author: PER CURIAM. CONNER, J.,

text:
    Gafoor JAFFER and Nina Jaffer, Appellants, v. CHASE HOME FINANCE, LLC, Successor by Merger to Chase Manhattan Mortgage Corporation, Appellee.
    No. 4D13-1597.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Rehearing En Banc Denied Feb. 24, 2015.

      Kenneth Ray Noble of Noble Law Firm, P.A., Deerfield Beach, for appellants.
    Elliot B. Kula and W. Aaron Daniel of Kula & Samson, LLP, Aventura, for appel-lee.
   PER CURIAM.

On the second appearance of this case before us, Gafoor Jaffer and Nina Jaffer again seek to reverse a final judgment of foreclosure after summary judgment was granted in favor of Chase Home Finance, LLC. We affirm the circuit court’s ruling as to all of the contentions of trial court error asserted by the Jaffers, but write to address the contention that the circuit court erred in granting summary judgment on a complaint that failed to state a cause of action.

Pertinent Facts and Prior Proceedings

In an amended complaint, Chase sought foreclosure against the Jaffers, alleging that it “is now the holder of the Mortgage Note and Mortgage and/or is entitled to enforce the Mortgage Note and Mortgage.” Chase attached to the complaint a copy of both documents. The attached copy of the mortgage note stated it was payable to Aaxa Discount Mortgage, Inc., and contained no indorsements or allonges. After the Jaffers failed to serve an answer or affirmative defenses, a default was entered against them.

Chase moved for summary judgment. In anticipation of the summary judgment hearing, Chase filed the original mortgage note and mortgage. At the time of filing, the original mortgage note contained two undated indorsements. One indorsement was by Aaxa Discount Mortgage Inc., stating: “Pay to the Order of: Chase Manhattan Mortgage Corporation Without Recourse.” The second was a blank in-dorsement by Chase Manhattan Mortgage Corporation.

The circuit court granted a final summary judgment of foreclosure with a sale date. Subsequently, Chase moved to cancel the foreclosure sale, based on Chase’s own admission “that in some cases employees in Chase’s mortgage foreclosure operations may have signed affidavits about loan documents ... without the signer personally having reviewed those loan files.” The Jaffers then obtained counsel and filed a motion to vacate the default, set aside summary judgment, and cancel the sale. The circuit court denied the Jaffers’ motion.

The Jaffers appealed, arguing that Chase failed to prove standing, thére was no admissible evidence as to the alleged indebtedness, and Chase’s affidavits in support of summary judgment were inadmissible. This court reversed the summary judgment “[d]ue to the possibility that Chase’s affidavits were signed by improper personnel.” See Jaffer v. Chase Home Fin. LLC, 92 So.3d 240, 242 (Fla. 4th DCA 2012) (“Jaffer I”). On remand, we did not direct the circuit court to vacate the final judgment; instead, we directed the circuit court “to limit its considerations to whether the affidavits filed in the case were based on personal knowledge of the affiants.” Id.

After remand, Chase moved to vacate the final judgment, contending it was more efficient to start over with a motion for summary judgment. The circuit court granted Chase’s motion and vacated the prior final judgment.

Chase then filed its second motion for summary judgment. The Jaffers filed their written response to Chase’s renewed motion, arguing several grounds, one of which was that the amended complaint failed to state a cause of action because the copy of the mortgage note attached to the complaint was not indorsed.

At the hearing on the motion for summary judgment, the circuit court ruled that (1) there were no further issues regarding Jaffer I because Chase had wiped the slate clean when it vacated the prior final judgment; (2) Chase was the owner and holder of the original note; (3) the default precluded the Jaffers from asserting the affirmative defense of standing; and (4) there were no issues remaining as to the amounts due and owing. Finding no genuine issues of material fact, the circuit court granted summary judgment and entered a final judgment of foreclosure.

The Jaffers appeal. We address their contention that the final judgment should be reversed because the amended complaint failed to state a cause of action.

Appellate Analysis

“The standard of review of an order granting summary judgment is de novo.” Fla. Atlantic Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010) (quoting Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010)) (internal quotation marks omitted). “When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.” Allenby & Assocs., Inc. v. Crown 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)). “[Tjhe burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (citing Shaffran v. Holness, 93 So.2d 94 (Fla.1957)).

The Jaffers contend the circuit court erred in granting summary judgment because the amended foreclosure complaint failed to state a cause of action. More specifically, they argue the complaint was deficient in stating a cause of action because (1) the copy of the mortgage note attached to the complaint stated the note was payable to Aaxa Discount Mortgage, Inc., (2) the attached copy of the note did not contain any indorsements or allonges demonstrating the note had been transferred to Chase, and (3) the allegations in the body of the complaint failed to allege any facts demonstrating the note had been transferred to Chase. Although the body of the complaint alleged that “Plaintiff is now the holder of the Mortgage Note and Mortgage and/or is entitled to enforce the Mortgage Note and Mortgage,” the copy of the unindorsed mortgage note attached to the complaint, which controls if there are inconsistent allegations in the complaint, clearly states the note is payable to someone other than Chase. Thus, the Jaf-fers argue, the copy of the note attached to the complaint “negated the Plaintiffs cause of action.” Additionally, the Jaffers argue that Chase’s reliance upon the original mortgage note with indorsements as summary judgment evidence was improper because the complaint was not amended to attach the correct version of the note.

The Jaffers correctly cite case law explaining that

under the Florida Rules of Civil Procedure, and case law interpreting the rule, exhibits attached to a pleading become a part [of the pleading] for all purposes; and if an attached document negates the pleader’s cause of action or defense, the plain language of the document will control and may be the basis for a motion to dismiss.

Health Application Sys., Inc. v. Hartford, Life and Accident Ins. Co., 381 So.2d 294, 297 (Fla. 1st DCA 1980) (emphasis added) (citations omitted); see also Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA 1994). However, “for exhibits to serve as a basis for dismissing a complaint for failure to state a cause of action, the exhibits must actually negate the cause of action — not simply raise possible defenses to it.” Paladin Props. v. Family Inv. Enters., 952 So.2d 560, 564 (Fla. 2d DCA 2007).

Here, we find that the allegations of the complaint were sufficient to state a caus'e of action for mortgage foreclosure. Moreover, we agree with Chase that the copy of the note attached to the complaint did not negate the cause of action; it simply raised a possible standing defense, which is not enough to serve as a basis to dismiss the complaint for failure to state a cause of action.

Even if there were merit to the Jaffers’ argument, the substance of the argument is in the nature of an attack on Chase’s standing. We have repeatedly held that standing is an affirmative defense and failure to raise it in a responsive pleading generally results in a waiver. Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893, 895 (Fla. 4th DCA 2012); Glynn v. First Union Nat’l Bank, 912 So.2d 357, 358 (Fla. 4th DCA 2005); Kissman v. Panizzi, 891 So.2d 1147, 1150 (Fla. 4th DCA 2005). The Jaffers did not file an answer or affirmative defenses, and a default was entered against them. Having waived the defense of standing, the borrowers cannot contest Chase’s standing as of the date suit was filed. Nor can the borrowers simply recast this standing defense as a failure to state a cause of action.

The Jaffers also argue that because the copy of the mortgage note attached to the complaint differed from the original note, a genuine issue of fact remained regarding Chase’s right to foreclose. Even if a foreclosure defendant waives the right to challenge the bank’s standing as of the date suit was filed, the bank must prove its right to enforce the note as of the time summary judgment is entered. Beaumont v. Bank of New York Mellon, 81 So.3d 553, 555 (Fla. 5th DCA 2012). Here, as noted above, the issue of Chase’s standing at the inception of the suit was waived by virtue of the default for failure to plead. Moreover, no genuine issues of material fact were raised by the differences between the original note and the copy attached to the complaint. The filing of the original note several months prior to the summary judgment hearing proved Chase’s entitlement to the final judgment of foreclosure. See Beaulieu v. JPMorgan Chase Bank, Nat’l Assn., 80 So.3d 365, 365 (Fla. 4th DCA 2012) (“Because appellant defaulted, she cannot contest ... the allegations of the complaint that the appellee was the ... holder of the note and mortgage.... The original note and mortgage were filed in the foreclosure action and entitled appellee to the final judgment of foreclosure it obtained.”).

For the above reasons, we find no error by the circuit court in granting a summary judgment of foreclosure.

Affirmed.

LEVINE and KLINGENSMITH, JJ., concur.

CONNER, J., concurs in part and dissents in part with an opinion.

CONNER, J.,

concurring in part and dissenting in part.

I concur with the majority that the circuit court did not err in granting summary judgment, except as to the issue of whether the complaint stated a cause of action and whether failure to state a cause of action precludes summary judgment in this case. In my view, the complaint failed to state a cause of action. Because the defect was raised in a written response opposing the motion for summary judgment and argued to the circuit court, I disagree with the majority that the default for failure to plead against the Jaffers waived the defense.

As a preliminary matter, I emphasize the legal principle stated by the majority concerning the standard of review that “[t]he appellate court reviews de novo a summary judgment, examining the record in a light most favorable to the non-moving party.” Louis v. Chrysalis Ctr., Inc., 121 So.3d 633, 633 (Fla. 4th DCA 2013) (citing Shirey v. State Farm Mut. Auto. Ins. Co., 94 So.3d 619, 620-21 (Fla. 4th DCA 2012)). Summary Judgment Must Be Grounded Upon the Pleadings

“Although no thoroughly satisfactory definition of a cause of action has been laid down by the authorities, it is generally conceded under the modern view that a cause of action is the right which a party has to institute a judicial proceeding.” Bacardi v. Lindzon, 845 So.2d 33, 36 (Fla.2002) (quoting Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591, 593 (Fla.1956)) (internal quotation marks omitted); see also Leahy v. Batmasian, 960 So.2d 14, 18 (Fla. 4th DCA 2007). A cause of action is initiated by the filing of a complaint. Fla. R. Civ. P. 1.050. To support a judgment granting affirmative relief, the body of the complaint must contain allegations of ultimate facts that give rise to the cause of action. Fla. R. Civ. P. 1.110(b)(2); Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990) (“Because the complaint failed to set forth any ultimate facts that establish either actual or apparent agency or any other basis for vicarious liability, the [plaintiffs below] did not allege any grounds entitling them to relief.”).

“A party seeking affirmative relief may not be granted relief that is not supported by the pleadings.” Contractors Unlimited, Inc. v. Nortrax Equip. Co. Se., 833 So.2d 286, 288 (Fla. 5th DCA 2002) (citation omitted). The only exception to that principle occurs by rule “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Fla. R. Civ. P. 1.190(b). Thus, absent an issue not raised in the pleadings being tried by express' or implied consent, a summary judgment is reversible if the complaint fails to state a cause of action. See Fla. R. Civ. P. 1.510(c); see also BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 937 (Fla. 2d DCA 2010) (“A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file 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.’ ”) (emphasis added) (citations omitted) (internal quotation marks omitted).

Failure to State a Cause of Action

In Florida, the right to foreclose on a mortgage follows the debt. See WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004) (quoting Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938)) (“[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt.”). Stated another way, the one entitled to enforce the debt is the one entitled to foreclose on the mortgage.

Section 673.3011, Florida Statutes (2013), defines who may enforce a negotiable instrument and enforce payment of the debt:

The term “person entitled to enforce” an instrument means:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the rights of a holder; or
(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 [enforcement of lost, destroyed, or stolen instruments] or s. 673^4181(4) [payment or acceptance by mistake].
A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

(emphasis added). The last sentence of section 673.3011 makes it clear that possession of the instrument is more important than ownership of the instrument in terms of having the right to enforce payment on the instrument.

Also relevant to the analysis is section 671.201(21), Florida Statutes (2013), which defines who is considered a holder of a negotiable instrument:

(21) “Holder” means:
(a) The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession;

(emphasis added). Thus, according to Florida statutes, in order to enforce a mortgage note secured by a mortgage, one must be the holder of the note or a non-holder in possession of the note. See Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618, 622 (Fla. 5th DCA 2010).

To establish that Chase is a “person entitled to enforce” the mortgage note, the complaint alleges “Plaintiff is now the holder of the Mortgage Note and Mortgage and/or is entitled to enforce the Mortgage Note and Mortgage.” The first problem is that the allegations regarding entitlement to enforce the mortgage note are ambiguous. It is unclear whether Chase is “the holder” of the note or “a nonholder in possession of the note who has the rights of a holder.” Overlooking that ambiguity, it appears Chase attempted to allege entitlement to enforce the note under two statutory subsections: subsections 673.3011(1) and (2), Florida Statutes. Each theory of entitlement to enforce is examined separately.

The Allegation that Chase is Holder

Although Chase alleges it was a holder of the mortgage note when suit was filed, the copy of the mortgage note attached to the complaint negates the allegation. That is because the copy of the note attached to the complaint shows Aaxa Discount Mortgage, Inc., as the payee, and there is no copy of an indorsement or allonge attached to the complaint showing a transfer of holder status to Chase. Additionally, there are no allegations of ultimate facts showing a transfer of holder status to Chase. Although the majority contends a transfer can be inferred from the allegation “Plaintiff is now the holder of the Mortgage Note,” the inferential leap is not supported by any other statement of facts. In essence, the allegation is more a conclu-sory statement than a statement of ultimate fact.

Exhibits attached to the complaint are controlling, and “where the allegations of the complaint are contradicted by the exhibits, the plain meaning of the exhibits will control.” Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA 1994); see also Geico Gen. Ins. Co., Inc. v. Graci, 849 So.2d 1196, 1199 (Fla. 4th DCA 2003) (“When there are conflicts between the allegations [in the complaint] and documents attached as exhibits, the plain language of the documents control.”) (citation omitted).

The “plain meaning” of the note attached to the complaint is that Aaxa Discount Mortgage, Inc., is the holder of the note. With the copy of the note attached to the complaint as an exhibit showing no indorsements or allonges, as a matter of law, the complaint does not allege a cause of action with Chase as the holder of the note because the exhibit negates the allegation. Greenwald v. Triple D Props., Inc., 424 So.2d 185, 187 (Fla. 4th DCA 1983) (affirming dismissal of complaint with prejudice where the clear, unconditional wording of the assignment exhibit attached to the complaint on its face terminated plaintiffs right to foreclose); Richards v. HSBC Bank USA, 91 So.3d 233, 234-35 (Fla. 5th DCA 2012) (reversing a trial court’s order granting summary judgment where the copy of the note attached to the complaint showed it was payable to the original payee and contradicted the allegation in the complaint that the bank was the holder of the note and holding that filing the original assignment and allonge transferring note to HSBC did not rectify the inconsistency). Nowhere in the complaint is it alleged the mortgage note, at the time suit was filed, was a bearer note or indorsed note.

Additionally, Paladin Properties v. Family Investment Enterprises, 952 So.2d 560 (Fla. 2d DCA 2007), does not alter the analysis because, here, the attached exhibit clearly negates the allegation that Chase is the holder. Paladin Properties would arguably alter the analysis if there were allegations of ultimate facts in the complaint stating the mortgage note was indorsed in a manner to become a bearer instrument or indorsed to make Chase the payee on the mortgage note. There are no such allegations in this case. Thus, the complaint completely fails to allege a cause of action in favor of Chase as the holder of the note.

The Allegation that Chase is Nonholder With the Rights of a Holder

The allegation that “Plaintiff is ... entitled to enforce the Mortgage Note and Mortgage” is ambiguous, fatally vague, and conclusory. Ambiguous because it does not identify whether Chase is “the holder” of the note or “a nonholder in possession of the note who has the rights of a holder.” Fatally vague because there is no specific allegation of possession of the instrument. Conclusory because there are no ultimate facts pled to show the holder of the note assigned the rights of the holder to Chase.

Regarding the sufficiency of the pleadings in a complaint, it has been written that “while it is not sufficient to allege conclusions alone, ‘conclusions are not objectionable if they are supported by sufficient allegations of ultimate facts.’ ” Steigman v. Danese, 502 So.2d 463, 465 (Fla. 1st DCA 1987) (quoting Trawick, Fla. Prac. and Proc. § 6-6 (1985)); see also Cady v. Chevy Chase Sav. & Loan, Inc., 528 So.2d 136, 138 (Fla. 4th DCA 1988) (“Certainty is required when pleading ..., and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.”) (citations omitted). The vague, ambiguous, and conclusory statement that Chase is “entitled to enforce the Mortgage note” is not supported by statements of ultimate facts. If “a complaint is so vague, indefinite and ambiguous as to wholly fail to state a cause of action, it is subject to dismissal.” Frisch v. Kelly, 137 So.2d 252, 253 (Fla. 1st DCA 1962). To the extent the body of the complaint attempts to allege Chase is a nonholder in possession of the note with the rights of the holder, the complaint fails because the allegation is so vague, indefinite, ambiguous, and conclusory as to wholly fail to state a cause of action in favor of Chase, with the most fatal flaw being no specific allegation of possession of the note.

Thus, I conclude, as to both contentions (Chase is a holder of the note and Chase is a nonholder with the rights of a holder), that the complaint fails to state a cause of action in favor of Chase. Because possession of the mortgage note is a foundational requirement for entitlement to enforce the note, it is unfathomable why it is frequently the case that a true copy of the mortgage note being enforced is not attached to the complaint.

I also disagree with the majority that Chase’s act of filing the original note in the court file corrected the erroneous copy attached to the complaint and saved the day for Chase. The majority relies on Beaulieu in support of that contention. The brief opinion in Beaulieu does not describe facts or issues on appeal suggesting there was a contention that the complaint failed to state a cause of action. In Beaulieu, we said “[bjecause appellant defaulted [by failing to plead], she cannot contest, as she tries to do in her post-judgment motion, the allegations of the complaint that the appellee was the owner and holder of the note and mortgage.” Beaulieu, 80 So.3d at 365. However, it is unclear from the opinion what Beaulieu contended in her post-judgment motion.

As discussed below, the defense of failure to state a cause of action is waived if not presented prior to or during a trial or summary judgment hearing. Beaulieu cited State Farm Mutual Automobile Ins. Co. v. Horkheimer, 814 So.2d 1069, 1072 (Fla. 4th DCA 2001) and Chemical Residential Mortgage v. Rector, 742 So.2d 300 (Fla. 1st DCA 1998), for the contentions that a default admits all well-pled facts and waives any denial of the allegations that the mortgagee plaintiff was the owner and holder of the note. The discussion of facts and issues in both Horkheimer and Rector does not suggest there was any issue that the underlying complaints failed to state a cause of action. Because the complaint in this case did not state a cause of action, the default against the Jaffers did not admit them liability to Chase for payment on the mortgage note. Beaulieu does not support the contention that filing the actual mortgage note to be enforced in the court file after a copy of a different version of the note was attached to the complaint, corrects a pleading deficiency and avoids the need to move to amend the complaint.

As observed by our sister court,

A default admits liability as claimed in the pleading by the party seeking affirmative relief against the party in default. It operates as an admission of the truth of the well pleaded allegations of the pleading, except those concerning damages. It does not admit facts not pleaded, not properly pleaded or conclusions . of law. Fair inferences will be made from the pleadings, but forced inferences will not. The party seeking affirmative relief may not be granted relief that is not supported by the pleadings or by substantive laiv applicable to the pleadings. A party in default may rely on these limitations.

Becerra v. Equity Imps.,. Inc., 551 So.2d 486, 488 (Fla. 3d DCA 1989) (emphasis added) (citations omitted). Thus, the default against the Jaffers admitted nothing in terms of whether the complaint stated a cause of action.

Waiver of the Defense

Failure to state a cause of action is a specific defense recognized by Florida Rules of Civil Procedure 1.140(b) and (h)(2). Pertinent to the effect of the default entered against them and whether the Jaffers waived the defense by failing to file an answer or affirmative defense, rule 1.140(h) specifically provides in relevant part:

(1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).
(2) The defenses of failure to state a cause of action ... may be raised ... at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply. ...

Fla. R. Civ. P. 1.140(h)(2) (emphasis added). If the defense of failure to state a cause of action can be raised at trial when evidence is presented, even if not previously asserted by motion, answer, or affirmative defense, it certainly can be made at a summary judgment hearing where the court determines if the evidence supports a judgment. See Appel v. Lexington Ins. Co., 29 So.3d 377, 379 (Fla. 5th DCA 2010) (holding that summary judgment was properly denied because the complaint failed to state a cause of action and the defense was raised in opposition to summary judgment after a default was entered against the defendant for failure to plead).

There is no logical reason to allow the defense to be raised when evidence is presented by live testimony, but not allow the defense to be raised when evidence is provided by affidavits or written admissions. Moreover, if the defense can be raised at trial “in addition to being raised either in a motion ... or in an answer,” it would not appear the default entered against the Jaf-fers for failure to file an answer precluded their ability to raise the defense. The Jaffers properly raised the defense in their written opposition to the motion for summary judgment and argued the defense at the hearing on the motion.

There is a significant body of law from this court that standing must be raised as an affirmative defense or it is waived. See, e.g., Pacheco v. Indymac Fed. Bank, F.S.B., 92 So.3d 276 (Fla. 4th DCA 2012); Miller v. Kondaur Capital Corp., 91 So.3d 218 (Fla. 4th DCA 2012); Phadael v. Deutsche Bank Trust Co. Amen, 83 So.3d 893 (Fla. 4th DCA 2012). If standing is defined in its broadest sense, “a sufficient stake in an otherwise justiciable controversy,” the legal principle makes sense. However, I am puzzled how the legal principle can apply to standing in the more narrow sense of the real party in interest, meaning “the person in whom rests, by substantive law, the claim sought to be enforced.” Author’s Comment to Fla. R. Civ. P. 1.210 (1967). It would seem the onus should be on the plaintiff filing the cause of action to show entitlement to bring the action to enforce the claim. The application of the legal principle that-standing, must be raised by affirmative defense, when the defense is contesting whether the plaintiff has pled the predicate facts to show entitlement to enforce the claim and obtain a judgment, appears to me, quite frankly, unjust.

, Section 673.3011 makes it clear that entitlement to enforce a mortgage note depends on possession of the note, not an oumership interest in the note, and section 671.201(21) makes it clear that one cannot be a holder of the mortgage note unless the note is payable to the entity seeking to enforce or to the bearer. As the Jaffers pointed out in their brief, the portion of the mortgage note that gave Chase a cause of action against the Jaffers was the indorsement, and that portion of the mortgage note was not attached to the complaint, and there was no allegation of ultimate facts that the mortgage note had been indorsed. Thus, I disagree with the majority that the Jaffers’ failure to plead standing precluded them from raising a defense of failure to state a cause of action.

Depending on the actual facts, there were two scenarios for Chase to properly plead a cause of action for foreclosure in this case. If it was factually true that Chase was the holder of the note at the time suit was filed, it should have unequivocally pled it was the holder of the mortgage note and then attached a copy of the note properly indorsed to show Chase was the payee or the note was in bearer form. On the other hand, if Chase was a non-holder in possession of the note with the rights of the holder, it should have unequivocally pled its status as a nonholder in possession with the rights of a holder and ultimate facts specifically alleging (1) it had possession of the mortgage note, and (2) its authority to exercise the rights of the holder, and then attached a copy of the note made payable to the holder or properly indorsed to show the holder was the payee or the note was in bearer form.

The complaint in this case was deficient when filed. Subsequently, when Chase was prepared to file the original mortgage note with the court, it should have filed an amended complaint or sought leave of court to substitute a true copy of the note for the copy attached to the complaint before seeking a summary judgment. It did neither. As a result, Chase sought summary judgment on a complaint that failed to state a cause of action. The Jaffers defended against summary judgment on that basis, and the circuit court improperly granted summary judgment without Chase properly negating the defense. We should reverse.

      . In light of the unusual procedural posture of this case, we will assume, without deciding, that the law of the case doctrine does not bar the Jaffers from raising this issue on appeal.

      . The original note and mortgage were filed in 2010 in advance of the hearing on the first motion for summary judgment.

      . In situations in which the evidence at trial proves a cause of action different from the one pled in the complaint, a motion to amend the pleadings may be made. See generally Three Palms Assocs. v. U.S. No. 1 Fitness Ctrs. Inc., 984 So.2d 540 (Fla. 4th DCA 2008).

      . Although not discussed in case law, it appears section 673.3011 significantly narrows the scope of application of Florida Rule of Civil Procedure 1.210(a) (real party in interest) by focusing on who has possession, rather than ownership, of the negotiable instrument at the time suit is filed.

      . This statement assumes the mortgage note was not lost or paid or accepted by mistake, in which case enforcement without possession is allowed under section 673.3011(3), Florida Statutes.

      . Although Florida Rule of Civil Procedure Form 1.944 provides for the simple allegation "Plaintiff owns and holds the note and mortgage,” the paragraph immediately preceding that statement .in the form also states that a copy of the note and mortgage are attached. I submit the drafters of the form contemplated the copy of the note would show the plaintiff as the payee by being the original payee or a payee by indorsement, or the copy of the note would be in bearer form. In other words, I submit the drafters contemplated that the copy of the note attached would be completely consistent with the allegation that the plaintiff was the holder of the note as defined in section 671.201(21), Florida Statutes.

      . Because "holder” by definition requires possession of the instrument, possession is assumed when one is a holder. § 671.201(21), Fla. Stat. (2014); see also Black’s Law Dictionary (9th ed. 2009). In contradistinction, a "nonholder,” by definition, does not require possession of the instrument. See §§ 673.3011(1) and (2), Fla. Stat. (2014).

      . We have said that failure to raise the defense of failure to state a cause of action is waived if not raised prior to final judgment, and cannot be raised for the first time in a motion for relief from judgment or on appeal. Neuteleers v. Patio Homeowners Assoc., Inc., 114 So.3d 299, 301 (Fla. 4th DCA 2013).

      . The requirement makes sense, for example, if the defendant’s contention is that there is an issue of failure to join necessary or indispensable parties. The requirement also makes sense if the contention is capacity or authority of the named plaintiff to represent the interests of the real party in interest, if the real party in interest is not the named plaintiff.

      . If the note has a named payee (as the initial payee or a payee by indorsement), Florida Rule of Civil Procedure 1.210(a) clearly allows the named plaintiff to be a representative of the named payee, so long as the named plaintiff or the named payee has possession of the note. If the note is in bearer form, rule 1.210(a) allows the named plaintiff to be a representative of the bearer, so long as the named plaintiff or the bearer has possession of the note.

      . Since possession of the mortgage note is a foundational requirement for entitlement to enforce the note, it is hard to understand why plaintiff’s counsel is unable to discern, prior to filing suit, whether the plaintiff is the holder of the note or a nonholder in possession with the rights of a holder and why it is necessary to plead alternative theories.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Angel GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2940.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Rehearing Denied Feb. 20, 2015.
    Angel Guzman, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The defendant appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. He claims that his twenty-year sentence for his violation of his youthful offender probation is illegal because the sentence exceeds the six-year cap for a “technical or nonsubstantive violation” as stated in section 958.14, Florida Statutes (2003).

We have reviewed our records for the defendant’s direct appeal in case number 4D07-4303. Guzman v. State, 994 So.2d 1252, 1253 (Fla. 4th DCA 2008) (reversing the summary denial of a motion to withdraw plea after sentencing). The defendant admitted the violations of probation which included, among other things, his commission of a murder in an unrelated case. Thus, the violation clearly was “substantive.” Moreover, in his plea agreement admitting to the violations, he acknowledged that he was facing up to sixty years in prison for the two counts in this case. In sum, the defendant’s claim in this rule 3.800 motion and appeal is frivolous.

We caution the defendant that further filing of frivolous or false claims may result in sanctions and referral to prison officials for disciplinary proceedings. Oquendo v. State, 2 So.3d 1001, 1006 (Fla. 4th DCA 2008); Leyva v. State, 127 So.3d 570, 572 (Fla. 4th DCA 2012); Johnson v. State, 44 So.3d 198, 201 (Fla. 4th DCA 2010).

Affirmed.

CIKLIN, GERBER and FORST, JJ„ concur.


author: GROSS, J.

text:
    Ungray Lamar MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2527.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2015.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Ungray Murray appeals his conviction for sexual battery, contending the trial court erred in denying his motion to suppress DNA evidence obtained pursuant to a search warrant because the affidavit in support of the warrant contained intentional misstatements and omissions. While the affidavit contained several misleading statements, we nevertheless affirm for two reasons. First, under the inevitable discovery doctrine, since the DNA evidence recovered from the crime scene matched Murray’s DNA as uploaded to the nationwide CODIS registry, Murray’s DNA connection to the victim would eventually have been discovered, even if he had not otherwise been a suspect. Second, given the totality of information contained in the affidavit, the established inconsistencies were not sufficient, even if excised, were not sufficient to negate the magistrate’s probable cause finding.

Factual Background

The victim returned home after watching football with friends and fell asleep on her couch. At about 2:45 a.m., she was suddenly awakened by the sound of a loud bang on her front door and an individual exclaiming, “It’s the cops. Let me in.” Concerned, the victim peered through her front door window, only to be partially blinded by a flashlight. She was able to see that the person appeared to be wearing “police pants,” given their dark blue coloring and the “stick” attached to his belt. As the victim slowly opened her door, she asked about the reason for the visit; the man responded, “I’ll let you know ma’am when I get in.” Believing the answer to be unusual for a police officer, the victim attempted to shut the door, but the man overpowered her, forcing his way inside while warning, “Oh, you’re not dreaming. This is for real.” Upon this entry, the victim saw her assailant’s full features, observing that he was a thin, dark-skinned African American male wearing a dark blue hoodie covering all but his eyes and mouth.

Terrified, the victim screamed and reached for her cellphone, but the assailant grabbed her by the neck and tossed the phone away. With the victim subdued, the assailant ordered her to remove her clothes, grab his penis, and “put it” inside her vagina. In response, the victim took off her pants and did as told. The assailant then asked whether he was “in.” When the victim responded, ‘Well, I don’t know, I’m in menopause,” the assailant became bewildered, muttering to himself about “menopause” and “seed” — a euphemism, the victim believed, for the assailant “planting a pregnancy.”

The assailant asked the victim where she kept her money. Unhappy with the victim’s response, the assailant choked her to the point that she collapsed on her couch. He threatened, “Do you want to die, because you are[.] And I’m the one that’s going to kill you.” The assailant then struck the victim’s face, breaking her tooth, and repeatedly hit her in the temple. The victim began chanting “the Lord’s Prayer,” which only angered the assailant. Eventually, the assailant told the victim to “shut up” before strangling the victim until she lost consciousness.

Two hours later, when the victim came to, she found herself lying on her couch under a cardboard box that had been set on fire. The victim’s hands and feet were tied together by electrical cords. She was able to free herself, douse the fire with water, and call her neighbor to report the incident. Thereafter, authorities transported her to a local hospital, where doctors examined her and recovered DNA swabs from her vagina for later testing.

At the hospital, the victim met with a detective to chronicle her ordeal. In a recorded interview, she told the detective that she suspected her assailant to be “Andre” — an employee of J.A.Y. Ministries .who had cut her grass the previous year. “Andre” established a relationship with her, coming to her house in non-work hours to smoke cigarettes and discuss life. As one thing led to another, Andre several times expressed his romantic interest in the victim, which she rebuffed. One way Andre expressed his interest was by telling the victim, “One day I’ll put a seed in you, you’ll see. There will be a little Andre in you one day” — using the term “seed” just as the assailant did in his moment of bewilderment.

Aside from this odd locution, Andre’s build and mannerisms fit the characteristics of the victim’s assailant. Andre was the only person the victim knew to be as thin and dark as her assailant. Further, the assailant’s ■ distinctive white teeth matched those of Andre, and the assailant never cussed or acted rough “like a thug” — much like Andre. In fact, the victim believed her assailant even smelled like Andre, since she remembered the type of soap Andre used.

With this- information, the detective contacted J.A.Y. Ministries and learned of an employee named “Ungray Murray” who fit the description. During a voluntary interview, Murray told the detective he knew the victim from his days cutting her grass for J.A.Y. Ministries, but he had not seen her in a year. Murray further explained that he never had a personal relationship with the victim and never stepped foot in her house. Nevertheless, to clear his name, Murray allowed the detective to obtain a sampling of his DNA.

Somehow, law enforcement misplaced this DNA sample. A detective obtained a search warrant to recover a second DNA sample from Murray. Pertinent to this appeal, the detective’s affidavit supporting the search warrant set forth the following facts related to his investigation:

[During the hospital interview, the victim] stated that she knows a subject who she called “Andre”, later identified as Ungray Murray .... According to [the victim], Murray “[t]ook too much liking to her” as she continued to reject him. [The victim] stated that she met Murray approximately 1 year ago as Murray worked on lawns in the neighborhood with “Jay Ministries”. According to [the victim,] Murray was incarcerated back then and got out of jail on July of 2011. [The victim] stated that she has rejected Murray’s advances and has asked him to leave her property. [The victim] stated that Murray matches the weight, height, and voice of the suspect who raped her. [The victim] states that Murray, just like the suspect who raped her, does not curse and that the suspect and Murray have very “White teeth”.
Approximately one week from the time of the incident, [the victim] stated that the subject who tried to kill her and sexually battered her was Un-gray Murray. [The victim] stated that she was 99% sure. [The victim] met Murray at her residence because he did “yard work” for her. Murray later confirmed working for [the victim] in a sworn recorded statement, after being advised of his Miranda rights.

(Emphasis added).

After the search warrant’s issuance, the detective obtained a second DNA sample from Murray and submitted it for testing. Not only did a comparison of sperm fractions found on and inside the victim match Murray’s second DNA sample, but they also matched Murray’s DNA as inputted in 2006 into the Combined DNA Index System (“CODIS”).

Motion to Suppress

Prior to trial, Murray moved to suppress the DNA sample obtained via the search warrant, contending, among other things, that the detective’s affidavit contained false statements and omissions sufficient to invalidate the finding of probable cause. Specifically, Murray contended that, contrary to the affidavit, the victim did not identify “Ungray Murray” as the person who attacked her, nor did she tell the detective a week after the incident that “she was 99% sure” of Murray’s involvement. As to omissions, Murray asserted the victim told the detective in her taped interview at the hospital “that she ‘can’t see it being Andre’ but that he’s about the closest she can come to in terms of build.” The victim further explained in the same interview “that even though ‘Andre’ had a similar size and voice to the” assailant, a lot of men near Riviera Beach had similar voices and sizes.

During the suppression hearing, the parties stipulated that the victim’s pre-trial deposition would serve as her testimony. The victim stated that she “wasn’t positive” who perpetrated the sexual assault at the time she first met with the detective, but she “suspected” Andre’s potential involvement given his physical characteristics and his use of the term “seed.” Such uncertainty was evident in the following dialogue recorded during her hospital interview the morning of the incident:

[Detective]: [Y]ou mention this gentleman Andre, okay tell me about him.
[The victim]: Well, he just looks like the size you know the build just Andre.
[Detective]: How about his voice, you said his voice sounds familiar?
[The victim]: Yeah, well ...
[Detective]: Familiar?
[The victim]: Yeah, as around there in Riviera Beach, all the guys’ voices and they’re all about the same size all along Riviera Beach. Now Andre was somebody that took too much of a liking to me.
[Detective]: Okay.
[The victim]: And I said “no,” you know “just go.” But I can’t see it being Andre but to notice the build or anything, he’s the closest I could you know come to.

(Emphasis added).

The day after the hospital visit, the victim met with the detective for a second time, during which the victim identified a picture of Murray as “Andre” — her suspected assailant. Regarding her relative certainty of Murray’s involvement at the time, the victim stated in her deposition as follows:

Q: Did you tell [the detective] that you had any doubts, that you were sure, that you weren’t sure, that you were 50% sure? What did you say?
[The victim]: That I was pretty sure.
Q: Did you give a number?
[The victim]: Not really.
Q: Okay. Did you say that you were like 75% sure, fifty?
[The victim]: Ninety percent if you want a number. I said 90%.
Q: No, I don’t want a number. I’m wondering what you said to him.
[The victim]: Well, that’s just it. If you — about 90%. I wasn’t totally sure, at first.
Q: Well let me go back. I didn’t ask that question well at all because I led you into it. Tell me what you told him about how sure you were.
[The victim]: Ninety percent. I said I’m pretty sure. This is who I think it is.
Q: Okay. So the words that came out of your mouth was—
[The victim]: This is who I think it is.
Q: Okay.
[The victim]: Yes.
Q: And the 90% thing, you were telling me that. That’s not what you told the officer that day, right?
[The victim]: I just said, this [is] who I think it is.
Q: Okay.
[The victim]: It wasn’t no percentage at the time.
Q: Okay.
[The victim]: It was just, this is who I think it is.

During the suppression hearing, the detective described his investigation. He testified that upon receiving the victim’s suspicions of “Andre,” he went to J.A.Y. ministries, where he learned of Ungray Murray. The following day, after meeting with Murray, the detective contacted the victim over the phone, at which point she stated she was “99% sure that the person that cut her grass was the person that attacked her.” The detective conceded, however, that the victim never stated without qualification that “Ungray Murray” was the person who assaulted her.

A forensic biologist with the Palm Beach County Sheriffs Office testified regarding the procedures used to match Murray’s DNA with the sperm fractions recovered from the victim. The biologist explained that in comparing Murray’s second DNA sample to the DNA evidence recovered from the victim, she also received a match with Murray via the CODIS registry, since his DNA had been uploaded to'the system in 2006. The biologist testified that had there been no suspect for the victim’s sexual assault, she ultimately would have run the victim’s DNA evidence through the CODIS system and received a match with Murray.

The trial court denied the suppression motion upon two grounds. First, the trial court found that the inevitable discovery doctrine applied, since the DNA samples obtained from the victim “producefd] a CODIS hit which linked [Murray] directly to the crime”; the court found it logical to infer “that ultimately in the absence of a suspect [the DNA evidence recovered from the victim] would have been submitted” for testing, which would have resulted in the CODIS match. Second, the trial court denied the suppression motion on its substantive merits, finding that while “the affidavit itself certainly wasn’t entirely accurate,” the detective had, at the time, “already verified through his conversation with [Murray] ... that ... Murray had in fact cut the victim’s grass and knew her.” Further, the trial court believed the victim’s statement at the hospital that “it couldn’t have been Andre” was more likely than not a statement “reflecting disbelief that this person that she knew and had talked to and had cut her grass previously could have been this person who brutally attacked and raped her.”

Murray’s case proceeded to trial on the charges 'of sexual battery with force and attempted felony murder. The jury acquitted Murray of the attempted murder charge and found him guilty of the lesser included offense of sexual battery.

In his primary issue on appeal, Murray contends that the denial of his motion to suppress the DNA match was error “because the affidavit utilized by [the detective] was invalid, due to the detective’s false statements or misrepresentations of significant material facts from the search warrant’s application affidavit.”

“ ‘On a motion to suppress the fruits of a search in accordance with a -warrant, a trial court examines whether the issuing magistrate had a substantial basis for concluding that probable cause existed, and this determination is made by examining the affidavit in its entirety.’ ” Pilieci v. State, 991 So.2d 883, 892 (Fla. 2d DCA 2008) (quoting State v. Vanderhors, 927 So.2d 1011, 1013 (Fla. 2d DCA 2006)). Applying this standard, we afford the magistrate’s determination “great deference” while focusing our inquiry on whether, “based on the totality of the circumstances, and a common sense assessment, probable cause is shown.” Martin v. State, 906 So.2d 358, 360 (Fla. 5th DCA 2005) (citing Pagan v. State, 830 So.2d 792, 806 (Fla. 2002); McCall v. State, 684 So.2d 260, 262 (Fla. 4th DCA 1996)); State v. Rabb, 920 So.2d 1175, 1180 (Fla. 4th DCA 2006) (citing United States v. Soderstrand, 412 F.3d 1146, 1152 (10th Cir.2005)). As the Supreme Court explained in Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983):

after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s determination of probable cause should be paid great deference by reviewing courts. A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant [and] courts should not invalidate ... warrants] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.

Id. (internal quotations omitted).

Where there is no attack on the contents of an affidavit supporting a warrant application, review of a magistrate’s probable cause determination is typically limited to the contents of the warrant application, including the “four corners of the supporting affidavit.” Williams v. State, 130 So.3d 757, 759 (Fla. 2d DCA 2014) (citing Art. I, § 12, Fla. Const.); Redini v. State, 84 So.3d 380, 382 (Fla. 4th DCA 2012).

However, an evidentiary hearing is warranted where the defendant makes a substantial preliminary showing that (1) the affiant knowingly or intentionally, or with reckless disregard for truth, made untruthful statements or omitted important facts and (2) the untrue facts were necessary for the finding of probable cause or the omitted facts, “if added to the affidavit, would have defeated probable cause.” Pagan, 830 So.2d at 807. The second district has explained the dynamics of such a hearing:

Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if a defendant makes a substantial preliminary showing that the affiant knowingly or intentionally or with reckless disregard for the truth included a false statement in the affidavit, and that statement was necessary to the finding of probable cause, the circuit court must hold a hearing. If the defendant establishes these allegations by a preponderance of the evidence, the court must suppress the fruits of the search. The federal courts have extended the reasoning of Franks to apply to an allegation that law enforcement omitted material facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading. United States v. Colkley, 899 F.2d 297, 300 (4th Cir.1990) (citing United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986)); see also Johnson v. State, 660 So.2d 648, 656 (Fla.1995) (adopting the reasoning of Colkley to extend Franks to apply to material omissions resulting from “intentional or reckless police conduct that amounts to deception”).

Pilieci, 991 So.2d at 893. “In short, to meet the Franks test, police conduct must rise to the level of hoodwinking or bilking, duping the issuing judge or magistrate into signing the warrant....” State v. Petroni, 123 So.3d 62, 65 (Fla. 1st DCA 2013).

Applying this procedure, a reviewing court’s finding that the police acted in a deceptive manner will not, by itself, result in automatic suppression. Under such circumstances, the reviewing court

must excise the erroneous material and determine whether the remaining allegations in the affidavit support probable cause. If the remaining statements are sufficient to establish probable cause, the false statement will not invalidate the resulting search warrant. See Terry v. State, 668 So.2d 954 (Fla.1996). If, however, the false statement is necessary to establish probable cause, the search warrant must be voided, and the evidence seized as a result of the search must be excluded. See id. (citing Franks, 438 U.S. at 156, 98 S.Ct. 2674); see also Thorp v. State, 777 So.2d 385 (Fla.2000).

Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004) (quoting Pagan, 830 So.2d at 807).

Even if the warrant was deficient, the DNA match to Murray is admissible under the inevitable discovery doctrine

Regardless of the affidavit’s omissions or falsities, the trial court correctly concluded that Murray’s second DNA swab was admissible under the inevitable discovery doctrine. “Under this exception, evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means.” Maulden v. State, 617 So.2d 298, 301 (Fla.1993). The rationale is that the “[e]xclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” Nix v. Williams, 467 U.S. 431, 446, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

“For the inevitable discovery doctrine to apply, the State must establish that the evidence would have been discovered ‘by means of normal' investigative measures that inevitably would have been set in motion as a matter of routine police procedure.’” Rowell v. State, 83 So.3d 990, 995 (Fla. 4th DCA 2012) (quoting Craig v. State, 510 So.2d 857, 863 (Fla.1987)). “In other words, the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct.” Moody v. State, 842 So.2d 754, 759 (Fla.2003). The prosecution must also “show that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct.” Rowell, 83 So.3d at 995.

In this case, law enforcement obtained DNA evidence from the victim the morning of her sexual assault. In comparing this evidence to Murray’s second DNA sample, the assigned forensic biologist testified that she also ran the results through the nationwide CODIS system, which returned a match for Murray. Even assuming that the search warrant was not supported by probable cause or that Murray had not been identified, given the nature of the crime, law enforcement would eventually have tested the sperm fractions recovered from the victim and run them through the CODIS system, resulting in a match with Murray. See, e.g., State v. Notti, 316 Mont. 345, 71 P.3d 1233, 1239 (2003) (“Notti’s DNA profile would have been placed on the State’s DNA Identification Index and submitted to CODIS, which would have inevitably led to the discovery of a match by either a CODIS computer check or when another Crime Lab employee compared profiles in the ‘forensic unknown’ database with the State’s DNA Identification Index.”); United States v. Gross, 554 F.Supp.2d 773, 776-77 (N.D.Ohio 2008) aff'd in part, rev’d in part, 624 F.3d 309 (6th Cir.2011) (“As the use of Defendant’s on-file DNA would not invoke[ ] any Fourth Amendment issue, the Government was free to compare the DNA from the firearm to Defendant’s DNA in possession of the State of Ohio. As DNA does not change over time, the Government inevitably would have matched Defendant’s DNA to the DNA on the firearm, even without a warrant for the buccal swab.”).

The deficiencies in the affidavit do not negate the finding of probable came

Alternatively, the trial court did not err in finding the affidavit’s misstatements or omissions insufficient to negate probable cause. A probable cause inquiry is an inexact science, not “susceptible to formulaic determination.” Doorbal v. State, 837 So.2d 940, 952 (Fla.2003). When making the determination,

[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S.Ct. 2317; see also Green v. State, 946 So.2d 558, 561 (Fla. 1st DCA 2006).

Murray’s chief argument derives from the detective’s statements in his affidavit that the victim identified “Ungray Murray as the person who attacked her” and “stated that she was 99% sure” of that fact. While it is true — as the detective conceded at the suppression hearing — that the victim never referred to her assailant as “Ungray Murray,” the victim did identify a picture of Murray as the “Andre” she suspected to be her assailant. Furthermore, the victim during her hospital interview provided substantial descriptions justifying her reasons for suspecting Andre, particularly his likeness in physical appearance and vocal and physical mannerisms.

To the extent the victim was not 99% certain during her second interview that her assailant was “Ungray Murray,” this conjecture, when excised, does not negate a finding of probable cause. According to the remaining portions of the affidavit, the victim told the detective that Andre mowed her lawn while working for J.A.Y. Ministries, that he frequently expressed romantic interest in her, and that he “match[ed] the weight, height, and voice of her suspect[ed]” assailant as well as his mannerisms. During a later interview, Murray confirmed his business relationship with the victim and J.A.Y. Ministries, demonstrating that he was the “Andre” the victim purported to know. Probable cause is a relatively flexible threshold, dependent upon a common-sense determination. It cannot be said that the search warrant would not have issued without consideration of the challenged facts.

The same reasoning applies to the omissions from the affidavit. First, Murray contends that the detective’s affidavit should have included the victim’s statement from her hospital interview that she “can’t see it being Andre.” However, as the trial court found, this statement could easily be interpreted as a side comment expressing her disbelief that a person she knew could have.been capable of such a crime. Next, Murray contends the detective should have included the victim’s statement from the same interview that “Andre” had a similar voice and size to many men in Riviera Beach. While this statement would have shed light on the strength of the victim’s identification, it does not negate the other facts in the affidavit that established “Andre’s” connection to the victim. Had the omitted facts been included in the affidavit, there would still have been probable cause to obtain a DNA sample from Murray.

We have considered the other issue raised on appeal and find no abuse of discretion in the trial court’s ruling on the additional jury instruction.

Affirmed.

DAMOORGIAN, C.J., and MAY, J., concur.


text:
    Thomas A. WEBSTER, Appellant, v. CHASE HOME FINANCE, LLC, et al., Appellees.
    No. 5D14-511.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.

      George M. Gingo and James Orth, of Gingo & Orth, P.A., Titusville, for Appellant.
    Elizabeth T. Frau, of Ronald R. Wolfe & Associates, P.L., Tampa, for Appellee, Chase Home Finance, LLC.
   PER CURIAM.

Thomas Webster appeals the final judgment of foreclosure rendered in favor of Chase Home Finance, LLC. He contends that he was not given proper notice of the default in payments.

We believe the issue is an evidentiary matter. Under the specific provisions of the mortgage, notice to one mortgagor constitutes sufficient notice to the other mortgagor, and Webster does not contend otherwise. Chase attempted to prove that notice was provided to the other mortgagor, Patrice Kelty, at the address Kelty had designated in a written change-of-address document she had provided to Chase. This written change of address was permitted under the provisions of the mortgage. However, the problem is that Chase was allowed, over Webster’s hearsay objection, to present oral testimony from a witness regarding this change of address and its notice to Kelty at that new address. The trial court should have required Chase to present its business record of the written change-of-address document that it claims Kelty executed to change the address where notice was to be provided. The trial court abused its discretion in allowing this oral testimony over Webster’s objection.

Accordingly, we reverse the judgment under review and remand for further proceedings on the issue of proof of the written change-of-address document allegedly signed by Kelty. See Sas v. Fed. Nat’l Mortg. Ass’n, 112 So.3d 778 (Fla. 2d DCA 2013); see also Holt v. Calchas, LLC, 39 Fla. L. Weekly D2305, 2014 WL 5614374 (Fla. 4th DCA Nov. 5, 2014) (citing to Sas and holding that the “proper” approach to handling the failure of the lender to provide information sufficient to show the debt due was to remand for further proceedings based on the error of allowing a witness to testify over a hearsay objection).

REVERSED and REMANDED for further proceedings.

SAWAYA, PALMER, and ORFINGER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Jose FIGUEROA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1357.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2015.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

The State charged Jose Figueroa with failing to register as a sexual offender pursuant to section 943.0435(4)(a), Florida Statutes (2010), and a jury convicted him of that crime. He contends that the evidence did not support his conviction because that subsection applies only to an offender who changes his residence within the State of Florida, not to an offender who moves to another jurisdiction. We conclude that the trial court should have granted Figueroa’s motion for judgment of acquittal on this point, and therefore we reverse and remand with directions to discharge him.

Figueroa testified that in May 2010, he registered as a sexual offender with the Hillsborough County Sheriffs office, listing an address within the county. But later that month he moved to Puerto Rico, where he was born and where his family lived. He returned to Florida only when, in April 2012, U.S. Marshals arrested him in Puerto Rico and brought him back to Florida to face the instant failing to register charge. Figueroa recounted that he had tried to register at a police station in Puerto Rico, but he was told that it was unnecessary to do so if he had not committed a crime in that jurisdiction.

Figueroa was charged with violating section 943.0435(4)(a), which states in pertinent part:

(4)(a) Each time a sexual offender’s driver’s license or identification card is subject to renewal, and, without regard to the status of the offender’s driver’s license or identification card, within 48 hours after any change in the offender’s permanent, temporary, or transient residence or change in the offender’s name by reason of marriage or other legal process, the offender shall report in person to a driver’s license office, and is subject to the requirements specified in subsection (3).

But section 943.0435 also provides, in subsection (7), that:

(7) A sexual offender who intends to establish a permanent, temporary, or transient residence in another state or jurisdiction other than the State of Florida shall report in person to the sheriff of the county of current residence within 48 hours before the date he or she intends to leave this state to establish residence in another state or jurisdiction. The notification must include the address, municipality, county, and state of intended residence. The sheriff shall promptly provide to the department the information received from the sexual offender. The department shall notify the statewide law enforcement agency, or a comparable agency, in the intended state or jurisdiction of residence of the sexual offender’s intended residence. The failure of a sexual offender to provide his or her intended place of residence is punishable as provided in subsection (9).

(Emphasis added).

At the close of all evidence, Figueroa moved for a judgment of acquittal on the ground that the State had charged him under the wrong subsection. The only evidence in the case regarding Figueroa’s residency was his own testimony that he moved from his registered address in Hillsborough County to Puerto Rico. The State offered no evidence of an interim move within Florida that would have triggered the section 943.0435(4)(a) requirement that a sexual offender “report in person to a driver’s license office” about his change in residence. And as the defense aptly noted, it would be impossible for someone living in Puerto Rico to “appear in person” at a Florida driver’s license office. Nor would a Puerto Rico resident be eligible to obtain a Florida driver’s license or identity card. See § 943.0435(4)(a) (subjecting the offender to requirements of subsection (3) of the statute); § 943.0435(3)(a) (requiring the offender to secure or renew a Florida driver’s license or to obtain a Florida identification card).

We recognize that section 943.0435(4)(a) does not specifically state that it pertains only to an offender’s change of residence within this state. But that is the clear assumption behind the subsection’s directive to report in person at a Florida driver’s license office within 48 hours after the move. In contrast, section 943.0435(7) does specify that it applies to an offender who “intends to leave this state to establish residence in another state or jurisdiction.” Applying the doctrine of in pari materia, we read statutes relating to the same subject matter together iy order to harmonize the provisions and to effect the legislature’s intent. See Larimore v. State, 2 So.3d 101, 106 (Fla.2008). Section 943.0435(7) specifically sets forth the obligations imposed on an offender who establishes residency outside Florida; by clear implication, section 943.0435(4)(a) does not. Reading the statutes together, as we must, we conclude that subsection (4)(a) applies only to a move inside Florida, while subsection (7) concerns a move outside the state.

The Florida Supreme Court’s adoption of Standard Jury Instructions 11.14(d) and 11.14(e) supports our analysis of these statutory subsections. See In re Standard Jury Instructions in Criminal Cases — Report No. 2007-1, 983 So.2d 531, 536-38 (Fla.2008). When the crime of'failure to register as a sexual offender is charged under section 943.0435(7), the jury must find that the accused “[established] [maintained] a permanent, temporary, or transient residence in (name of county) County, Florida,” and that he “intended to leave this State to establish residence in another state or jurisdiction on (date).” Fla. Std. Jury Instr. (Crim.) 11.14(e). Standard instruction 11.14(d), which is given when the crime is charged under section 943.0435(4), contains no such proviso.

The Fifth District examined this question in Binder v. State, 853 So.2d 537, 539 (Fla. 5th DCA 2003), albeit in the reverse scenario. Although Binder was charged with violating section 943.0435(7), the evidence established that he had not moved outside Florida but rather had changed residences within the City of Kissimmee. It appeared to the Fifth District that Binder had been charged under the wrong statutory subsection. But Binder had never raised the issue in the trial court. He had pleaded nolo contendere to the offense without objecting to the mistaken charge or reserving his right to appeal, and he had not moved to withdraw his plea. For this reason, the court determined that he could not attack the conviction on appeal. Here, however, the issue is squarely before us because Figueroa moved for a judgment of acquittal on the ground that the evidence could not support a conviction under the subsection he was charged with violating.

Section 943.0435(4)(a) did not apply to the facts of this case, and the evidence presented at trial did not prove a violation of that statutory crime. We reverse Figueroa’s conviction and remand with directions to discharge him.

SILBERMAN and CRENSHAW, JJ., Concur.

      . The legislature amended section 943.0435(7) in 2014 to explicitly state that it applies to an offender who intends to establish a residence outside the United States. Ch. 14-5, § 5, at 102, Laws of Fla.


author: CASANUEVA, Judge.

text:
    James L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-722.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2015.
    Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    James L. Johnson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   CASANUEVA, Judge.

We affirm James L. Johnson’s judgments and sentences in this Anders appeal without discussion. However, this af-firmance is without prejudice to Johnson filing a facially sufficient motion seeking additional jail time credit pursuant to Florida Rule of Criminal Procedure 3.801.

During the pendency of this appeal, Johnson filed a pro se “Petition to Correct Jail Credits,” pursuant to Florida Rule of Criminal Procedure 3.800(a). The circuit court properly struck this motion because it was filed during the pendency of an appeal. See Scott v. State, 976 So.2d 628 (Fla. 2d DCA 2008). The circuit court also noted that Johnson’s motion was filed pri- or to the effective date of rule 3.801, requiring that all jail credit claims be raised pursuant to that new rule.

For sentences imposed prior to July 1, 2013, as in Johnson’s case, the time for filing a rule 3.801 motion expired on July 1, 2014. Fla. R. Crim. P. 3.801(b). Because this deadline expired during the pen-dency of this appeal, we affirm without prejudice to Johnson filing a facially sufficient rule 3.801 motion within thirty days of the issuance of this court’s mandate. See Vincent v. State, 149 So.3d 1151 (Fla. 4th DCA 2014). A motion filed within this time will not be deemed untimely or successive.

Affirmed without prejudice.

WALLACE and SLEET, JJ., Concur.

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

      . Johnson also raised the issue of additional jail credit time in his pro se Anders brief.


author: ALTENBERND, Judge.

text:
    Luis MORA and ROSAURA MORA, appellants, v. TOWER HILL PRIME INSURANCE COMPANY, Appellee.
    No. 2D13-4125.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2015.

      A. Lee Smith and Aaron S. Kling of Thompson Trial Group, P.A., Tampa, for Appellants.
    Anthony J. Russo and Ez'equiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee.
   ALTENBERND, Judge.

Luis and Rosaura Mora appeal a final summary judgment entered in favor of Tower Hill Prime Insurance Company. The judgment rescinded their homeowners insurance policy based on the theory that the Moras had misrepresented the condition of their home in violation of section 627.409, Florida Statutes (2007), when they submitted their applications for the coverage. We reverse because the limited evidence in the record at the time of the hearing on Tower Hill’s motion for summary judgment did not establish its right to obtain a summary judgment on this defense. See Griffin v. Am. Gen. Life and Accident Ins. Co., 752 So.2d 621 (Fla. 2d DCA 1999).

The Moras, who happen to be realtors, decided to purchase a model home in November 2005. The home had been built in 2002 and had been used for three years as the builder’s office and model. In connection with this purchase, the Moras obtained a homeowners insurance policy from Tower Hill. In 2007, apparently because of a change in occupancy status, this policy was cancelled and replaced with another Tower Hill policy. The replacement policy was renewed for the period of November 30, 2009, to November 30, 2010.

In July 2010, nearly five years after the purchase of the home, the Moras made a sinkhole claim. This claim was investigated by Tower Hill, and it confirmed that sinkhole damage had occurred. The Mor-as and Tower Hill apparently disagreed on the extent of the damage and the amount Tower Hill owed to the Moras. As a result, the Moras sued Tower Hill in 2011.

It is undisputed that the Moras signed an application for the original policy and for the replacement policy. On page four of each of the form applications, the question appears: “Do you have any knowledge of any prior repairs made to any structures on the insured location for cracking damage?” On each application, the box next to this question is checked “no.”

During discovery, Tower Hill obtained a real estate inspection form that was prepared when the Moras purchased this home. They also obtained a form identified as the builder’s “Homeowner Orientation 1.1,” or homeowner orientation report. On these forms, there are notations that a crack existed around the pool deck and that a “large crack” existed on the ceilings of the living room, the dining room, the family room, and the home theater. The homeowner orientation report was signed by Mrs. Mora, and it has handwritten notations that appear to be instructions for repairs. The handwritten notations may be those of one of the Moras. These notations include: “repair 3 cracks in drywall at ceiling,” “repair drywall at ... stairwell base board,” “repair nook window drywall cracks,” “repair cracks at entry under soffit (stucco),” and “fix cracks” under three windows.

The Moras were not asked about these documents during their depositions. It may be that the documents were obtained by discovery after those depositions were taken. Tower Hill moved for summary judgment, relying on the questions about “cracking damage” in the applications and on the two documents from the home inspection. It submitted an affidavit from an assistant vice president of underwriting that identifies these documents and then concludes:

17. Had Tower Hill known of the existing cracking damage to the property, as listed on the Real Estate Inspection report, and the Homeowner Orientation report, it would not have issued [the original policy].
18. Had Tower Hill known of the existing damage to the property, as listed on the Real Estate Inspection report, and the Homeowner Orientation report, it would not have issued [the replacement policy].

When moving for summary judgment, Tower Hill did not file any photographs or other evidence describing the nature or extent of the “cracks” mentioned in the inspection reports from 2005. It filed a two-page affidavit from an employee of the builder that simply authenticates the real estate inspection form and homeowner orientation report as belonging to the Moras. There are no depositions or affidavits from anyone who may have performed the requested repairs or who was able to explain more about the “cracks” mentioned in these forms. Mr. and Mrs. Mora each testified when deposed in 2012 that they did not recall noticing any cracks in the house at the time of purchase seven years earlier.

Based only on this evidence, the trial court granted summary judgment in favor of Tower Hill declaring the homeowners policy void. The Moras appeal that summary judgment.

Section 627.409 allows an insurer to forfeit coverage when an insured makes certain misrepresentations. This section provides in pertinent part:

A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requii’ement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

§ 627.409(l)(a)-(b).

The statute allows a policy to be forfeited under at least two distinctly different circumstances. First, the misrepresentation may be an intentional act of fraud. If the insured knowingly makes a false statement in hopes that the insurance company will rely on that statement to issue the insurance policy, there is no dispute that the policy can be rescinded. See, e.g., Gainsco v. ECS/Choicepoint Servs., Inc., 853 So.2d 491, 492-93 (Fla. 1st DCA 2003). Proof of such fraud, of course, is difficult. The insurer has the burden of proof to establish a misrepresentation. Griffin, 752 So.2d at 623. Thus, actual fraud is not the most common circumstance under which insurers avoid paying claims under insurance policies. In this case, Tower Hill does not argue that it established actual fraud as a matter of undisputed fact.

But a policy can also be rescinded when a misrepresentation is “material to the acceptance of the risk” or “if the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract.” See § 627.409(1)(a), (b). It is well established that in these instances a misrepresentation need not be knowingly made in order for the insurer to void the policy. See Cont’l Assurance Co. v. Carroll, 485 So.2d 406 (Fla.1986). But “forfeitures of insurance policies are not favored [in Florida], especially when the event that gives rise to the insurer’s liability has occurred.” LeMaster v. USAA Life Ins. Co., 922 F.Supp. 581, 585 (M.D.Fla.1996) (citing Johnson v. Life Ins. Co. of Ga., 52 So.2d 813, 815 (Fla.1951), and Travelers Protective Ass’n of Am. v. Jones, 91 F.2d 377, 378 (5th Cir.1937)). Thus, on a claim to rescind a policy based on a misrepresentation that falls short of fraud, the insurer must prove that the insured’s statement is a misrepresentation, that it is material, and that the insurer detrimentally relied on it. See Griffin, 752 So.2d at 623 (citing Douglas v. Mut. Life Ins. Co. of N.Y., 191 So.2d 488 (Fla. 2d DCA 1966)). Under subsection 627.409(1)(b), the insurer needs to provide an explanation as to why “in good faith” and “pursuant to a policy requirement or other requirement” it would not have issued the policy or would not have issued it under the same terms.

Tower Hill fell short of its burden of proof for this summary judgment in at least two respects. First, it did not establish beyond factual dispute that the answer to the question in the application is incorrect or is a misrepresentation. Second, assuming the statement is a misrepresentation, Tower Hill’s proof does not establish that the representation is material to the acceptance of its risk or that the true facts would have caused it not to issue these policies.

As to the first deficiency, Tower Hill seems to equate “cracking damage” in its application with “cracks” or “repair” of cracks on the inspection forms. We conclude that an insured might not regard repair of common drywall or stucco cracks as a matter that involved more than normal maintenance. In other words, an insured might conclude that Tower Hill added the word “damage” to the question to limit the inquiry to events more significant than common drywall “cracking.” As explained in Mercury Insurance Co. of Florida v. Markham, 36 So.3d 730, 733 (Fla. 1st DCA 2010):

An insurer may not deny coverage under this statute, however, if the alleged misrepresentation was in response to an ambiguous question. See Boca Raton Comty. Hosp., Inc. v. Brucker, 695 So.2d 911, 913 (Fla. 4th DCA 1997); Comprehensive Benefit Adm’rs, Inc. v. Nu-Cape Constr., Inc., 549 So.2d 700 (Fla. 2d DCA 1989). A question is ambiguous when it is susceptible to two reasonable interpretations, one in which a negative response would be correct and one in which an affirmative response would be correct.

If Tower Hill intended “cracking damage” to include all repairs of any crack in drywall or stucco, then it would seem the questions on its applications were ambiguous. In this record, Tower Hill has not established beyond factual dispute that the Moras made a misrepresentation on their applications when they indicated that they were unaware of any prior repairs for “cracking damage” on their home.

As to the second deficiency, on this record the “true facts” for purposes of section 627.409. are nothing more than facts that the house had drywall, stucco, and other cracks that were resolved without complication by the builder before the sale to the Moras in 2005. It is a simple fact of life that most new Florida homes develop nonstructural cracks in drywall, stucco, and other areas in the several years following their construction. Tower Hill cannot seriously contend that it refuses to insure all homes in Florida that have a history of minor maintenance to drywall and stucco at the time of the application. If that were true, then it would only insure a handful of homes in Florida.

We would expect that a positive answer to Tower Hill’s question about cracking damage on its application would lead to further investigation to determine if the true facts indicate a condition material to the risk or a matter that might cause Tower Hill to underwrite the risk in a different manner. But at this point in the litigation, our expectations are not important to the outcome of the case. The conclusory opinion of Tower Hill’s assistant vice president of underwriting in the affidavit simply does not present sufficient facts to explain why the answers to this specific question on the applications were material to the risk and something on which Tower Hill detrimentally relied or why the “true facts” in the inspection reports were a matter that would have caused Tower Hill “in good faith” not to issue the two policies “pursuant to a policy requirement or other requirement.”

Accordingly, we reverse the summary, judgment and remand for further proceedings.

Reversed and remanded.

CRENSHAW, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . The Moras filed for bankruptcy in 2009 or 2010, but there is nothing in the record indi-eating that this has affected the matters on appeal in this case.

      . In most, if not all, circumstances in which disclosure of the "true facts” would have led the insurer in good faith not to issue the policy — satisfying subsection 627.409(1 )(b)— the insured's misrepresentation would also be "material to the acceptance of the risk” under subsection (l)(a). Thus, there is a great degree of overlap between the two provisions of the statute.


text:
    B.W.P., Appellant, v. A.L.H., Appellee.
    Nos. 2D13-4919, 2D13-5653.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2015.
    Luis E. Insignares of Luis E. Insig-nares, P.A., Fort Myers, for Appellant.
    Theresa Daniels of Goldstein, Buckley, Cechman, Rice & Purtz, P.A., Fort Myers, for Appellee.
   CASANUEVA, Judge.

B.W.P., a sperm donor, appeals an order dismissing his amended petition to determine paternity with prejudice and a related order granting attorney’s fees to A.L.H., the mother. We conclude that the trial court did not err in dismissing the amended petition with prejudice, because even if B.W.P. is correct that there was no valid written contract between the parties limiting his ability to assert parental rights, section 742.14, Florida Statutes (2012), precludes him from asserting such rights. See Lamaritata v. Lucas, 823 So.2d 316 (Fla. 2d DCA 2002).

However, we conclude that the trial court erred in awarding attorney’s fees to A.L.H. pursuant to section 57.105, Florida Statutes (2012). The court found that B.W.P. knew or should have known that his petition and amended petition were “insufficient on the facts and the law.” Section 57.105(3) states that notwithstanding whether an action is not supported by the facts or the application of then-existing law, fees may not be awarded if the claim “was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.”

As recognized by the Fourth District, attorney’s fees should not be awarded pursuant to section 57.105 when the losing party attempted in good faith to advance a novel question of law. Vasquez v. Provincial S., Inc., 795 So.2d 216, 218 (Fla. 4th DCA 2001) (“Florida favors access to the courts and has interpreted section 57.105 to provide a remedy only where the plaintiffs complaint is completely untenable. An award of attorney’s fees is not appropriate as long as the complaint alleges some justiciable issue.”). In his petition, B.W.P. attempted to advance a novel question of law. See generally D.M.T. v. T.M.H., 129 So.3d 320, 328 (Fla.2013) (holding section 742.14 “unconstitutional as applied under the Due Process Clauses of the Florida and United States Constitutions and under the privacy provision of the Florida Constitution”); Jason P. v. Danielle S., 226 Cal.App.4th 167, 171 Cal.Rptr.3d 789, 797-98 (2014) (deciding that sperm donor could not rely on doctrine of equitable estoppel to argue that the mother was not entitled to the protection afforded her under California’s statute addressing the rights of a donor).

Accordingly, we affirm the order dismissing B.W.P.’s amended petition to determine paternity with prejudice, but we reverse the order granting A.L.H. an award of attorney’s fees pursuant to section 57.105.

Affirmed in part; reversed in part.

KHOUZAM and MORRIS, JJ., Concur.

      . B.'W.P. and A.L.H. agreed that she would be artificially inseminated without the help of a fertility clinic.


text:
    Stanley PANOPOULOS, Appellant, v. Maria M. PANOPOULOS, Appellee.
    No. 2D13-5234.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2015.
    John A. Shahan, Tarpon Springs, for Appellant.
    Johnny D. Drizis of Law Office of Johnny D. Drizis, Clearwater, for Appellee.
   PER CURIAM.

In this appeal, Michael Panopoulos, Former Husband, challenges an award of du-rational alimony to Maria Panopoulos, Former Wife. Because the relevant order was not timely appealed, we dismiss this appeal for lack of jurisdiction.

Former Wife petitioned for dissolution of her twenty-three-year marriage to Former Husband. In a highly unusual procedure, the circuit court trifurcated the dissolution proceedings. The circuit court first dissolved the marriage by an order not on appeal. It then separated the remainder of the proceedings by purporting to address “all financial issues” first: it entered the appealed-from “partial final judgment” on those issues, while reserving on timesharing and child support for the parties’ minor children. In her petition, Former Wife sought retroactive alimony which the court denied; however, in its “partial final judgment,” it awarded alimony to be paid starting on October 1, 2012. The parties agreed that there was a scrivener’s error and decided to contact the judge’s judicial assistant, rather than filing a motion for rehearing, recognizing the date in the order should have been October 1, 2013. The court issued an amended order that corrected the error. Former Husband filed his notice to appeal that order on October 23, 2013.

Former Husband’s notice of appeal was not timely. The initial order was rendered on September 18, 2013. The order was amended to correct the scrivener’s error in a date and the amended order was rendered on October 14, 2013. The notice of appeal was filed on October 23, 2013. Accordingly, the notice was timely filed from the corrected order but untimely as filed from the initial. See Fla. R. App. P. 9.130(b) (stating that a notice of appeal must be filed within 30 days of rendition of the order to be reviewed). The timing of the filing of the notice of appeal is a jurisdictional matter. El Gohary v. El Gohany, 76 So.3d 355, 356-57 (Fla. 2d DCA 2011). The case law is clear that where a judgment is amended to correct only a scrivener’s error, the time for appeal is not tolled and instead is counted from the date of the initial order. See Commonwealth Land Title Ins. Co. v. Freeman, 884 So.2d 164, 168 (Fla. 2d DCA 2004) (“When a party wishes to challenge a judgment by motion or appeal, the time to challenge the judgment runs from the original judgment unless an amendment changes or clarifies a matter of substance.” (citing St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971))). In this case, the amendment of the judgment was solely to correct an error in a date and did not effect a substantive change. Accordingly, the time to appeal from the order in this case commenced September 19, 2013, the day after the first order was rendered. See Fla. R. Jud. Admin. 2.514(a)(1)(A). The filing of the notice of appeal was October 23, over thirty days later. Thus, the appeal was untimely and we are without jurisdiction to entertain it. Fortunately for Former Husband, due to the unusual proceedings in this case, the issues raised in this appeal will likely be within the scope of review of an appeal from a final order of dissolution. See Fla. R. App. P. 9.110(h) (“The court may review any ruling or matter occurring before filing of the notice.”).

Appeal dismissed.

ALTENBERND, NORTHCUTT, and CRENSHAW, JJ., Concur.

      . It is an exceptional dissolution proceeding in which bifurcation is a good idea. A trial court should not bifurcate proceedings unless "it is clearly necessary for the best interests or their children.” Claughton v. Claughton, 393 So.2d 1061, 1062 (Fla.1980). This trifurcation is even more unusual.