bank failed to prove the interest rate. The following exchange occurred:

HOMEOWNER’S COUNSEL: Judge, it’s just our position though that the actual evidence at the trial did not support the interest rate.
THE COURT: Well, if the — okay. Now, if the business record is admitted in evidence, all of the figures in there are admissible as well.

The trial court entered a final judgment of foreclosure in favor of the bank, ordering an interest award of $106,499.87. The homeowners timely filed a notice of appeal.

The standard of review for a motion for involuntary dismissal made at trial is de novo. See Marlin Cnty. v. Polivka Paving, Inc., 44 So.3d 126, 131 (Fla. 4th DCA 2010) (explaining that the standard of review for a motion for directed verdict is de novo); Charlotte Asphalt, Inc. v. Cape Cave Corp., 406 So.2d 1234, 1236 (Fla. 2d DCA 1981) (explaining that motions for a directed verdict and motions for an involuntary dismissal at a nonjury trial are governed by the same principles).

Since the note and payment history were entered into evidence at trial, there was a basis for the court to determine the starting interest rate and the remaining amount owed by the homeowner. What was not presented at trial was whether there were any changes in the interest rate based on the adjustable rate clause in the note, and what those changes were.

Since the amount of interest from the time the homeowner defaulted on the loan until May 1, 2012, was based on the starting fixed interest rate (eight percent), the amount of interest owed for those months is supported by the note and payment history. However, the amount of the actual interest rate after May 2012, is unknown, and there was no testimony or evidence provided at trial as to the actual interest rate for those months. Therefore, since the note stated that the interest rate would not drop below five percent, this percentage was the only proof the bank supplied at trial, and the trial court should have used this interest rate to calculate the amount of interest after May 1, 2012. We do not agree with the bank that the difference between the amount of interest ordered and the amount based on the five percent interest rate is de minimis.

We therefore reverse the trial court’s order as to the amount of interest, and remand for the trial court to calculate the interest amount (five percent after May 1, 2012) consistent with this opinion.

Reversed and remanded.

WARNER, MAY and CONNER, JJ., ' concur.


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    William C. SAMPLE, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D13-2883.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.

      Ronnie D. Dykes of Ronnie D. Dykes, P.A., Boca Raton, for appellant.
    Amanda Renee Murphy of Butler & Hosch, P.A., Orlando, for appellee.
   MAY, J.

A borrower appeals a final summary judgment of foreclosure. He argues the trial court erred in entering summary judgment because the bank failed to overcome his fourteen affirmative defenses. While we disagree with him about thirteen of them, we do agree that one of the affirmative defenses precluded the entry of summary judgment. We therefore reverse and remand.

The borrower and Mortgage Electronic Registration Systems, Inc., acting solely as nominee for Countrywide Bank, N.A. (“MERS”), executed a mortgage and note. When the borrower failed to pay his monthly payment, MERS sent a notice of default to the borrower.

Several months later, MERS executed an assignment of mortgage in favor of the bank. The bank filed a complaint seeking to foreclose the mortgage, reestablish the lost note, reform the mortgage, and for damages on the promissory note. The bank voluntarily ■ dismissed the lost note count and filed the original note, mortgage, and assignment of mortgage. The borrower propounded a request for production; the bank moved for a protective order.

More than three years later, the bank moved for summary judgment. In support of its motion, the bank filed the payment history, affidavit of costs, and affidavit of indebtedness. The borrower then filed an answer and asserted fourteen affirmative defenses. The bank moved to strike the affirmative defenses and in the alternative replied to them. The borrower filed an opposition to summary judgment, a motion for continuance and mediation, and a motion to compel better responses to his request for production.

The trial court heard the bank’s motion and entered a final summary judgment for the bank. The final judgment contained the legal description requested in the reformation count of the complaint. The trial court did not rule on the borrower’s affirmative defenses, the bank’s motion for protective order, or the borrower’s motion to compel better responses. The borrower moved for rehearing or to set aside the order, which was denied. The borrower now appeals.

The borrower argues error in the entry of final summary judgment because of his asserted affirmative defenses and pending discovery. The bank responds that the affirmative defenses lacked the requisite specificity to be legally sufficient and were refuted. The bank also asserts that having met its burden to provide competent evidence in support of its complaint, the borrower failed to show the existence of a genuine issue of material fact.

We have de novo review. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170,172 (Fla. 4th DCA 2012).

“When a party raises affirmative defenses, ... ‘summary judgment should not be granted where’” the affirmative defenses are not refuted. Alejandre v. Deutsche Bank Trust Co. Ams., 44 So.3d 1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co., 516 So.2d 983, 984 (Fla. 4th DCA 1987)). “[T]he plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.” Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995) (citing Cuf-feri, 516 So.2d at 984).

In his fourteenth affirmative defense, the borrower asserted that the mortgage attached to the complaint did not contain the legal description of his property, prohibiting the bank from foreclosing on it. The bank pled a count for reformation of the mortgage, but the motion for summary judgment did not request reformation of the mortgage. And, the record, including the bank’s affidavits, failed to either prove reformation of the mortgage or refute the borrower’s affirmative defense.

The bank admitted the mortgage did not include an accurate legal description, and alleged the inaccurate legal description was a mutual mistake. The bank now asserts that its motion for summary judgment asserted the lack of any genuine issue of material fact and was sufficient to reform the mortgage. However, the borrower denied the bank’s allegation of a mutual mistake and asserted the incorrect legal description as his fourteenth affirmative defense.

The fourteenth affirmative defense was clear and specific. Although one of the bank’s affidavits attested that the complaint’s allegations were true and correct, the affiant did not, and could not, attest that the incorrect legal description was a mutual mistake. That is because one person cannot attest to another person’s knowledge. See West Edge II v. Kunder-as, 910 So.2d 953, 954 (Fla. 2d DCA 2005). In short, a genuine issue of material fact existed, precluding summary judgment.

“A court of equity has the power to reform a written instrument where, due to a mutual mistake, the instrument as drawn does not accurately express the true intention or agreement of the parties to the instrument.” Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366, 1369 (Fla.1987) (citations omitted). “This principle ... can be applied to correct an erroneous land description in order to protect a person’s rights in real property.” Id. (citations omitted). This does not however eliminate the requirement that the motion for summary judgment state with particularity the grounds upon which it is based. Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 214 (Fla. 5th DCA 2011) (quoting Fla. R. Civ. P. 1.510(c)).

In Willis v. Bank of New York Mellon, 115 So.3d 1075 (Fla. 4th DCA 2013), we addressed a similar issue. The trial court granted reformation of a mortgage to include a correct legal description as part of a summary judgment of foreclosure. Id. at 1075. “The appellee [blank’s motion for summary judgment and accompanying notice, however, did not raise the issue of reformation as an issue to be addressed at the summary judgment hearing. Because of the lack of notice, the court erred in reforming the mortgage to add a legal description.” Id. (citation omitted).

Here, the bank’s motion for summary judgment was likewise insufficient to put the borrower on notice of the bank’s intention to reform the mortgage. Because the motion failed to provide notice to the borrower, and because the bank failed to prove reformation or refute the affirmative defense of an incorrect legal description, the trial court erred in entering final summary judgment.

We therefore reverse the final summary judgment of foreclosure and remand the case for further proceedings. We find no merit in the other issues raised.

Reversed and Remanded.

STEVENSON and KLINGENSMITH, JJ., concur.


author: GERBER, J.

text:
    SUNSPLASH EVENTS INC., a Florida corporation, and Suzanne E. Snisky-Houghtaling, Appellants, v. Pedro ROBLES, Appellee.
    No. 4D13-4302.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.

      Enrique Nieves, III of King, Nieves & Zacks, PLLC, West Palm Beach, for appellants.
    Jana Marie Fried and Laura E. Eggnatz of Jfried Law, Weston, for appellee.
   GERBER, J.

The defendants appeal from the circuit court’s order denying their motion to compel arbitration of the plaintiffs claims arising from the parties’ bill of sale agreement. The defendants argue that an arbitration clause contained in the parties’ separate employment agreement was broad enough to encompass claims arising from the bill of sale agreement.- We agree with the defendants and reverse for entry of an order compelling arbitration of the plaintiffs claims arising from the bill of sale agreement.

As alleged in the second amended complaint, the plaintiff entered into an employment agreement with defendant Sunsplash (the “company”). The employment agreement (attached to the second amended complaint) provided as follows regarding the possibility of the plaintiff owning a competing business:

Employee warrants that, as of the date of this Agreement, he has no ownership interest in ... any business that competes with the Company ....
During the period of his employment by the Company, and for a period of two years immediately following the termination of such employment for whatever reason, Employee shall not have any direct or indirect ownership or other financial interest in any business which competes with the Business of the Company ....

The employment agreement also contained the following arbitration provision, in pertinent part:

[T]he Parties hereby agree and specifically stipulate that all differences, claims or matters of dispute relating to the performance of duties and/or benefits arising between the Parties to this Agreement contained herein shall be submitted to a mutually acceptable arbitrator ....

(emphasis added).

Contemporaneous with the parties’ execution of the employment agreement, the parties also executed a bill of sale agreement regarding the plaintiffs existing business. Under the bill of sale agreement (attached to the second amended complaint), the plaintiff agreed to transfer ownership of his inventory, goods, and materials to the company in exchange for cash and the assumption of the plaintiffs rental and other obligations. Consistent with the employment agreement, the bill of sale agreement provided that the plaintiff agreed to “cease and desist” in the operation of his business. However, unlike the employment agreement, the bill of sale agreement did not contain an arbitration provision.

In the second amended complaint, the plaintiff sued the company and its president under various claims related to the bill of sale agreement. In sum, the second amended complaint alleged that the company failed to pay the plaintiff under the employment agreement or the bill of sale agreement, and that the company’s president made numerous misrepresentations to the plaintiff to induce him to enter into the employment agreement and the bill of sale agreement.

The defendants moved to dismiss the second amended complaint and compel arbitration of the claims relating to the bill of sale agreement. The defendants argued that the employment agreement’s arbitration provision, requiring arbitration of “all differences, claims or matters of disT pute relating to the performance of duties and/or benefits arising between the Parties to this Agreement contained herein,” was “written broadly to encompass all matter[s] between the parties.... Therefore, the issue of the bill of sale is arbitrable and this case must be dismissed.”

The plaintiff, in response to the motion to dismiss and compel arbitration, argued that his claims related to the bill of sale agreement were “not arbitrable issues as they do not relate to matters specifically contemplated by the Employment Agreement.” According to the plaintiff:

Plaintiffs claims related to the Bill of Sale — a wholly separate and independent contract — clearly do not have a contractual nexus to the Employment Agreement as they do not present circumstances in which the resolution of those claims would require either reference to, or construction of[,] the Employment Agreement.... The Employment Agreement does not reference the Bill of Sale, nor does the Bill of Sale reference the Employment Agreement. The Bill of Sale contains terms and conditions that are solely related to the purchase and transfer of ownership of inventory housed in two warehouses, and for the rental of those warehouses. The Bill of Sale says nothing regarding Plaintiffs employment with [the company], and contains no provisions that even remotely suggest that reference to the Employment Agreement would be required should a dispute regarding the terms and conditions of the Bill of Sale arise. Likewise, the Employment Agreement contains no provisions that even remotely suggest that any other contracts or agreements, including the Bill of Sale, would require reference to the Employment Agreement should a dispute regarding the terms and conditions of such other contract or agreement arise. The Employment Agreement contains terms and conditions that are solely related to Plaintiffs employment with [the company]. Therefore, Plaintiffs claims related to the Bill of Sale are not arbitrable issues, and Plaintiffs Second Amended Complaint should not be dismissed.

The circuit court entered an order denying the defendants’ motion to dismiss the second amended complaint and compel arbitration.

This appeal followed. The defendants argue that the employment agreement’s broadly written arbitration provision encompasses claims bearing a significant relationship or nexus to the employment agreement. According to the defendants:

[T]he [Plaintiffs] claims arise from the same operative facts. The claims involve alleged misrepresentations to induce Plaintiffs employment and a bill of sale. The employment agreement precluded the Plaintiff (a former competitor) from working, owning or operating any other business [which competes with the company]. The bill of sale itself contains a specific clause where [the] Plaintiff must cease and desist from the sale of any of the inventory located at the Plaintiffs warehouse unless for the purpose of [the company], and requires the closure of [the] Plaintiffs business. The parties^] relationship, [and] the language of the bill of sale effective the same day as the employment agreement, satisfies the [“]relating to the performance of duties, and/or benefits[”] under the plain language of the arbitration clause. A significant relationship exists and this case must be reversed.

Upon our de novo review of the four corners of the second amended complaint and its attached employment agreement and bill of sale agreement, we agree with the defendant’s argument. See Heller v. Blue Aerospace, LLC, 112 So.3d 635, 636 (Fla. 4th DCA 2013) (“A trial court’s construction of an arbitration provision and denial of a motion to compel arbitration are reviewed de novo.”) (citation omitted); Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 592-93 (Fla.2013) (review of an order on a motion to dismiss and compel arbitration “is limited to the four corners of the complaint and its incorporated attachments”).

“Generally, the three fundamental elements that must be considered when determining whether a dispute is required to proceed to arbitration are: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Jackson, 108 So.3d at 593 (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). Here, the question is whether the plaintiffs claims relating to the bill of sale agreement create an arbitrable issue under the employment agreement’s arbitration provision.

Our answer to that question depends upon our determination of whether the employment agreement’s arbitration provision is narrow in scope or broad in scope. See Jackson, 108 So.3d at 593 (“Two basic types of arbitration provisions have emerged: (1) provisions with language and application narrow in scope, and (2) provisions with language and application broad in scope.”). As our supreme court held in Jackson:

An arbitration provision that is considered to be narrow in scope typically requires arbitration for claims or controversies “arising out of’ the subject contract. This type of provision limits arbitration to those claims that have a direct relationship to a contract’s terms and provisions. In contrast, an arbitration provision that is considered to be broad in scope typically requires arbitration for claims or controversies “arising out of or relating to ” the subject contract. The addition of the words “relating to” broadens the scope of an arbitration provision to include those claims that are described as having a “significant relationship” to the contract — regardless of whether the claim is founded in tort or contract law.
A “significant relationship” between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a “contractual nexus” between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.

Id. (internal citations omitted; emphasis added to second paragraph).

Applying our supreme court’s guidance here, we hold that the plaintiffs claims relating to the bill of sale agreement fall within the scope of the employment agreement’s arbitration provision for four reasons.

First, as with the contract at issue in Jackson, the employment agreement here has a broad arbitration provision because it subjects to arbitration “all differences, claims or matters of dispute relating to the performance of duties and/or benefits arising between the Parties to this Agreement contained herein.” (emphasis added). See id. at 594 (“In this case, ... the contract at issue has a broad arbitration provision because it subjects ‘[a]ll controversies, claims, and other matters in question arising out of or relating to this transaction or this Contract or its breach’ to binding arbitration.”).

Second, the plaintiffs claims relating to the bill of sale agreement have a significant relationship to the claims relating to the employment agreement. According to the second amended complaint, the numerous misrepresentations alleged to have been made by the company president to induce the plaintiff into entering the bill of sale agreement are the same misrepresentations alleged to have been made to induce the plaintiff into entering the employment agreement. As a result, the claims relating to the bill of sale agreement are inextricably intertwined with the transaction from which the employment agreement emanated and the employment agreement itself. Cf. id. at 595 (“[A]l-though the fraud claim is based on common law fraud, it is inextricably intertwined with both the circumstances that surrounded the transaction from which the contract emanated and the contract itself.”) (footnote omitted).

Third, resolution of the plaintiffs claims relating to the bill of sale agreement requires the construction and consideration of duties arising under the employment agreement. The bill of sale agreement provided that the plaintiff agreed to “cease and desist” in the operation of his business. Consistent with the bill of sale agreement, the employment agreement imposed upon the plaintiff the duties to warrant that he had “no ownership interest in ... any business that competes with the Company” and that, during the period of his employment by the company, and for a period of two years immediately thereafter, he would not have “any direct or indirect ownership or other financial interest in any business which competes with the Business of the Company.” Given this consistency of duties between the bill of sale agreement and the employment agreement, the determination of whether the plaintiff complied with the “cease and desist” duty of the bill of sale agreement may require a determination of whether the plaintiff complied with the non-compete provisions of the employment agreement. Put another way, an issue exists as to whether the plaintiffs performance of the “cease and desist” duty under the bill of sale agreement constituted “performance of duties ... arising between the Parties” as described in the employment agreement’s arbitration provision. Cf. id. at 594 (“[Resolution of the fraud claim requires the construction and consideration of duties arising under the contract.”).

Fourth, to the extent any ambiguity may exist in the scope of the employment agreement’s arbitration provision, we resolve that ambiguity in favor of arbitration. See id. at 598 (“Courts generally favor such provisions, and will try to resolve an ambiguity in an arbitration provision in favor of arbitration.”) (citations omitted).

Based on the foregoing, we reverse for entry of an order compelling arbitration of the plaintiffs claims arising from the bill of sale agreement as pled in the second amended complaint. It is not necessary for the circuit court to dismiss the plaintiffs action itself, as we expect the prevailing party in the arbitration will return to the circuit court at some point for confirmation of the arbitration decision.

Reversed and remanded.

LEVINE and KLINGENSMITH, JJ., concur.


author: STEVENSON, J.

text:
    Robert DRESCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-78.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.
    Jason A. Kaufman of Kaufman Legal Group, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Robert Dresch (“Defendant”) appeals from his conviction and sentence on the charge of corruption by threat. He was sentenced to five years in prison. The State agrees with Defendant that the crime of corruption by threat is not a forcible felony within the meaning of section 776.08, Fla. Stat. (2013), because the “offense may be committed without the use or threat of physical force.” State v. Hearns, 961 So.2d 211, 215 (Fla.2007). Since the crime of corruption by threat is not a forcible felony within the meaning of section 776.08, and because Defendant scored less than 22 points on his score-sheet, the trial court was required to make written findings that a nonstate, prison sanction would impose a danger to the public before sentencing Defendant to a' state correctional facility. See 775.082(10), Fla. Stat. (2018). The trial court failed to enter written findings, even after Defendant raised this issue in his rule 3.800(b)(1) motion. Accordingly, we reverse and remand to the trial 'court for resentencing. On remand, the trial court is not permitted to impose an upward departure sentence. See Bryant v. State, 148 So.3d 1251 (Fla. 2014) (holding a trial court is not permitted on remand to impose an upward departure sentence under section 775.082(10) when it failed to enter written findings during the initial sentencing).

Additionally, we note that the State failed to come forward with any evidence that Defendant committed two of the prior crimes listed on his scoresheet. Defendant challenged the inclusion of these crimes, which added 0.4 to his score, in his rule 3.800(b)(1) motion. Once contested, the State was required to provide competent evidence that Defendant had committed these crimes. See Lyons v. State, 823 So.2d 250, 250-51 (Fla. 4th DCA 2002) (holding the state had the burden of providing competent evidence that the defendant had committed a past conviction, when the defendant challenged the inclusion of the past conviction in a rule 3.800(b) motion). On remand, the State is required to provide competent evidence of these prior crimes.

Reversed and remanded.

CIKLIN and GERBER, JJ., concur.

      . Section 776.08, Fla. Stat. (2013), provides:
      "Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

      . Section 775.082(10), Fla. Stat. (2013), provides:
      If a defendant is sentenced for an offense committed on or after
      July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.


author: TAYLOR, J.

text:
    GREEN EARTH TECHNOLOGY SOLUTIONS, INC., Appellant, v. GELTECH SOLUTIONS, INC. and Fireice Gel, Inc., Appellees.
    No. 4D13-3929.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.

      Brigid F. Cech Samóle and Rachel A. Canfield of Greenberg Traurig, P.A., Miami, and Paul B. Ranis of Greenberg Trau-rig, P.A., Fort Lauderdale, for appellant.
    William A. Fleck of Jupiter Legal Advocates, Jupiter, and John K. Copeland of Kramer, Sopko & Levenstein, P.A., Stuart, for appellees.
   TAYLOR, J.

Appellant, Green Earth Technology Solutions, petitioned the trial court to partially vacate the arbitration award entered on its breach of contract claim against appel-lees, GelTech Solutions and Firelee Gel. Specifically, appellant sought to vacate that portion of the award finding that neither party prevailed in the arbitration and denying prevailing party attorney’s fees and costs to appellant. The trial court denied appellant’s application to partially vacate the award, concluding that “a prevailing party determination is within the scope of the Arbitration Panel’s jurisdiction,” and that “[e]ven if the Arbitration Panel erroneously concluded that there was no prevailing party, this is not a basis on which the arbitration award may be reversed.” We agree and affirm the trial court’s order.

“To vacate an arbitration award, a party must establish one of the enumerated statutory grounds under section 682.13(1), Florida Statutes.” Talel Corp. v. Shimo-novitch, 84 So.3d 1192, 1193 (Fla. 4th DCA 2012). The grounds for vacating an arbitration award are as follows:

(a) The award was procured by corruption, fraud, or other undue means;
(b) There was:
1. Evident partiality by an arbitrator appointed as a neutral arbitrator;
2. Corruption by an arbitrator; or
3. Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;
(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to hear evidence material to the controversy, or otherwise conducted the hearing contrary to s. 682.06, so as to prejudice substantially the rights of a party to the arbitration proceeding;
(d) An arbitrator exceeded the arbitrator’s powers;
(e) There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under s. 682.06(3) not later than the beginning of the arbitration hearing; or
(f) The arbitration was conducted without proper notice of the initiation of an arbitration as required in s. 682.032 so as to prejudice substantially the rights of a party to the arbitration proceeding.

§ 682.13(1), Fla. Stat. (2013).

■ Appellant relies solely on subsection (d) to vacate the award, arguing that the arbitration panel exceeded its powers in finding that “no party prevailed, as that issue was not properly before the Arbitration Panel.”

Contrary to appellant’s assertion on appeal, the arbitration panel acted within its powers in determining the issue of attorney’s fees. The parties agreed at their Case Management Conference that “the arbitrators shall determine the issues of entitlement to and amount of the prevailing party’s reasonable attorney’s fees and taxable costs.... ” In determining the threshold issue of whether a prevailing party existed, however, the panel found that neither party was a prevailing party. We need not examine the merits of appellant’s argument that the contract litigation had to result in a prevailing party. Assuming arguendo that the arbitration panel erroneously concluded that there was no prevailing party, this is not a basis upon which an arbitration award may be vacated or reversed. See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1329-30 (Fla.1989) (holding that an arbitration award may not be vacated or reversed based on an arbitrator’s error of law because error of law is not one of the specific statutory grounds for vacating an award); Wells v. Castro, 117 So.3d 1233, 1238 (Fla. 3d DCA 2013) (noting that an arbitration award finding that neither party was a prevailing party could not be reversed on the ground that the arbitrator made an error of law).

Accordingly, we affirm the trial court’s order confirming the arbitration award.

Affirmed.

WARNER and MAY, JJ., concur.


author: PER CURIAM.

text:
    Duane M. BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1816.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.
    Duane M. Blake, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of grounds one through five and seven of appellant’s pro se. motion for post-conviction relief. See Fla. R. Crim. P. 3.850. However, as to ground six, we reverse and remand with directions to grant the appellant an evidentiary hearing. See Morales v. State, 731 So.2d 91 (Fla. 4th DCA 1999). In ground six, appellant alleged that trial counsel failed to call an available defense witness who would have testified that the victim of the shooting was pointing a firearm at appellant when he shot his firearm, thus potentially corroborating appellant’s asserted self-defense claim. See Morales, 731 So.2d at 92; see also Moran v. State, 750 So.2d 182, 134 (Fla. 2d DCA 2000); Balmori v. State, 985 So.2d 646, 650-651 (Fla. 2d DCA 2008); Spellers v. State, 993 So.2d 1117, 1119 (Fla. 5th DCA 2008).

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

•GROSS, CONNER and KLINGENSMITH, JJ., concur.


text:
    C.G.K., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-3436, 4D13-3440, 4D13-3441, 4D13-3442, 4D13-3443, 4D13-3444.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2014.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm without discussion appellant’s withheld adjudication of delinquency and delinquency disposition for violation of probation. However, we remand for the trial court to correct the written order to reflect the trial court’s oral pronouncement of disposition. At the violation of probation hearing, the trial court’s oral pronouncement was that it would withhold adjudication. However, it appears that due to a scrivener’s error, the trial court’s disposition indicates that “the child is adjudicated delinquent.” In criminal proceedings, where a trial court’s oral pronouncement is unambiguous, the oral pronouncement controls over the written order. See Briggs v. State, 936 So.2d 789 (Fla. 4th DCA 2006).

Affirmed and remanded for correction of written order.

WARNER, MAY and CONNER, JJ., concur.


text:
    Maria C. AMAYA, Appellant, v. Jose M. VAZQUEZ, Appellee.
    No. 3D14-860.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2014.
    Maria del Carmen Calzón, for appellant.
    Jose M. Vazquez, in proper person.
    Before WELLS, EMAS and LOGUE, JJ.
   PER CURIAM.

Appellant, Maria C. Amaya, appeals an order which (1) granted partial final summary judgment on a count for partition of real property in favor of Jose M. Vazquez and ordered a partition sale forthwith ; (2) dismissed Amaya’s counterclaim; and (3) reserved on “accounting issues, attorney’s fees and costs.”

We affirm the trial court’s order as to count one of the amended complaint, which determined that the real property is not divisible and is to be partitioned. We dismiss the appeal to the extent it seeks review of the trial court’s dismissal of Amaya’s counterclaim, as this portion of the order is interlocutory in nature, subject to change or reconsideration by the trial court, and is therefore non-final and non-appealable. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Geico Gen. Ins. Co. v. Pruitt, 122 So.3d 484 (Fla. 3d DCA 2013); Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315 (Fla. 3d DCA 1987).

Affirmed in part, dismissed in part and remanded.

      . We have jurisdiction to review this portion of the non-final order. See Fla. R. App. P. 9.130(a)(3)(C)(ii). We note that, although the trial court in its order directed the forthwith sale of the partitioned property, it has the discretion, upon proper motion, to consider staying the sale of the partitioned property until a determination on the merits of the remaining claims.


text:
    Gail RIVERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4354.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2014.
    Gail Rivers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2004).

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


text:
    Vander Alonzo JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4838.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2014.
    Vander Alonzo Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Muhammad R. MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4845.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2014.
    Muhammad R. Morris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, ROBERTS, and RAY, JJ., concur.


text:
    Muhammad R. MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5045.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2014.
    Muhammad R. Morris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Jamel A. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1192.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2014.

      Jamel A. Smith, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellant.
   PER CURIAM.

Appellant, Jamel Smith, appeals the summary denial of his three-claim motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of Smith’s second and third claims without further discussion, but reverse that portion of the order summarily denying Smith’s first claim. In that claim, Smith alleged that his trial counsel was ineffective for failing to call three alibi witnesses. Smith supported the motion with affidavits from two of the purported witnesses, as well as his own affidavit. The trial court correctly noted that Smith did not include in his affidavit any sworn statement that the witnesses were available to testify. To the extent that this was the basis for the trial court’s denial, Smith should have been given an opportunity to amend his motion. See Spera v. State, 971 So.2d 754 (Fla.2007). The trial court also discussed the affidavits and concluded that the testimony would not have made a difference at trial, in part based upon the judge’s conclusion that none of the witnesses actually accounted for Smith’s whereabouts at the time of the crime for which Smith was convicted. Contrary to the trial court’s conclusion, one purported witness, Smith’s sister, averred that Smith was with her (at her apartment) at the same time that the charged crime was taking place (at another location). We conclude that between the motion and affidavits, Smith sufficiently alleged' that counsel was ineffective for failing to investigate and call the purported witnesses. “If a motion presents a facially sufficient claim of ineffective assistance of counsel for failing to call a "witness, the movant is entitled to an evidentiary hearing unless the motion is conclusively refuted by the record or is otherwise procedurally barred.” Gutierrez v. State, 27 So.3d 192, 194 (Fla. 5th DCA 2010). “The purpose of the evidentiary hearing is to determine whether trial counsel acted reasonably in not presenting the alleged exculpatory evidence.” Perez v. State, 128 So.3d 223, 226-27 (Fla. 2d DCA 2013). On remand, the trial court is directed to either grant Smith leave to amend his first claim, pursuant to Spera, or grant an evidentiary hearing on the claim.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

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


author: ALTENBERND, Judge.

text:
    Aubrey Alvincent PIERCE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5504.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2014.
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Aubrey Pierce appeals what should be an order of revocation of probation and sentences entered on revocation. Although we conclude that there was a basis for the trial court to find that Mr. Pierce violated his probation and that the court was authorized to revoke probation as a result of several violations, the court had no authority to enter second judgments of conviction on October 11, 2013, which duplicated the judgments of conviction entered on July 23, 2012. Without entering an order of revocation of probation, the trial court had no authority to sentence Mr. Pierce to a term in prison. Accordingly, we reverse the unauthorized judgments and the amended sentences imposed on those judgments. We remand for entry of a proper order of revocation and for sentencing on that order.

The facts in this case are not complex. Mr. Pierce was charged with four felonies and a misdemeanor in June 2012. He entered into a negotiated plea agreement under which he agreed to plead guilty in exchange for a forty-eight-month term of probation. On July 23, 2012, the trial court adjudicated him guilty for all five offenses, entered judgments of guilt as to the five offenses, and sentenced Mr. Pierce to concurrent terms of forty-eight months’ probation for the felonies and twelve months’ probation for the misdemeanor. An order of probation was entered on that same day.

Thereafter, in July 2013, the Department of Corrections filed an affidavit alleging nine violations of probation, including some relating to new substantive offenses. On October 11, 2013, the trial court conducted an evidentiary hearing on these allegations. After receiving testimony from four witnesses, the trial court found violations and pronounced sentence stating:

As such, having found you to be in violation of these terms and conditions; specifically, Condition 5 times three and Condition 6 times 2,1 revoke the probation, adjudicate you guilty of Counts I, II, III, IV, and V, sir. Count V, sentence you to time served; that’s the misdemeanor. Count I, sentence you to five years Florida state prison. Count II, sentence you to five years Florida state prison consecutive to the five on Count I. Count III, sentence you to five years’ probation, consecutive to the ten years prison. And Count IV, sentence you to an additional five years consecutive probation. So it’s ten prison followed by ten probation.

The trial court did not enter an order revoking probation on these findings. Instead, it entered duplicate judgments on October 11, 2013. It then entered sentences in accordance with the oral pronouncement. Mr. Pierce appealed the judgments and sentences.

The error in this case is not new to the Thirteenth Judicial Circuit. In fairness to Judge Holder, it is likely that he is simply following procedures and using forms created by others. Eight years ago, we explained to the Thirteenth Judicial Circuit that we were “not aware of any rule or statute that expressly permitted] a circuit court to enter multiple judgments of conviction for the same offense in one case” and we further explained problems with this practice. See Dawkins v. State, 936 So.2d 710, 712 (Fla. 2d DCA 2006). For nearly ten years, the supreme court has provided a standard form order of revocation of probation that the circuit courts are expected to use. See Fla. R. Crim. P. 3.995.

Over the years, we have repeatedly pointed out to the Thirteenth Judicial Circuit that it is using forms that are not in compliance with the rules of procedure. See Badger v. State, 23 So.3d 813 (Fla. 2d DCA 2009); Johnson v. State, 17 So.3d 1290 (Fla. 2d DCA 2009). We have made this observation in cases arising from at least one other circuit as well. See Bush v. State, 135 So.3d 1108 (Fla. 2d DCA 2013); Kiburis v. State, 18 So.3d 1254 (Fla. 2d DCA 2009).

In Jackson v. State, 56 So.3d 65 (Fla. 2d DCA 2011), the author of this opinion pointed out in a concurrence that the Department of Corrections was contributing to this problem by the language used in the form it required the clerks of the circuit courts to utilize to commit a defendant to the Department’s custody. Id. at 66-67 (Altenbernd, J., concurring) (citing section 944.17(4), Florida Statutes (2010)). The Department appears to have responded to this concern by revising its form, the “Uniform Commitment to Custody of Department of Corrections.” That form, DC6-306 (Revised 5/3/11), now includes a sentence stating: “In addition to the Original Judgment, if judicial supervision has been revoked subsequent to the entry of the judgment adjudicating guilt, a certified copy of the order revoking supervision (rather than a duplicative judgment adjudicating guilt) is also attached in support of this commitment.” http://www.dc.flcjn. net/commitment.html.

Nevertheless, more than two years after the Department revised the form, the commitment document signed on October 11, 2013, on behalf of the Clerk of the Court for the Thirteenth Judicial Circuit, is not in accordance with the Department’s form. By omitting the required sentence and sending the impermissible duplicative judgment, the commitment papers convinced the Department to receive a prisoner whom the Department otherwise would have rejected for lack of an order of revocation.

Thus, we reverse the unauthorized judgments and sentences and remand for the trial court to enter a proper revocation order and sentences. We note that at the end of the revocation hearing the trial court orally pronounced violations of condition six as well as condition five. The affidavit does not appear to allege violations of condition six. However, it does allege numerous violations of condition five, and we recognize that those violations would be sufficient to support an order of revocation.

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

KHOUZAM and MORRIS, JJ., Concur.

      . During the pendency of this appeal, Mr. Pierce filed and this court granted a motion to temporarily relinquish jurisdiction, which sought relinquishment to allow the trial court to modify Mr. Pierce’s sentences. During the thirty-day relinquishment period, the trial court entered amended sentences on counts one through four, sentencing Mr. Pierce to 24.325 months’ imprisonment on each count all to run concurrently.

      . We note that the judge did not need to "adjudicate” Mr. Pierce guilty. That had already occurred at the first sentencing hearing. A second pronouncement of the adjudication of guilt is probably a harmless practice, but a defendant needs to be adjudicated guilty at a violation of probation hearing only if adjudication was withheld at the earlier sentencing hearing.

      .We actually have considerable confidence Judge Holder will be able to solve this long-term problem that this court obviously has been unable to solve.


author: KELLY, Judge.

text:
    Scott Allen GALARZA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3516.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2014.
    Rehearing Denied Dec. 10, 2014.

      Howard L. Dimmig, II, Public Defender, and Maggie Jo Hilliard, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.1
   KELLY, Judge.

Scott Galarza appeals from the trial court’s summary denial of his motion to withdraw plea. He argues that the court erred in ruling on the motion in his absence and without appointing conflict-free counsel to represent him during a full evi-dentiary hearing. We reverse and remand for further proceedings.

After Galarza admitted violating one of the conditions of his community control, the trial court accepted Galarza’s admission, revoked his community control, and sentenced him to five years in prison. Galarza filed a pro se motion to withdraw his plea and for new counsel claiming that his trial counsel misled him to believe that he would receive only county jail time if he entered an open admission to violating his community control. The trial court denied the motion in Galarza’s absence without a hearing.

Galarza filed his motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(0, which allows a defendant who has admitted a violation of community control to withdraw his admission on certain specified grounds. See Sheppard v. State, 17 So.3d 275 (Fla. 2009) (applying rule 3.170(0 to a motion to withdraw the defendant’s admission to violating his community control). Allegations of mistaken advice by counsel concerning the length of a defendant’s sentence may be a basis for allowing the defendant to withdraw his plea. Iaconet-ti v. State, 869 So.2d 695, 699 (Fla. 2d DCA 2004). Once a defendant files a facially sufficient motion alleging an adversarial relationship, the trial court must appoint conflict-free counsel, unless the record conclusively refutes the defendant’s allegations. Sheppard, 17 So.3d at 287. Further, “[a] motion to withdraw plea is a critical stage of the proceedings at which a defendant is entitled to be present and to have counsel represent him.” Krautheim v. State, 38 So.3d 802, 804 (Fla. 2d DCA 2010) (citing Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003)).

Galarza’s allegation that he was led by defense counsel to believe he would receive only jail time by pleading open to the court must be taken as true since the allegation is not refuted by the record. See id. at 805. The fact that Galarza was advised in his original plea colloquy of the maximum and minimum penalties he faced was not determinative of his understanding of his possible sentence upon violation of his community control. See id. (noting that, although the record showed the defendant was advised during the plea colloquy of the maximum possible penalties he could receive if he violated his probation, the record did not show what discussions defense counsel had with the defendant before the defendant entered his admission to violating his probation).

Accordingly, we reverse the order denying Galarza’s motion to withdraw plea and we remand for an evidentiary hearing on the motion at which Galarza shall be entitled to be present and represented by conflict-free counsel.

Reversed.

SILBERMAN and BLACK, JJ., Concur.


author: KHOUZAM, Judge.

text:
    David Paul SNIPES, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-159.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2014.
    David Paul Snipes, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   KHOUZAM, Judge.

David Paul Snipes appeals the postcon-viction court’s order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Because Snipes alleged he received a mandatory sentence of life without the possibility of parole for a first-degree murder he committed at the age of seventeen, we reverse the postconviction court’s order summarily denying the claim as untimely and remand the case for further proceedings consistent with Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014). We affirm the court’s order in all other respects.

In Toye, this court concluded that Miller applied retroactively and certified conflict with Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012) (en banc), and Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012). Toye, 133 So.3d at 547. We again certify conflict with Gonzalez and Geter, and add to our certification Falcon v. State, 111 So.3d 973 (Fla. 1st DCA), review granted, 137 So.3d 1019 (Fla.2013).

Affirmed in part, reversed in part, and remanded. Conflict certified.

LaROSE and MORRIS, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-2125.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2014.
   SILBERMAN, Judge.

Anthony Williams appeals the order summarily denying his motion to correct jail credit filed under Florida Rule of Criminal Procedure 3.801. We reverse.

Williams was arrested on May 27, 2011, and later charged with criminal mischief, burglary of a structure, possession of burglary tools, and grand theft. On June 1, 2011, he bonded out of jail. After Williams failed to appear, a warrant for his arrest was issued, and it was served on March 15, 2013. Williams pleaded to the offenses and was sentenced on July 12, 2013. He was awarded 125 days of jail credit, 5 days for the time he spent in jail after his original arrest and 120 days for the time he spent in jail after he was arrested for failing to appear.

In his motion to correct jail credit, Williams argued that under these facts he was entitled to one more day of jail credit for a total of 126 days. The State asserted that Williams was entitled to only four days’ credit for the time he spent in jail from May 27, 2011, to June 1, 2011, and that he should have been awarded a total of 124 days’ credit. The postconviction court concurred with the State’s calculations and denied Williams’ motion. But May 27 to June 1 is 6 days. See Bronk v. State, 25 So.3d 701, 703 (Fla. 2d DCA 2010) (noting that the statutory entitlement to jail credit starts with the initial arrest and continues until the actual release from custody). Thus, Williams is entitled to one more day of jail credit. Accordingly, we reverse and remand for the postconviction court to award Williams one more day of jail credit for a total of 126 days. Reversed and remanded with directions.

MORRIS and SLEET, JJ., Concur.


text:
    Jerome M. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1957.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2014.
    James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Appellant’s sentences on his first-degree murder conviction, see Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013), review granted, SC14-193, 2014 WL 4662081 (Fla.2014), and on his armed robbery conviction, see Henry v. State, 82 So.3d 1084 (Fla. 5th DCA), review granted, 107 So.3d 405 (Fla.2012).

AFFIRMED.

PALMER, EVANDER and BERGER, JJ., concur.


text:
    James Earl SAUNDERS, II, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3595.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2014.
    Blaise Trettis, Public Defender and Tamera Meister, Assistant Public Defender, Viera, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from Petitioner’s July 31, 2014 judgment and sentence in Case No. 05-2014-CF-024953-AX, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER and WALLIS, JJ., concur.


text:
    Claude Dwayne BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-922.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2014.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Claude Dwayne Bell appeals the final order revoking his community control and sentencing him to serve 15 years in the Department of Corrections as a violent felony offender of special concern. At the conclusion of his sentencing hearing, the trial court orally pronounced that Bell posed a danger to the community. See § 948.06(8)(e), Florida Statutes (2013). However, its written order is not consistent with the oral pronouncement. Accordingly, we affirm the revocation of Bell’s community control, but remand for correction of the written order to conform to the oral pronouncement. See Martin v. State, 87 So.3d 813 (Fla. 2d DCA 2012).

AFFIRMED in part; and REMANDED.

LAWSON, EVANDER and LAMBERT, JJ., concur.


text:
    Priscilla MARTINEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3500.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2014.
    Mike Graves, Public Defender, Fifth Judicial Circuit, Tavares and Nicole Hardin, Assistant Public Defender, Ocala, for Petitioner.
    Pamela J. Bondi, Attorney General, Tallahassee and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from Petitioner’s July 17, 2014 judgment and sentence in Case No. 11-2131-B-CF, in the Circuit Court in and for Marion County, Florida. See Fla. R. App.'P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, LAWSON and BERGER, JJ., concur.


text:
    Levi GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4896.
    District Court of Appeal of Florida, First District.
    Nov. 18, 2014.
    Levi Griffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


author: GROSS, J.

text:
    Alan SEIDEN, Appellant, v. Frances J. ADAMS, Ed. D., as Superintendent of the School District of Indian River County, Florida, Appellees.
    No. 4D13-2250.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.

      Thomas L. Johnson of Law Office of Thomas Johnson, P.A., Brandon, and Peter M. King and William H. Jones of Canel, King & Jones, Chicago, Illinois, for appellant.
    Jason L. Odom of Gould, Cooksey, Fen-nell, P.A., Yero Beach, for appellee.
   GROSS, J.

Alan Seiden appeals a final administrative order of the School Board of Indian River County terminating his employment as a teacher following a hearing before the School Board. We write primarily to address Seiden’s due process attack on the hearing and conclude that no constitutional violation occurred.

The School Superintendent delivered Seiden a letter charging him with miseon-. duct constituting “just cause” for his termination. The facts underlying the charge concerned Seiden’s response to the behavior of a special needs student, which caused an escalation of the incident.

Seiden timely requested a hearing. The School Board elected to hold the hearing itself pursuant to section 1012.33(6)(a)l., Florida Statutes (2013), instead of referring it to an administrative law judge. Seiden filed a motion to disqualify the School Board arguing: (1) he was teaching “out-of-field” and the School Board failed to notify parents or require him to gain certification; and (2) the School Board failed to report Seiden upon learning of the incident and therefore Seiden has a “well-grounded fear that the School Board will be focused on their own interest, thereby denying [him] the fair adjudicator to which he is entitled.” The School Board denied Seiden’s motion for disqualification.

The School Board held a public hearing where the Superintendent, represented by independent counsel, presented evidence supporting her recommendation for Seiden’s termination. A different lawyer served as the School Board’s attorney.

Seiden argues that comments made by School Board members fatally infected the hearing. At the conclusion of the hearing, Board member McCain stated that he did not feel qualified to conduct the hearing and mentioned that this case was “extremely personal” as he had a special needs child. He further mentioned that he wanted to recuse himself but was unable to:

I just want to make a brief comment just because I think it would be fair to Mr. Seiden. Mr. Seiden, much like you, I did not want to be here today. When this came before the Board some time ago, I made several comments that I thought this should have ... gone to a DOAH hearing. It shouldn’t have been •with us. The reason I said it back then-was because I am wholly and totally not qualified to do this. I believed that then, I believe that now. I believe it should have gone to somebody who does this for a living and who understands how to weigh evidence. One of the reasons I felt that way and always feel that way when it comes to, when there are issues such as this, I haVe a ... my first reaction ... is to, I will always bend over backwards to side for our classroom teachers ... However, it’s a little bit different in this case and I’ll tell you why. Without getting too deep, I have a ten-year-old daughter and that daughter’s a special needs child. This is extremely personal to me. I would have loved to have recused myself from this, but I can’t. I have to sit here and make a vote. And again, I’m sorry it came to this and I wish we all weren’t here. Seiden also points out that Board member Disney, in questioning a witness as to whether it was school policy to notify a parent of a problem with his or her child, stated:
What I’m getting at is I have a child who’s had an EH IEP (individual education plan) for twelve years. And my expectation would be that if my child had a certain level of disruption during the day, that that would provoke a call to me so I would know ... when my child got home what the day was like.

Lastly, Board member Pegler also admitted that she had “personal experience with ESE.”

Many of Seiden’s complaints about the way the School Board conducted the hearing appear to fall under a constitutional due process attack. Certainly, the hearing was not conducted in the same way as a judicial proceeding. However, the legislature provided that the School Board could choose to conduct the hearing and the law does not hold an administrative proceeding conducted by elected officials to the same standards as one held in a court of law.

“‘Under Florida law, a school board’s decision to terminate an employee is one affecting the employee’s substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute.’ ” Tieger v. Sch. Bd. of Palm Beach Cnty., 717 So.2d 172, 173 (Fla. 4th DCA 1998) (quoting Sublett v. Dist. Sch. Bd. of Sumter Cnty., 617 So.2d 374, 377 (Fla. 5th DCA 1993)). In Florida, “[t]he School Board is an agency for purposes of Florida’s Administrative Act, chapter 120, Florida Statutes,” Schimenti v. Sch. Bd. of Hernando Cnty., 73 So.3d 831, 833 (Fla. 5th DCA 2011) (citing Witgenstein v. Sch. Bd., 347 So.2d 1069, 1071 (Fla. 1st DCA 1977)), and can choose to conduct the hearing itself or refer the case to the Department of Administrative Hearings to appoint a hearing officer. See § 1012.33(6)(a)l.-2., Fla. Stat. (2013).

In this case, the School Board decided to conduct the hearing itself and thus was empowered “to prescribe rules and regulations for its administration, as well as to exercise quasi-judicial functions.” Cherry Commc’ns, Inc. v. Deason, 652 So.2d 803, 804 (Fla.1995). (footnote omitted). Although the School Board was sitting in its quasi-judicial capacity by acting as the hearing officer, this “does not make the body into a judicial body.” Canney v. Bd. of Pub. Instruction of Alachua Cnty., 278 So.2d 260, 263 (Fla.1973). Its hearings are “of an informal character,” Krischer v. Sch. Bd. of Dade Cnty., 555 So.2d 436, 437 (Fla. 3d DCA 1990) (quoting Powell v. Bd. of Pub. Instr. of Levy Cnty., 229 So.2d 308, 311 (Fla. 1st DCA 1969)), and are “not controlled by strict rules of evidence and procedure.” Carillon Cmty. Residential v. Seminole Cnty., 45 So.3d 7, 10 (Fla. 5th DCA 2010) (citation omitted); see also Sabates v. State of Fla. Dep’t of Health, 104 So.3d 1227, 1228-1229 (Fla. 4th DCA 2012).

In such instances, “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Schimenti, 73 So.3d at 833 (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Generally, due process requirements are met in a quasi-judicial proceeding “if the parties are provided notice of the hearing and an opportunity to be heard.” Jennings v. Dade Cnty., 589 So.2d 1337, 1340 (Fla. 3d DCA 1991). The proceeding must be “essentially fair.” Carillon Cmty. Residential, 45 So.3d at 10.

A due process violation is not triggered by the fact that the School Board employed Seiden and the Superintendent investigated and evaluated his conduct. In Koehler v. Florida Real Estate Commission, 390 So.2d 711, 711 (Fla.1980), the Florida Supreme Court applied the due process analysis of Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), and held that a due process violation does not arise in an administrative disciplinary proceeding merely because an agency has “investigative and prosecutorial functions as well as its final adjudicative function.” “Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not” disqualify a Board member who later sits in judgment. Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 493, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976); Koehler, 390 So.2d at 713. “Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ ” Hortonville, 426 U.S. at 493, 96 S.Ct. 2308 (quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)).

Section 120.665, Florida Statutes (2013), sets the legal parameters for the Board members’ participation in the hearing requested by an employee pursuant to section 1012.33(6)(a). That section provides that an individual “may be disqualified from serving in an agency proceeding for bias, prejudice, or interest when any party to the agency proceeding shows just cause by a suggestion filed within a reasonable period of time prior to the agency proceeding.” § 120.665(1), Fla. Stat. (2013). As the First District has recognized, the “standards for disqualifying an agency head differ from the standards for disqualifying a judge” because “agency heads have significantly different functions and duties than do judges.” Bay Bank & Trust Co. v. Lewis, 634 So.2d 672, 679 (Fla. 1st DCA 1994). Under the statute, disqualification is required where “the facts alleged would prompt a reasonably prudent person to fear that they will not obtain a fair and impartial hearing.” Charlotte Cnty. v.. IMC-Phosphates Co., 824 So.2d 298, 300 (Fla. 1st DCA 2002). Put differently, the “test for disqualification has been succinctly stated as being whether ‘a disinterested observer may conclude that the (agency) has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.’ ” Cinderella Career & Finishing Sch., Inc. v. Fed. Trade Comm’n, 425 F.2d 583, 591 (D.C.Cir.1970) (quoting Gilligan, Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir. 1959)). Given the “presumption of honesty and integrity in those serving as adjudicators,” Koehler, 390 So.2d at 713 (quoting Withrow, 421 U.S. at 47, 95 S.Ct. 1456), the mere appearance of bias that might disqualify a judge will not require disqualification of Board members acting in an adjudicative capacity.

The grounds for recusal of the School Board urged in Seiden’s motion to recuse did not allege the bias of any of the Board members. Seiden did not move to recuse any Board members for what was said at the hearing, so he failed to preserve the bias issue for appellate review. See Allen v. State, 137 So.3d 946, 958 (Fla.2013).

Even were we to reach the section 120.665 recusal issue, we do not find that type of egregious conduct identified by courts as requiring recusal; there was no prejudgment, personal, or pecuniary bias. The grounds of the motion for recusal, which derived from the employment relationship, were not the extreme conflict of interest that would disable the agency from evaluating the employee’s conduct. Similar to any agency’s familiarity with matters within its purview, the Board members’ personal experience with special needs children did not rise to the level that requires disqualification. Like many elected officials in a public forum, the Board members were inclined to think out loud. School Board procedures did not provide for secret deliberations like a jury in a court of law, and elected officials can be expected to explain their votes to deflect political pushback. Before the hearing, the Board did not issue a statement lauding the Superintendent’s action, see Charlotte Cnty., 824 So.2d at 300, nor did the Board make a public statement which would lead a disinterested observer to conclude that it had prejudged the facts at issue in the adjudicatory proceeding. See Cinderella, 425 F.2d at 589-90; In re 1616 Second Ave. Restaurant, Inc. v. New York State Liquor Auth., 75 N.Y.2d 158, 551 N.Y.S.2d 461, 550 N.E.2d 910, 912 (1990). Nothing in the members’ statements belied a personal bias against Seiden or a pecuniary interest whereby a Board member stood to “gain or lose by a decision either way.” Wash. State Med. Disciplinary Bd. v. Johnston, 99 Wash.2d 466, 663 P.2d 457, 474 (1983) (quoting Ritter v. Bd. of Comm’rs, 96 Wash.2d 503, 637 P.2d 940, 946 (1981)).

Seiden also argues that the School Board was “demonstrably unqualified” to handle his hearing. A thorough reading of the transcript reveals that the hearing was somewhat disorganized and the Board members were not well versed in the appropriate procedure. However, the School Board was not required to strictly adhere to Florida rules of evidence and procedure, and the legislature has specifically authorized a hearing conducted before elected officials rather than judges with special training. See §§ 120.569(2)(g), 120.57(l)(c), Fla. Stat. (2013). “The extent of procedural due process afforded to a party in a quasi-judicial hearing is not as great as that afforded to a party in a full judicial hearing.” Carillon Cmty. Residential, 45 So.3d at 10 (citation omitted). Although not a model hearing, the hearing complied with due process in that it allowed Seiden a fair chance at challenging the reasons for his termination.

We have considered the other matters raised on appeal and find no reversible error.

Affirmed.

TAYLOR and GERBER, JJ., concur.

      . Section 1012.33(6)(a)l. provides as follows:
      Any member of the instructional staff ... may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (l)(a). The district school board must notify the employee in writing whenever charges are made against the employee and may suspend such person without pay.... If the employee wishes to contest the charges, the employee must, within 15 days after receipt of the written notice, submit a written request for a hearing. Such hearing shall be conducted at the district school board’s election in accordance with one of the following procedures:
      1. A direct hearing conducted by the district board within 60 days after receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. A majority vote of the membership of the district school board shall be required to sustain the district school superintendent's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. ...


text:
    NEXTGEN RESTORATION, INC., a/a/o Inexselcys Mercado, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, a Florida Governmental Entity, Appellee.
    No. 2D13-5444.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2014.
    Susan W. Fox of Fox & Loquasto, P.A., Orlando; and Ricardo J. Diaz and Michael Grossman of Cohen Battisti, Attorneys at Law, Winter Park, for Appellant.
    Maureen G. Pearcy of Hinshaw & Culbertson LLP, Coral Gables, for Appellee.
   KHOUZAM, Judge.

Nextgen Restoration, Inc., appeals an order dismissing its complaint against Citizens Property Insurance Corporation. Because Citizens Property Insurance Corporation has conceded that reversal is proper and we agree, we reverse the order on appeal and remand for further proceedings.

Reversed and remanded.

DAVIS, C.J., and WALLACE, J., Concur.


text:
    Michele J. CLARK, Appellant, v. Lawrence R. CLARK, Appellee.
    No. 2D14-1514.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2014.

      Robert M. Tager, Clearwater, for Appellant.
    Donald A. Foster of The Foster Law Group, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

In this dissolution of marriage proceeding, Michele J. Clark (the Wife) appeals a nonfinal order entitled “Order on Wife’s Motion for Contempt.” In the order, the trial court stated that it was sua sponte reducing the Wife’s previously ordered temporary support but did not rule on the Wife’s contempt motion. The order resulted from a noticed contempt hearing against Lawrence R. Clark (the Husband), and the Husband had not filed a motion to reduce the temporary support.

Because the Wife had no notice that the issue of a modification of temporary support would be considered at the contempt hearing, the Husband properly concedes error on appeal, citing Wright v. Wright, 654. So.2d 674, 674 (Fla. 5th DCA 1995), and Dent v. Dent, 851 So.2d 819, 823 (Fla. 2d DCA 2003) (Stringer, J., concurring specially). Based on the lack of notice and a meaningful opportunity to be heard, see Wright, 654 So.2d at 674, we reverse the Order on Wife’s Motion for Contempt that was rendered on March 17, 2014. We remand for reinstatement of the temporary support obligation ordered on September 24, 2012. See id.

Reversed and remanded.

VILLANTI and CRENSHAW, JJ, Concur.

      . In the Wife’s reply brief, counsel suggests that we order the Husband to pay the Wife’s attorney’s fees incurred in this appeal. We decline to do so because a motion for appellate attorney’s fees has not been filed in compliance with Florida Rule of Appellate Procedure 9.400(b).


text:
    Marcus Kennard LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1041.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Carey Haughwout, Public Defender, and-Louis G. Carres, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals from his conviction for robbery with a firearm while wearing a mask. He argues that the circuit court erred in denying his dispositive motion to suppress evidence obtained during his unlawful detention. He raised this same argument in a separate case because the evidence obtained was used in both eases. In that other case, Lewis v. State, 143 So.3d 998 (Fla. 4th DCA 2014), we held that the circuit court erred in denying the defendant’s motion to suppress. In light of that holding, the state has notified us that we should reverse the circuit court’s denial of the defendant’s motion to suppress in this case as well. We agree.

Reversed and remanded.

CIKLIN, GERBER and LEVINE, JJ., concur.


text:
    Nandi Abbi JNO-CHARLES, Appellant, v. Sylvia ROMANE-WILSON, Appellee.
    No. 4D13-1981.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014
    Eric T. Schwartzreich and Marla Chicot-sky of Schwartzreich & Associates, Fort Lauderdale, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee,' 377 S6.2d 1150 (Fla. 1979).

CIKLIN, CONNER and FORST, JJ„ concur.


author: FORST, J.

text:
    Diana JELIC, Appellant, v. CITIMORTGAGE, INC., as Successor by Merger with First Nationwide Mortgage Corporation, Appellee.
    No. 4D13-2933.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.

      Peter Ticktin, Josh Bleil, Kendrick Al-maguer, and Michael Yater of The Ticktin Law Group, P.A., Deerfield Beach, for appellant.
    Nancy M. Wallace, Michael J. Larson, and Ryan D. O’Connor of Akerman LLP, Tallahassee, and William P. Heller of Ak-erman LLP, Fort Lauderdale, for appel-lee.
   FORST, J.

In this foreclosure action, Appellant Diana Jelic appeals the trial court’s entry of final summary judgment in favor of the appellee, CitiMortgage, Inc. Appellant argues the trial court reversibly erred by (1) entering summary judgment despite Citi-Mortgage’s failure to refute her affirmative defenses of unclean hands and failure to satisfy the conditions precedent, and (2) admitting the affidavit in support of the motion for summary judgment. For the reasons stated below, we disagree and affirm the summary judgment of foreclosure.

Standard of Review

We review an order granting summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach,. L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Allenby & Assocs., Inc. v. Croum St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009) (quoting Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA 2006)). When evaluating summary judgment evidence, the court must “draw every reasonable inference in favor of the non-moving party.” Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995).

CitiMortgage Sufficiently Rebutted Appellant’s Affirmative Defenses

“Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.” Id. In the instant case, Appellant alleged a wide array of violations on the part of CitiMortgage, the prior holders of the note, and the entire mortgage lending industry. Generic claims that fail to allege any particularized conduct on the part of the foreclosing bank are insufficient to assert a claim of unclean hands. See Tribeca Lending Corp. v. Real Estate Depot, Inc., 42 So.3d 258, 263 (Fla. 4th DCA 2010) (holding no valid unclean hands defense existed where plaintiffs conduct was not the cause of alleged harm to defendant). Defendants in a foreclosure action cannot escape a judgment simply by attempting to overwhelm the court with the number of violations alleged. Throwing the proverbial “everything but the kitchen sink” at a plaintiffs motion for summary judgment does not, alone, create a sufficient issue of material fact to prevent summary judgment. The alleged defenses must still be factually and legally sufficient. In the instant case, they were not; in fact, Appellant stated in her deposition that CitiMortgage did not do “anything wrong with regard to [her] loan.”

Similarly, Appellant claims Citi-Mortgage failed to provide her with notice of acceleration, as required by the note. Appellant bases this argument on the fact that she does not recall receiving such notice. However, Appellant conceded that she had no reason not to believe the notice was sent and CitiMortgage submitted an affidavit stating that notice was sent, along with an attached copy of the letter and records showing the letter was mailed. See Camerota v. Kaufman, 666 So.2d 1042, 1045 (Fla. 4th DCA 1996) (noting the re-buttable presumption that mailed letters will be received by the recipient).

Because none of Appellant’s defenses were legally sufficient (and, in several instances, were contradicted by Appellant’s deposition testimony), her claim that Citi-Mortgage failed to refute her affirmative defenses is rejected. The trial court properly found that the undisputed evidence shows CitiMortgage complied with all conditions precedent to foreclosure.

Affidavit Submitted by CitMortgage Was Properly Considered by the Trial Court

As a secondary issue (though inter-wined with the affirmative defenses argument), Appellant contends that the affidavit submitted by CitiMortgage in support of its motion for summary judgment failed to meet the requirements of Florida Rule of Civil Procedure 1.510(e). This rule requires that “sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Id. In the instant ease, CitiMortgage submitted an affidavit swearing to the authenticity of the business records used to determine the amounts owed. The affiant attached a copy of the payment history going back to November 2005. Although Appellant alleges the affiant referred to other documents to determine the amounts owed, this is the only document the affiant referred to in her deposition. Therefore, CitiMort-gage has met the requirements of Rule 1.510(e) that “copies of all papers or parts thereof referred to in an affidavit” be attached.

Additionally, while CitiMortgage included the allegedly deficient affidavit in its motion for summary judgment, nothing in the record provided shows that Appellant objected to the affidavit during the summary judgment proceedings. “[F]ail-ure to timely object to the sufficiency of [CitiMortgage’s] affidavit when it was presented on motion for summary judgment is fatal to this claim.” Vilvar v. Deutsche Bank Trust Co. Ams., 83 So.3d 853, 856 (Fla. 4th DCA 2011).

Conclusion

In November 2008, Appellant ceased making her monthly mortgage payments on the subject property. This resulted in a foreclosure complaint filed by CitiMort-gage, the then-holder of a promissory note for the property. As CitiMortgage was able to refute Appellant’s affirmative defenses as factually and/or legally insufficient, and established an absence of disputed issues of material fact (as distinct from disputed but not supported theories), the trial court properly granted summary judgment with respect to CitiMortgage’s foreclosure complaint.

Affirmed.

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

      . For example, Appellant accused the mortgage lending industry of acting "with the purpose of deriving great profits.”


author: WARNER, J.

text:
    Dennis L. ALBU, Appellant, v. Deborah ALBU, Appellee.
    No. 4D13-3558.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.

      Dennis Albu, Delray Beach, pro se.
    Deborah Albu, Greenacres, pro se.
   WARNER, J.

In this marital dissolution case, the former husband appeals an order granting his petition to modify the alimony he pays to his former wife. Although finding a substantial change of circumstances, the trial court reduced the alimony owed instead of terminating it entirely. The former husband claims that because he does not have the ability to pay, the trial court should have terminated his alimony obligation. He contends the trial court improperly equalized the income between the parties. We disagree, as the former wife was solely dependent upon the alimony for support, and the court’s choice to reduce alimony rather than eliminate it was not an abuse of discretion.

The parties divorced in 2007 after a long-term marriage in which the wife never worked outside the home. The final judgment incorporated a marital settlement agreement in which the former husband agreed to pay the former wife $2,000 per month in alimony until she remarried or either party died. Because of the former wife’s poor health, he also agreed to pay $80 per month towards the former wife’s prescription drug costs.

The former husband did not keep current with his alimony obligation and was held in contempt several times in 2009 and 2010. As of February 2011, he was in arrears in excess of $20,000. The former wife also had to seek medical coverage through the Health Care District, which paid for her prescription for insulin required by her diabetes. But the drugs eventually became so expensive that the District could no longer pay for them.

In October 2012, the former husband filed a petition to terminate or reduce alimony because of a substantial change in circumstance. He explained that he had suffered a severe heart attack in August 2011 and had been declared disabled by the Social Security Administration. His former business was involuntarily closed, because he could no longer perform the physical work it required. The wife filed an objection, and the case proceeded to an evidentiary hearing before a magistrate.

After hearing testimony from both of the parties, the magistrate made the following detailed findings of fact, which were accepted by the trial court over the former husband’s objections. The former husband’s heart attack, and the resulting loss of his business, caused a significant drop in the $120,000 yearly income the husband was making at the time of the dissolution. He now received Social Security disability benefits of $1,949 per month, from which $900 was deducted for his alimony obligation. The former wife’s sole source of income was alimony from the former husband, and she was totally dependent upon it. She could not qualify as yet for any form of Social Security payments, although when she turns 62 she can receive payments based upon her former husband’s Social Security. She was 60 years old at the time of the petition for modification. The court found, “[h]er need for financial assistance in the form of alimony continues unchanged since the entry of the final judgment.”

The court acknowledged that the loss of the business constituted a “substantial, material and permanent change of circumstances,” which required a modification of alimony. Nevertheless, the court determined “this finding must be balanced against the Former Wife’s total dependence on the alimony.” It concluded in these circumstances, the parties “should be placed on approximately equal ground.” It then reduced the alimony obligation to $900 per month, the amount the former husband was already paying. In addition, it eliminated his obligation to maintain health insurance and to pay the $80 per month towards the former wife’s medical prescriptions. The court also authorized the former husband to petition again for modification once the former wife starts to receive Social Security payments.

In this appeal, the former husband argues that the alimony should have been terminated rather than reduced, because his income of $1,949 did not meet his expenses of $1,955. In making this claim, he completely ignores the fact that if alimony were terminated, the former wife would have no income and thus could cover none of her own expenses. Based on the circumstances of this case, the trial court did not abuse its discretion in reducing the alimony obligation to $900.

“To warrant a modification of alimony, the party seeking the change must prove *1) a substantial change in circumstances; 2) that was not contemplated at the time of the final judgment of dissolution; and 3) is sufficient, material, involuntary, and permanent in nature.’ ” Koski v. Koski, 98 So.3d 93, 95 (Fla. 4th DCA 2012) (quoting Damiano v. Damiano, 855 So.2d 708, 710 (Fla. 4th DCA 2003)). Nevertheless, the need of one spouse and the ability to pay of the other spouse continue to be the most important factors to consider in modification proceedings. Boone v. Boone, 3 So.3d 403, 404 (Fla. 2d DCA 2009). In determining the extent of modification, the trial court should consider those factors listed in section 61.08, Florida Statutes, to the extent that they are relevant in a modification proceeding. See Donoff v. Donoff, 940 So.2d 1221, 1223 (Fla. 4th DCA 2006). These factors include each party’s financial resources, earning capacities, employability, and sources of income. See § 61.08(2)(a)-(j), Fla. Stat. (2012). The appellate court reviews an order on a motion to modify alimony based on an abuse of discretion standard. Garvey v. Garvey, 138 So.3d 1115, 1118 (Fla. 4th DCA 2014).

Here, the trial court considered these factors when it concluded that the former wife had no other source of income, yet the former husband had some income. Clearly, neither party could meet their expenses with his level of income. The former wife had never worked, and both parties had substantial medical problems. Given these factors, the trial court’s efforts to provide some support to the wife by approximately dividing the income (although the former husband still receives more than the former wife) is not an abuse of discretion.

This case is most similar to Beebe v. Roman, 994 So.2d 484 (Fla. 5th DCA 2008), which involved the award of alimony in a 15 ½ year marriage. Both parties were retired and of advanced age. The husband’s retirement income was less than $1,900 per month, and the wife received social security benefits of $459 per month. After dividing the meager assets, the trial court awarded alimony to the wife and equalized the parties’ incomes. The appellate court quoted the trial court’s reasoning:

In determining the alimony amount, the trial court observed that both parties had suffered “a substantial and dramatic reduction in their standard of living as a result of the marital breakup” and that an equalization of their net incomes would place both parties “in an equal[ly] miserable situation of not having enough money to sustain the lifestyle that they both enjoyed during the course of the marital relationship.”

Id. at 484-85. The court then noted, “[a]n award of alimony that results in the equalization of income is not per se improper.” Id. at 485. The trial court in Beebe had not equalized the parties’ income without regard to the factors of need and ability contained in section 61.08, Florida Statutes. Instead, the court had determined that equalization was appropriate after applying those factors. The Fifth District held, “[w]e cannot conclude that the alimony amount awarded by the trial court constituted an abuse of discretion.” Id. at 485.

Hahn v. Hahn, 66 So.3d 345 (Fla. 4th DCA 2011), on which the former husband relies, is distinguishable. In Hahn, the former wife received $1,000 per month in alimony from the former husband. The former husband petitioned for modification due to his pending retirement and downturn in his business. The evidence showed that he had approximately $1,500 in income, nearly $2,200 in expenses, and no liquid assets. The former wife, on the other hand, had been working at a job making $35,000 a year but was unemployed, receiving $1,200 in unemployment compensation. She also had retirement accounts of $33,000. She had not applied for social security disability benefits, although she claimed she was unable to obtain employment. Under these circumstances, we held that the trial court’s reduction of the husband’s alimony to $450 per month was an abuse of discretion, and we remanded for the trial court to either eliminate alimony or reduce it to a nominal amount. Id. at 350. The former wife in Hahn had an income approximating the former husband’s, as well as prospects for continued employment or social security disability. In contrast, in this case the former wife had no income and no ability to generate income.

The former husband also relies on Rose-can v. Springer, 845 So.2d 927 (Fla. 4th DCA 2003), in claiming that “[i]t is against the law to order or authorize income sharing as a basis to set an appropriate amount of alimony.” He misreads Rosecan. In that case we said, “The purpose of permanent periodic alimony is not to divide future income to establish financial equality. It ‘is to provide for the needs and necessities of life for a former spouse, as they were established during the marriage of the parties. ’ ” Id. at 929-30 (quoting Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000)) (emphasis added). We also explained that Mallard forbade the use of alimony “as a tool to forge economic equality without regard to the needs of the recipient spouse.” Id. at 930 (emphasis added). Here, there is no question that the former wife is totally dependent upon alimony for her support. There is no proof that she has any ability to work, and she has substantial medical disabilities. The parties are essentially in the same position with respect to their needs. There is no reason that the former wife should be left completely destitute, and the former husband have all of the resources available to both parties. Just as in Beebe, both parties are “in an equally] miserable situation of not having enough money to sustain the lifestyle that they both enjoyed during the course of the marital relationship.” Beebe, 994 So.2d at 484-85.

How the trial court balanced the need and ability in this case was appropriate, including leaving open the ability of the former husband to petition for a future reduction should the former wife qualify for social security benefits. No abuse of discretion has been shown.

Affirmed.

MAY and CONNER, JJ., concur.


author: . PER CURIAM.

text:
    Abdelaziz HAMZE, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1112.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Abdelaziz Hamze, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   . PER CURIAM.

Appellant seeks review of an order that denied his rule 3.850 motion. The trial court ruled that it lacked jurisdiction to consider the motion in light of appellant’s pending appeal of a prior rule 3.850 motion. We reverse and remand for the trial court to consider this court’s opinions in Marshall v. State, 91 So.3d 277 (Fla. 4th DCA 2012), Jackman v. State, 88 So.3d 325 (Fla. 4th DCA 2012), and Lubin v. State, 87 So.3d 1260 (Fla. 4th DCA 2012); see also Sydoriak v. State, 92 So.3d 298 (Fla. 4th DCA 2012). As in those cases, we express no opinion on the merits of appellant’s, motion.

Reversed and Remanded.

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    Sandra LEANO, Appellant, v. Amy SMITH and John Mendez, Appellees.
    No. 4D14-1519.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Kathleen K. Pena of Legal Aid Services of Broward County, Inc., Plantation, for appellant.
   PER CURIAM.

Appellant Sandra Leano challenges two orders: (1) an order dismissing her petition for temporary custody of a minor child by extended family, pursuant to chapter 751, Florida Statutes, and (2) an order issued in connection -with indirect criminal contempt proceedings initiated by the court. The dismissal of Leano’s custody action is affirmed without further comment. The order entered as the result of the contempt proceedings is, however, reversed. The order is tantamount to an order of contempt and was entered absent compliance with the procedural safeguards mandated by Florida Rule of Criminal Procedure 3.840.

Affirmed in part and reversed in part.

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


text:
    PUBLIX SUPER MARKETS, INC., d/b/a Publix Super Market, Petitioner, v. Sylvia JOHN, Respondent.
    No. 4D14-1892.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Katherine E. Giddings and Kristen M. Fiore of Akerman LLP, Tallahassee, for petitioner.
    Kathryn D. Anderson of Reich & Mancini, P.A., Port St. Lucie, for respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the April 24, 2014 order granting respondent’s motion to compel production. On remand, the circuit, court shall conduct an in camera review to determine whether the October 11, 2009 incident report is protected by the work product privilege. If the court determines that the document is so protected, it shall not order production unless respondent makes a “showing that [respondent] has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fla. R. Civ. P. 1.280(b)(4); see also Publix Super Mkts., Inc. v. Anderson, 92 So.3d 922, 928 (Fla. 4th DCA 2012); Lloyd’s Underwriters at London v. El-Ad Villagio Cond. Ass’n, 976 So.2d 28, 28 (Fla. 4th DCA 2008).

STEVENSON, GROSS and GERBER, JJ., concur.