source: Caselaw Access Project

author: WINDOM, Presiding Judge. JOINER, Judge,

license: Public Domain

text:
    Ildefonso AUSTIN v. ALABAMA DEPARTMENT OF CORRECTIONS.
    CR-11-1943.
    Court of Criminal Appeals of Alabama.
    Feb. 15, 2013.
    Ildefonso Austin, pro se.
    Luther Strange, atty. gen., and Anne A. Hill, gen. counsel, and Elizabeth Sees, asst. atty. gen. Department of Corrections, for appellee.
   WINDOM, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH and KELLUM, JJ., concur.

JOINER, J., concurs in the result, with opinion.

BURKE, J., joins in special writing.

JOINER, Judge,

concurring in the result.

I concur that the judgment in this matter is due to be affirmed. I disagree, however, with the rationale of the majority.

Ildefonso Austin, an inmate in the custody of the Alabama Department of Corrections (“the Department”), was found guilty of violating “rule number 64[,] specifically possession of contraband,” and, as a consequence, lost visitation privileges for 6 months, and phone and store privileges for 45 days. Austin subsequently filed in the Montgomery Circuit Court a petition for a writ of certiorari arguing that the Department’s action “was contrary to the uncon-tradicted evidence, and, therefore, arbitrary or capricious.” (C. 9.) In response, the Department moved the circuit court to dismiss the petition, arguing that Austin was not entitled to due process because he had lost no liberty interest — e.g., incentive good time — and, alternatively, that Austin had, in fact, been afforded the appropriate level of due process. (C. 42 — 43.) The circuit court granted the motion to dismiss, and Austin now appeals.

On appeal, Austin vaguely claims that “the trial court erred when it denied [Austin’s] claims without addressing [Austin’s] argument that the hearing officer’s] finding was arbitrary or capricious or rendering a Rule 54(b), Ala. R. Civ. P., order.” (Austin’s brief, p. 2.) In support of his claims, Austin raises three arguments. He first argues that “the trial court in [this] case ... has erred to reversal because the trial court reviewed petitioner's] claims under the wrong standard of review.” (Austin’s brief, p. 3.) Austin next argues that “the trial court failed to render a final and appealable order because the trial court failed to dispose of [Austin’s] claim for relief that the hearing officer’s] finding of facts was arbitrary and capricious.” (Austin’s brief, p. 3.) Finally, Austin contends the trial court failed to dispose of all of Austin’s claims because, Austin says, “the Alabama Constitution does not contain an equal protection clause and that clause was removed from the constitution to carry out white supremacy within Alabama government.” (Austin’s brief, p. 3.)

In an unpublished memorandum, the majority affirms the judgment of the circuit court on the basis that the Department’s actions do not implicate Austin’s substantive-due-process rights. Although I agree that the judgment of the circuit court is due to be affirmed, I have strong reservations about the rational of the unpublished memorandum.

First, Austin does not raise a substantive-due-process claim; thus, it is unclear why this Court is addressing such a claim. In fact, it does not appear that Austin is raising any due-process issue; instead, it appears that Austin takes umbrage with the manner in which the circuit court disposed of his claims below. As the above-quoted passages from Austin’s brief indicates, Austin wholly abandons any substantive claims and, on appeal, simply argues that the circuit court failed to address all of his claims. Accordingly, any substantive-due-process discussion by this Court is misplaced.

Second, I question the authority relied upon by the majority in its substantive-due-process analysis. The majority, quoting a footnote in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and adding bracketed language, states that “inmates subject to disciplinary proceedings that do not implicate a protected interest do ‘retain, [under substantive due process and other constitutional provisions,] protection from arbitrary state action ....’” Sandin, however, does not support the majority’s conclusion that Austin has a substantive-due-process right. The Sandin footnote that is quoted and bracketed by the majority actually states as follows:

“Prisoners such as Conner, of course, retain other protection from arbitrary state action even within the expected conditions of confinement. They may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw upon internal prison grievance procedures and state judicial review where available.”

Sandin, 515 U.S. at 487 n. 11 (emphasis added). The footnote on which the majority relies does not speak to substantive due process but instead speaks to other constitutional protections prisoners retain and may assert to address arbitrary state action.

Although I disagree with the analysis used by the majority, I agree that the judgment of the circuit court is due to be affirmed. As explained above, Austin is asserting that the circuit court failed to address all of the claims raised in Austin’s petition and, further, that the circuit court’s order was insufficient. The authority on which Austin relies, however, does not demonstrate that he is entitled to relief; accordingly, I would affirm the judgment of the circuit court.

In light of the foregoing, I, like the majority, conclude that the judgment of the circuit court is due to be affirmed.


author: PER CURIAM.

text:
    Yvette ALEMAN, Petitioner, v. U.S. BANK, N.A., etc., et al., Respondents.
    No. 3D13-1258.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Hall Lamb and Hall, P.A., and Andrew C. Hall, Samuel C. Cozzo, and Matthew P. Leto, Miami, for petitioner.
    Florida Foreclosure Attorneys and William L. Noriega, for respondents.
    Before SUAREZ, LAGOA and SALTER, JJ.
   CONCESSION OF ERROR

PER CURIAM.

Pursuant to the concession of error in the only response to the petition for certio-rari, the petition is granted. The order of May 7, 2013, denying petitioner’s motion to stay pending payment of costs is quashed.


author: LAGOA, J.

text:
    AMCON BUILDERS, INC., Appellant, v. Manuel PARDO, et al., Appellees.
    No. 3D13-1169.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Wicker, Smith, O’Hara, McCoy & Ford and Shelley H. Leinicke, Fort Lauderdale, for appellant.
    Beckham & Beckham and Pamela Beck-ham, Miami, for appellee Manuel Pardo.
    Before WELLS, SUAREZ and LAGOA, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Appellee, Manuel Pardo (“Pardo”), moves to dismiss the appeal of a non-final order denying the employer’s, Amcon Builders, Inc., motion for summary judgment based on workers’ compensation immunity. For the reasons set forth below, we grant the motion to dismiss.

The trial court’s order below makes no determination on the issue of workers’ compensation immunity. Instead, the order simply denies a motion for summary judgment based on insufficient evidence. The trial court’s order, therefore, “lacked the required designation ‘that, as a matter of law, [the claimant] was not entitled to workers’ compensation immunity,’ which makes it appealable as a non-final order.” Coastal Bldg. Maint., Inc. v. Priegues, 22 So.3d 148, 148 (Fla. 3d DCA 2009). See also Fla. RApp. P. 9.130(a)(3)(C)(v); Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 821-22 (Fla.2004) (“[Njonfi-nal orders denying summary judgment on a claim of workers’ compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party.” (quoting Hastings v. Demming, 694 So.2d 718, 720 (Fla.1997)).

Because the order denying the motion for summary judgment is neither renewable under Florida Rule of Appellate Procedure 9.130 as a non-final order nor under the certiorari jurisdiction of this Court, see Fla. R.App. P. 9.030(b)(2), we grant Par-do’s motion to dismiss the appeal.

Dismissed.


author: ROTHENBERG, J.

text:
    XUE-FANG HU, Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee.
    No. 3D12-3138.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Kaba Law Group, P.L.L.C., and Moisés Kaba III, Hialeah, for appellant.
    Therese A. Savona, Assistant General Counsel to the Florida Department of Health, for appellee.
    Before WELLS, SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

Xue-Fang Hu (“the appellant”), a licensed massage therapist and the owner and director of Jing Lou Massage, Inc. (“Jing Lou Massage”), appeals the final order issued by the Board of Massage Therapy (“the Board”) revoking the appellant’s massage therapist license and imposing costs. The Department of Health proved by clear and convincing evidence that the appellant violated sections 480.46(l)(o) and 480.0465 of the Florida Statutes (2011), and Rule 64B7-33.001, subsections (1), (2), and (3) of the Florida Administrative Code. We also conclude the Board did not abuse its discretion in revoking the appellant’s license based on the aggravating factors also proven by the Department of Health. Accordingly, we affirm the final order issued by the Board.

Affirmed.


text:
    Edward L. BROWN, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections and S. Millikens, Sec., Representative, Appellee.
    No. 1D12-5356.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2013.

      Edward Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and David W. Grimes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Edward L. Brown challenges the dismissal of his fourth amended complaint for monetary damages in connection with administrative management measures imposed upon him while he was incarcerated at Union Correctional Institution. In light of Appellant’s active litigation record in this and other courts of this state, we ordered him to show cause why this Court should not summarily affirm the order on review, under Rule 9.315, Florida Rules of Appellate Procedure; why Appellant should not be sanctioned pursuant to Rule 9.410, Florida Rules of Appellate Procedure, for filing a frivolous appeal; and why such sanctions should not include a direction to the Clerk of this Court to reject any future filings submitted by Appellant unless Appellant is represented by a member of the Florida Bar. See Robenson v. McNeil, 39 So.3d 350 (Fla. 1st DCA 2010); Walker v. Ellis, 28 So.3d 91 (Fla. 1st DCA 2009). No response has been filed.

Appellant has failed to show cause why this court should not summarily affirm the order on appeal pursuant to Rule 9.315, Florida Rules of Appellate Procedure. The trial court correctly dismissed the fourth amended complaint for monetary damages because the complaint failed to state any cause of action against the individual prison officials for actions outside the scope of their employment or in connection with any rulemaking activity, as specified in the trial court’s order.

Appellant likewise has failed to show cause why he should not be sanctioned for filing a frivolous appeal under Rule 9.410, Florida Rules of Appellate Procedure. This appeal is frivolous because, like the fourth amended complaint dismissed below, it has no arguable basis in law or fact. See § 57.085(9)(a), Fla. Stat.

Finally, Appellant has failed to show cause why the sanctions for filing this frivolous appeal should not include a direction to the Clerk of this Court to reject any future documents submitted to this Court by appellant without representation of counsel in good standing with the Florida Bar. Considering Appellant’s fifteen previous appeals in this Court stemming from case numbers 1992 CF 002412 and 1993 CF 002290 (2d Jud. Cir., Leon County) and twelve appeals from civil actions or petitions for extraordinary relief, and in light of the frivolous nature of this appeal, Appellant has abused the judicial process and hindered the ability of this Court to devote its resources to the timely consideration of genuine disputes and col-orable claims by those who have not abused the system. See, Desue v. Tucker, 100 So.3d 151 (Fla. 1st DCA 2012); Pettway v. McNeil, 987 So.2d 20 (Fla.2008); Brown v. McNeil, 22 So.3d 741 (Fla. 1st DCA 2009).

The order on appeal is AFFIRMED. In addition, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Edward L. Brown, DC# 104582, unless signed by a member in good standing of the Florida Bar. If Mr. Brown violates this order, he may be subject to further appropriate sanctions. See § 944.279(1), Fla. Stat.

It is so ordered.

CLARK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Willie James FOSTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3716.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2013.
    Willie James Foster, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Kenneth L. McINTOSH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2006.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Kenneth L. McIntosh, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, - So.3d - (Fla.2012).


author: SCHWARTZ, Senior Judge.

text:
    Curtis STEVENS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-272.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.

      Before WELLS and LOGUE, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Stevens appeals from three convictions and a fifteen-year concurrent sentence for possession of cocaine, marijuana, and a controlled substance without a prescription. Because his trial motions for judgment of acquittal should have been granted, we reverse.

The only connection between Stevens and the drugs was that he had a key to, but had not entered the front door of the apartment in which the drugs were kept, in plain view. As in the cases of a next-door neighbor, a housekeeper, or a landlord who may have been given a key to certain premises and thus, has access to anything within, the fact that one has “access” to contraband or, as in this case, merely to the place where the contraband is located, is simply not a crime, or even an element of a crime, under the law of Florida. Specifically, “constructive” possession, as the state claims in this case, requires, among other things, evidence that one knows of the presence and has dominion and control over the contraband. There was no evidence of any of this at the trial. See Jennings v. State, - So.3d - (Fla. 3d DCA 2013); see also § 893.101(1)-(2), Fla. Stat. (2006); People v. Macias, 299 Ill.App.3d 480, 233 Ill.Dec. 569, 701 N.E.2d 212 (1998) (state’s proffer of evidence that defendant had keys and thus had access to the apartment where narcotics were found, with nothing more, was insufficient to prove defendant had knowledge of the narcotics and control of the area where they were found); Commonwealth v. Sespedes, 442 Mass. 95, 810 N.E.2d 790 (2004) (defendant’s possession of keys to apartment where hidden drugs were discovered was, without more, insufficient to prove constructive possession). See generally Nicholas v. State, 47 So.3d 297 (Fla. 2d DCA 2010); Loyd v. State, 677 So.2d 76 (Fla. 2d DCA 1996); Green v. State, 667 So.2d 208 (Fla. 2d DCA 1995). Obviously distinguishable are (a) cases in which defendant’s possession of a key to the area is but one of several factors which, together, create a cognizable issue of guilt, see Greene v. State, 625 So.2d 1293 (Fla. 5th DCA 1993); Commonwealth v. Delarosa, 50 Mass.App.Ct. 623, 740 N.E.2d 1014 (2000); and (b) instances in which the defendant is found inside the room in which contraband is plainly- visible. See Bradshaw v. State, 509 So.2d 1306 (Fla. 1st DCA 1987).

In the absence of evidence of guilt, the convictions and sentence below are reversed with directions to discharge the defendant.

Reversed and remanded.

      . For unexplained reasons, the only witness called by the state (or anyone) was a police officer who had entered the room which contained the drugs while duly executing a search warrant. He was able to testify only to those bare facts plus his receipt of an obviously hearsay statement, ostensibly from a fellow officer, who told him that Stevens had been arrested at "the threshold of the door” in possession of the key and $833.00 in cash. (We need not dwell upon the state’s only defense of the admission of this testimony, that the objection was not properly preserved below, because even if this is correct, which we doubt, the statement contains no evidence of the defendant's guilt.).

      . Since the appellant is incarcerated on these charges, it is ordered that he be released immediately regardless of the filing or consideration of a motion for rehearing.


text:
    AURORA LOAN SERVICES, LLC, Appellant, v. Marie RAMIREZ, et al., Appellees.
    No. 3D12-2217.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Elizabeth R. Wellborn, PA, Deerfield Beach, and Audrey Dixon and Aaron Clemens, Public Defender for appellant.
    Frank L. Hollander, Miami; Scott J. Levine, Plantation; Maurice Hinton, Fort Lauderdale, for appellees.
    Before SHEPHERD, C.J., and SALTER, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The award of $17,800 in attorney’s fees as a sanction for a discovery violation in this mortgage foreclosure case is reversed because the order does not contain the findings mandated by Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), and the record does not support a conclusion that the discovery violation was a willful and deliberate one as required by law. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990). Accordingly, the order is reversed and remanded with directions to vacate the award of attorney’s fees.

Reversed and remanded.

      . In light of this ruling, we do not reach any other issue on appeal.


author: VAN NORTWICK, J.

text:
    John B. McALPIN, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
    No. 1D12-2819.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.

      William M. Furlow of Grossman, Furlow & Bayo, LLC, Tallahassee, for Appellant.
    Linton B. Eason, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Appellee.
   VAN NORTWICK, J.

John B. McAlpin, Chief of the Sneads Police Department, appeals the Criminal Justice and Standards Training Commission’s Final Order suspending his law enforcement certification for eighteen months, to be followed by two years’ probationary reinstatement. He argues that the procedure followed by the Commission, including having the prosecutor act as staff to the Commission at the final hearing, was contrary to law; the findings of fact of the administrative law judge (ALJ) were not supported by competent substantial evidence; and the ALJ’s conclusions of law were erroneous. We conclude that the first issue requires remand for a new final hearing.

The Commission filed an administrative complaint against McAlpin based upon his alleged misconduct during the course of a criminal investigation. The matter proceeded to a formal hearing before an ALJ, who subsequently issued a recommended order making findings of fact, conclusions of law, and a proposed penalty. The Commission held a final hearing to review the recommended order and the exceptions filed thereto by both McAlpin and the Commission, as petitioner.

Three attorneys were present at the final hearing: Linton Eason, who prosecuted the case on behalf of the petitioner, the Commission; William Furlow, who represented McAlpin; and Brian Fer-nandes, who served as legal advisor to the Commission. The Commission heard argument from the parties, during which Furlow objected to the fact that the prosecutor, Eason, was also acting as staff to the Commission and that the Commission had received a staff penalty recommendation that was not provided to McAlpin. Some of the commissioners began to make motions to vote on the recommended order, at which time Eason interposed and suggested that the proper procedure was for the commissioners to vote on McAlpin’s exceptions, then the prosecution’s exceptions, and then vote to accept or reject the recommended order. Fernandes then advised the commissioners that the correct procedure was to vote on “staffs recommendation,” then vote to accept the ALJ’s findings of fact and simultaneously deny McAlpin’s exceptions, and finally vote on the ALJ’s recommended penalty. The commissioners denied Eason’s exceptions and accepted the ALJ’s findings of fact. The commissioners then unanimously voted to accept the recommended penalty.

We conclude that a remand for a new final hearing is required by Cherry Communications, Inc. v. Deason, 652 So.2d 803, 804 (Fla.1995). In Cherry, the Florida Supreme Court considered “whether the same individual who prosecutes a case on behalf of the agency may also serve to advise the agency in its deliberations as an impartial adjudicator.” Id. The Court proceeded from the notion that “an impartial decision-maker is a basic constituent of minimum due process,” and that “the decision-maker must not allow one side in the dispute to have a special advantage in influencing the decision.” Id. at 804, 805 (citation omitted). The Court noted that the agency initially appeared to follow proper procedure by having two attorneys present at the hearing, “one to advise and one to prosecute.” Id. at 805. After reviewing the record, however, the Court found that a single attorney, designated as the prosecutor, simultaneously filled the roles of agency prosecutor and legal advis- or. Id. The Court observed that, as prosecutor, the attorney questioned witnesses and argued against the respondent; while as agency advisor, the same attorney submitted memoranda to the agency panel, which contained the attorney’s recommendations and comments on the evidence. Id. The Court vacated the final orders and remanded for a new hearing, concluding that the respondent’s due process rights were violated “[bjecause the prosecution was given special access to the deliberations.” Id.

There are important similarities between Cherry Communications and the case at hand. In both cases, there were purportedly an advisory attorney and a prosecutorial attorney. As in Cherry, here the agency staff submitted a memorandum to the agency board, entitled “Case Synopsis,” which included recommendations as to disposition; this document was not provided to McAlpin. From the face of the memorandum, it is not clear whether the document was submitted by Eason, Fer-nandes, or some other staff attorney. In the memorandum, the staff recommended rejecting the ALJ’s proposed penalty and, instead, proposed a complete revocation of McAlpin’s certification. The “Staff Penalty Recommendation” section is followed by “Staff Notes,” where the Commission is referred to “Staff Counsel’s Exceptions to Recommended Penalty.” Eason filed “Petitioner’s Exceptions to Recommended Penalty.” These documents portray Ea-son in the dual role of staff counsel, in which capacity he offers advice and recommendations to the Commission, and agency prosecutor, in which capacity he advocates the case against McAlpin and pursues the maximum administrative penalty. This dual-role on Eason’s part is augmented by the fact that Eason offered the Commission procedural and legal advice at the final hearing, where he also presented argument against McAlpin, even though Fer-nandes was present in an advisory role.

Reversal is also supported on the authority of Forehand v. School Board of Gulf County, 600 So.2d 1187 (Fla. 1st DCA 1992). In Forehand, a teacher appealed a school board’s final order suspending her without pay due to alleged misconduct. Id. at 1188. We reversed and remanded for a new evidentiary hearing when the record showed that the attorney for the school board served as both prosecutor for and advisor to the school board during an evidentiary hearing on the teacher’s suspension. We found that by questioning witnesses and introducing exhibits on the school board’s behalf during the hearing, the attorney was acting as prosecutor. Id. at 1190. We further found that at other times during the hearing the attorney acted as the school board’s advisor, providing guidance on procedural issues such as how to handle objections, whether the board’s deliberations should be public or private, and how to hold the final vote. Id. We rejected the school board’s argument that the teacher was not actually prejudiced by any of the attorney’s crossover activity, citing to previous decisions which held that proof that an agency attorney acted in dual capacities during proceedings “is sufficient in itself to demonstrate the requisite prejudice” to the complaining party. Id.; see also McIntyre v. Tucker, 490 So.2d 1012, 1013 (Fla. 1st DCA 1986) (“[Ijmpartiality and zealous representation are ... incompatible in the same person at the same time.”).

Although the heightened staff penalty recommendation was not ultimately implemented in the case before us, it is clear from the record that the prosecution was given enhanced access to the decision-making body. This enhanced access undermined the Commission’s function as an unbiased, critical reviewer of the facts. See Cherry Commc’ns, 652 So.2d at 805.

We emphasize that there is nothing inherently inappropriate with consolidating investigative, prosecutorial, and adjudicative authority in a single entity or agency. See Winslow v. Dep’t of Prof'l & Occupational Regulation, 348 So.2d 352 (Fla. 1st DCA 1977). We find nothing in Cherry Communications that would suggest otherwise. Rather, our decision is predicated upon the particular facts of the instant case. All future cases of this stripe must, correspondingly, be adjudicated on their unique circumstances; there is no bright line rule that can accurately address the full spectrum of potential factual scenarios.

Therefore, we REVERSE the Final Order and REMAND for the Commission to provide McAlpin a new final hearing in accordance with this opinion.

MAKAR, J., concurs.

THOMAS, J., Dissents without Opinion.


text:
    Billy Dee WILLIAMS; Michael Lamar Daymon; Edwin Devasco Faircloth; Steve Ruben Jean-Jacques; and Dorian Shannel Johnson, natural persons, Appellants, v. Algernod Lanier WASHINGTON, and Ronnell L. Levatte, Appellees.
    No. 1D12-2171.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.

      Chad S. Roberts and Helen W. Spohrer of Spohrer & Dodd, LLC, Jacksonville, for Appellants.
    Richard C. Wolfe and Darren A. Heitner of Wolfe Law Miami, P.A., Miami, for Ap-pellees.
   PER CURIAM.

In this case, Appellants seek review of the trial court’s orders directing verdicts for Appellees and “reinstating” a previously granted, then vacated, order on summary judgment. We reverse.

Following an eight-day trial and a jury verdict in favor of Appellants on claims of negligence and negligent hiring and retention, the trial court granted summary judgment and directed verdicts for Appel-lees.

It was improper to grant summary judgment after trial as summary judgments are pretrial mechanisms, the “principle function [of which] is to avoid the time and expense of a useless trial if it clearly appears from the pleadings, affidavits, depositions and other evidence in the record that there is no genuine issue of any material fact, and the moving party is entitled to judgment as a matter of law.” Suggs v. Allen, 563 So.2d 1132, 1133 (Fla. 1st DCA 1990) (quoting Fish Carburetor Corp. v. Great Am. Ins. Co., 125 So.2d 889, 891 (Fla. 1st DCA 1961)); see also Ameriseal of N.E. Fla., Inc. v. Leiffer, 738 So.2d 993, 994 (Fla. 5th DCA 1999). “Once the trial commences, the defendant can test the sufficiency of the plaintiffs evidence by a motion for directed verdict[.]” Ameriseal, 738 So.2d at 994. Thus, an order purporting to “reinstate” a pretrial motion for summary judgment after, and contrary to, the jury’s verdict is erroneous.

Even if we treated the order “reinstating” summary judgment after a trial and verdict as an order directing verdict, we would still be compelled to reverse.

We review a trial court’s orders directing verdicts de novo. See Borda v. E. Coast Entm’t, Inc., 950 So.2d 488, 490 (Fla. 4th DCA 2007).

Here, drawing all inferences from the evidence in a light most favorable to Appellants, we find the evidence supported the jury’s verdict. See Brady v. SCI Funeral Serv., of Fla., Inc., 948 So.2d 976, 978 (Fla. 1st DCA 2007) (“A directed verdict will be affirmed only when no proper view of the evidence could warrant a verdict in favor of the nonmoving party.”). Therefore, it was error for the trial court to grant directed verdicts for Appellees. Accordingly, we REVERSE and REMAND for the trial court to reinstate the jury’s verdicts in their entirety.

REVERSED and REMANDED.

WOLF and OSTERHAUS, JJ„ and SHEFFIELD, FRANK E., Associate Judge, concur.


author: EMAS, J.

text:
    JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellant, v. Svitlana BIGLEY, etc., et al., Appellees.
    No. 3D12-995.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2013.
    Wargo & French, Miami, and Susan Capote, Coconut Grove, for appellant.
    Toyne & Mayo and Michael Schimmel, Miami, and Alberto J. Alonso, for appel-lees.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Appellant, JPMorgan Chase Bank (“Chase”), appeals the trial court’s directed verdict in favor of Appellee, Jade Winds Association (“Jade Winds”), contending that Jade Winds lacked standing to enforce the mortgage’s terms against Chase because Chase was neither a party to, nor a third party beneficiary of, the mortgage.

Chase further contends on appeal that the trial court improperly denied its Motion for Reconsideration as untimely because the only evidence presented to contest timely service was legally insufficient.

We do not reach the merits of Chase’s first claim and, for the reasons that follow, we reverse and remand the trial court’s order denying Chase’s motion for reconsideration, with directions to conduct an evi-dentiary hearing. In doing so, we answer the following question, which appears to be one of first impression:

In determining whether a motion was timely served by mail, can a private postage-meter mark constitute competent substantial evidence to rebut the prima facie proof of mailing evidenced by the date contained in the certificate of service?

Chase filed suit to foreclose on a mortgage secured by a condominium unit then owned by Appellee Svitlana Bigley (“Big-ley”) on October 1, 2009. Chase also named Jade Winds, the entity charged with maintaining the common elements appurtenant to the unit, as a defendant, alleging Chase’s lien was superior to Jade Winds’ interest in the property.

On March 30, 2010, Chase filed a Motion for Summary Final Judgment of Foreclosure and to Re-Establish a Lost Instrument. While Chase’s action was pending, Jade Winds obtained a final judgment in a separate action and took title to the unit by foreclosing its lien for unpaid assessments. The clerk issued a Certificate of Title to Jade Winds on November 9, 2010.

On October 27, 2011, the court held a non-jury trial on Chase’s foreclosure action. Jade Winds argued that Chase failed to prove it complied with all conditions precedent under the mortgage, specifically contending Chase failed to introduce the notice of acceleration into evidence. The trial court granted a directed verdict in favor of Jade Winds. Chase was thus precluded from foreclosing on the property-

Following the January 25, 2012 entry of Final Judgment in favor of Jade Winds, Chase filed a Motion for Reconsideration. The certificate of service contained in the motion indicated it was served via First Class U.S. Mail on February 6, 2012, but the Pitney-Bowes private postage-meter stamp placed on the envelope by the attorney for Chase indicates that the envelope was stamped on February 7, 2012. The motion was electronically filed on February 6, 2012, and a hard copy was filed with the clerk on February 13, 2012.

At the subsequent hearing on Chase’s motion for reconsideration, Jade Winds argued that Chase mailed the motion on February 7, 2012, and it was therefore untimely, as it was served one day beyond the ten-day deadline for serving such a motion. Chase argued that, because the certificate of service indicated the motion was mailed on February 6, the motion was presumptively timely, and the February 7 private-meter postage mark was not legally sufficient to rebut this prima facie proof. The court orally denied the motion as untimely and rendered its order of denial on March 14, 2012. Chase filed its notice of appeal on April IB, 2012.

On appeal, Jade Winds contends that this Court does not have jurisdiction over this appeal because Chase’s untimely motion for reconsideration did not suspend rendition of the final judgment nor toll the time for filing the notice of appeal. See Fla. R.App. P. 9.020(i). If in fact the motion for reconsideration was untimely, the notice of appeal (which was filed more than thirty days after rendition of the final judgment) is likewise untimely and constitutes a fatal jurisdictional defect. See Dominguez v. Barakat, 609 So.2d 664 (Fla. 3d DCA 1992). Because this issue involves the construction and interpretation of the rules of civil procedure, our standard of review is de novo. Sata Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006).

Motions for reconsideration are governed by Florida Rule of Civil Procedure 1.530(b), which provides in pertinent part:

A motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.

The Final Judgment was entered on January 25, 2012. The last day of the ten-day period was Saturday, February 4, 2012. However, when the last day of the ten-day period falls on a Saturday or Sunday, rule 1.090(a) extends the time period to the following weekday that is not a legal holiday. Accordingly, the time for serving the motion expired on February 6, 2012.

Pursuant to then-existing Florida Rule of Civil Procedure 1.080(b), “[sjerviee by mail is deemed complete upon mailing.” Further, then-existing rule 1.080(f) provides that the certificate of service date “is taken as prima facie proof of such service in compliance with this rule.” This is true even though the mailed copy of the motion may not have been received by either the clerk or the opposing party before the expiration of the ten-day time limit. Nesslein v. Nesslein, 672 So.2d 582 (Fla. 3d DCA 1996); Mr. Martinez of Miami, Inc. v. Ponce De Leon Fed. Sav. and Loan Ass’n, 558 So.2d 153, 154 (Fla. 3d DCA 1990).

Moreover, the date set forth by counsel in the certificate of service “creates a rebuttable presumption which may be overcome by competent evidence to the contrary.” Migliore v. Migliore, 717 So.2d 1077, 1079 (Fla. 4th DCA 1998). This court has previously held that “[a] postal cancellation date is not sufficient to rebut the prima facie proof of compliance -with Rule 1.080(f).” Nesslein, 672 So.2d at 583. See also Mr. Martinez of Miami, Inc., 558 So.2d at 154 (holding that, in the absence of an evidentiary hearing, a postal cancellation date two days later than the certificate of service date is not sufficient to rebut the prima facie proof of the certificate of service).

The certificate of service signed by Chase’s counsel indicates it was served by U.S. mail on February 6, 2012, and this certificate of service date therefore constitutes prima facie proof that service by-mailing was effectuated on February 6. However, the envelope in which the motion was mailed to counsel for Jade Winds contains a private postage-meter mark, with a date showing that the postage was placed on the envelope, by the postage-meter machine in the office of Chase’s counsel, on February 7, 2012.

Chase argues that the private postage-meter stamp is the equivalent of a U.S. Postal Service cancellation mark for purposes of determining date of mailing and is therefore legally insufficient to rebut the prima facie proof of the February 6 certifí-cate of service date. Jade Winds counters that this private postage-meter mark is competent substantial evidence to rebut the prima facie proof of the certifícate of service date, and in fact establishes that the mailing did not occur until (at the earliest) February 7, a day after the expiration of the ten-day period.

Thus the question presented by this case is whether the Pitney-Bowes private postage-meter mark placed on the envelope is different in kind from a United States Postal Service postage cancellation mark, such that the former could be relied upon by the trial court as competent substantial evidence to rebut the prima facie proof of the certificate of service as the date of mailing. This appears to be an issue of first impression in Florida.

Reliance on the certificate of service date as the presumptive mailing date represents a straightforward method of determining service in the absence of competent evidence to the contrary. There is an implicit acknowledgment that, while the certificate of service date may not in fact be the actual date the motion was placed in the hands of the U.S. Postal Service, it establishes the earliest date of mailing, and represents a fair compromise by creat-mg an easily ascertainable date which the parties and the trial court can rely upon, generally avoiding the need for a separate hearing to make factual determinations of the actual date when the motion was placed into the U.S. mail.

As a corollary, we have recognized that a U.S. Postal Service postage cancellation date on the envelope is insufficient to rebut the prima facie proof of date of mailing as set forth in the certificate of service. See Nesslein, 672 So.2d at 583; Mr. Martinez of Miami, Inc., 558 So.2d at 154. The obvious rationale is that after the motion leaves counsel’s office, he or she no longer controls its movement or eventual delivery. Once the envelope is placed into the stream of postal commerce, it is under the control of the U.S. Postal Service, and counsel has no ability to place the cancellation date on the envelope or to effectuate delivery. Thus the most reliable date for establishing when a motion or pleading is “mailed” for purposes of determining “service” is the date when it leaves the hands of counsel and is placed into the hands of the U.S. Postal Service. This will generally be determined by the date indicated by counsel on the certificate of service and serves as prima facie proof of the date of mailing (and therefore “service”) under the rules. How long it takes thereafter for the U.S. Postal Service to place its cancellation mark on the envelope, or to deliver the envelope to the addressee, is deemed legally insufficient to rebut the prima facie proof created by the certificate of service date.

However, the date placed upon the envelope by a private postage meter is different in kind from a U.S. Postal Service postage cancellation mark. The private postage meter is in counsel’s office and is controlled by counsel. When the envelope is stamped by the private postage meter, it places both the postage and a date on the envelope. At this point, the envelope and its contents are still in the custody and control of counsel. The envelope has not yet been placed into the stream of postal commerce with the U.S. Postal Service. In this regard, the private postage meter mark is distinguishable from a U.S. Postal Service cancellation mark. In fact, the private postage meter mark (at least in theory) provides a more accurate date of mailing than does the date on the certificate of service. Common sense dictates that the envelope is stamped and dated by counsel’s private postage meter after the certificate of service has been dated and signed. The private postage-meter stamp would generally represent the last act before the envelope and its contents are placed into the hands of the U.S. Postal Service. Applied to this case, the private postage-meter stamp would serve as evidence that the earliest date the motion could have been mailed was February 7, rather than February 6.

Chase cites to several cases from other jurisdictions in support of its argument that the private postage-meter mark is the equivalent of the U.S. Postal Service cancellation mark and therefore, like the cancellation mark, is insufficient to rebut the proof of mailing as evidenced by the certificate of service. Chase misreads those cases; when read in context, they do not support the proposition advanced by Chase. Those cases construed statutory or regulatory definitions of the term “postmark” and determined that a private postage-meter mark is a “postmark” for purposes of determining the date on which a document is mailed. Those cases do not address whether a private postage-meter mark may be used as competent evidence to rebut the presumptive mailing date as indicated on a certificate of service.

We therefore hold that a private postage-meter mark, which places the postage and date stamp upon the envelope prior to its placement in the hands of the U.S. Postal Service for mailing, constitutes competent substantial evidence that can rebut the prima facie proof created by the date contained in a certificate of service.

Since this issue is one of first impression, and given the non-evidentiary nature of the hearing below, we reverse the trial court’s order and remand this cause to the trial court in light of our holding and to afford the parties an opportunity, if appropriate, to present evidence and for the trial court to determine the date on which the motion was served.

Should the trial court determine that the motion was timely filed, it should then consider the merits of Chase’s motion for reconsideration.

Reversed and remanded with directions.

      . The motion for reconsideration was heard on a five-minute motion calendar. No evi-dentiary hearing was held and no evidence was introduced. Nevertheless, Chase does not contest that the private postage-meter mark on the envelope was dated February 7, 2012.

      . Rule 1.080 was amended effective September 1, 2012, and now provides that ‘‘[e]very pleading subsequent to the initial pleading and every other document filed in the action must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516.” Rule 2.516 provides additional methods for service, but incorporates the provisions that ‘‘[sjerviee by mail is complete upon mailing” and that ‘‘the certificate [of service] is taken as prima facie proof of such service in compliance with this rule.” See rule 2.516(b)(2) and (g).

      . The attorneys representing Chase in this appeal did not represent Chase in the trial court.

      . We note in passing that Florida Rule of Civil Procedure 1.530(b) provides that the date of service (rather than the date of filing) is the operative act in determining the timeliness of a motion filed pursuant to that rule. An amendment to rule 1.530(b) to provide that the filing of the motion within ten days constitutes the operative act (and service within some reasonable time of filing) would render moot the issue presented here. See Fed. R.Civ.P. 59(b) (amended in 1995 to provide: “A motion for a new trial must be filed no later than 28 days after the entry of judgment.”) (emphasis added). The Advisory Committee Notes to the 1995 amendment of Federal Rule of Civil Procedure 59(b) observed:
      The only change, other than stylistic, intended by this revision is to add explicit time limits for filing motions for a new trial, motions to alter or amend a judgment, and affidavits opposing a new trial motion. Previously, there was an inconsistency in the wording of Rules 50, 52, and 59 with respect to whether certain post-judgment motions had to be filed, or merely served, during the prescribed period. This inconsistency caused special problems when motions for a new trial were joined with other post-judgment motions. These motions affect the finality of the judgment, a matter often of importance to third persons as well as the parties and the court. The Committee believes that each of these rules should be revised to require filing before end of the 10-day period. Filing is an event that can be determined with certainty from court records.

        See also Migliore, 717 So.2d at 1080 (acknowledging the confusion engendered by the use of service as the operative act, and noting the 1995 amendments to Federal Rule of Civil Procedure 59).
      In the interest of uniformity, if rule 1.530(b) were amended to make date of filing the operative act, the same change should be considered to rule 1.530(c) (time for serving affidavits in opposition to motion for new trial), rule 1.530(g) (time for motion to alter or amend judgment) and rule 1.480(b) (time for motion to set aside verdict or for judgment in accordance with motion for directed verdict).

      . There is no evidence in the record below regarding the use and maintenance of the private postal meter, including the method by which the date on the postal meter was set or changed. For example, if the postal meter date was routinely changed each day at 5 p.m. (to the following business day) and the envelope in this case was run through the postage meter on February 6, but after 5 p.m., the envelope would be stamped February 7. Because the trial court did not hold an evi-dentiary hearing, and because this issue appears to be one of first impression in Florida, Chase did not have the opportunity to present evidence regarding the use and maintenance of the private postage meter, or to otherwise rebut the assertion that the motion was served by mail on February 7 rather than February 6. For this reason, we remand this cause to the trial court to conduct an evidentiary hearing to determine the date of service of the motion for reconsideration.

      . See Lozier Corp. v. Douglas Cty. Bd. of Equalization, 285 Neb. 705, 829 N.W.2d 652 (2013); Chevron U.S.A., Inc. v. Dept. of Revenue, State, 154 P.3d 331 (Wyo.2007); Haynes v. Hechler, 182 W.Va. 806, 392 S.E.2d 697 (1990); Bowman v. Administrator, Ohio Bureau of Employment Svcs., 30 Ohio St.3d 87, 507 N.E.2d 342 (1987). In fact, the conclusions reached in these decisions support our analysis. In Bowman, for example, the Ohio Supreme Court concluded that a private meter postmark is “presumptively valid and accurate” and “constitutes evidence of the date of deposit of the item in the mail.” Id. at 344-45. In Lozier, the Nebraska Supreme Court determined that the nature and extent of regulations governing use of private postage meters "are sufficient to qualify, a postage meter stamp as satisfactory evidence of the date of mailing.” Lozier, 829 N.W.2d at 660.

      . We note there are two cases in Florida which, although not addressing the precise issue in this case, discuss in general terms the equivalence of a U.S. Postal Service postmark and a private meter mark. However, each of these cases involves administrative regulations that expressly require U.S. Postal Service postmarks as proof of mailing. See Arza v. Florida Elections Commission, 907 So.2d 604, 605 (Fla. 3d DCA 2005) (noting that Rule 2B-1.0052 of the Florida Administrative Code requires a U.S. Postal Service postmark as proof of mailing and expressly provides that a "metered postmark does not constitute a satisfactory postmark or proof of mailing”); Machado v. Florida Unemployment Appeals Comm’n, 48 So.3d 1004 (Fla. 1st DCA 2010) (acknowledging that Rule 60BB-6.003(3) of the Florida Administrative Code provides that an unemployment appeal which is filed by mail "shall be considered to have been filed when postmarked by the United States Postal Service” and finding that an undated private postage meter mark was plainly insufficient to establish the date of mailing).

      .Although the trial court did deny the motion as untimely, it made no factual findings at the hearing to support this determination. Additionally, there was an ambiguous statement made during the hearing by Chase’s counsel which could have been construed by the trial court (and which was argued by Jade Winds on appeal) as an admission that the motion was not mailed until February 7.


author: FERNANDEZ, J.

text:
    METROPCS WIRELESS, INC., Petitioner, v. STATE of Florida and Rafael Andres, Respondents.
    No. 3D13-1634.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2013.
    Perkins Coie, LLP, Washington, DC and Michael A Sussman; Greenspoon Marder, P.A., Fort Lauderdale, and John H. Pelzer and Beth-Ann E. Krimsky, for petitioner.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, and Joel Rosenblatt, Assistant State Attorney, for respondent State of Florida; and Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender for respondent, Rafael Andres.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

MetroPCS Wireless, Inc. seeks a writ of certiorari to quash the trial court’s order denying its Motion' to Quash Deposition Subpoena/Motion for a Protective Order and requiring the deposition of an out-of-county resident to be held in Miami-Dade County. Because the order under review departs from the essential requirements of the law and results in material injury, we grant the petition, quash the order, and remand the cause to the trial court for further proceedings.

MetroPCS is a private communications provider. Its employee, Ajapol Anu-sornpanich, is MetroPCS’ records custodian and a State witness who resides in Polk County, Florida. He is also a non-party in the underlying criminal case. The trial court ordered a second deposition of this witness in Miami-Dade County where the trial is pending. MetroPCS objected, and the trial court overruled the objection.

We have stated that a petition for certiorari is the appropriate method to review a discovery order when the order departs from the essential requirements of the law, causes material injury throughout the remainder of the proceedings below, and effectively leaves no adequate remedy on appeal. Segarra v. Segarra, 932 So.2d 1159, 1160 (Fla. 3d DCA 2006). Certiorari is available to review trial court orders that require depositions take place at an erroneous location. Triple Fish America, Inc. v. Triple Fish Int’l, L.C., 839 So.2d 913, 914 n. 1 (Fla. 5th DCA 2003). We agree with the analysis advanced by the State in its “Response to the Proposed Relocation of Deposition of Ajapol Anu-sornpanich to Miami” filed in the trial court, and conclude that the trial court’s order denying MetroPCS’ motion for a protective order departed from the essential requirements of law and resulted in material injury for which there is no adequate remedy on appeal. A plain reading of rule 3.220(h), Florida Rules of Criminal Procedure, which is the controlling provision that governs discovery depositions in criminal cases, required the trial court to order the deposition of Anusornpanich to be held in Polk County, the county of the witness’ residence.

Respondent/Defendant Rafael Andres, as the State suggests, is mistaken that the plain meaning of rule 3.220(h)(3) unambiguously gives the trial court the discretion to designate the location of an out-of-county witness deposition anywhere in Florida. The trial court acknowledged that rule 3.220(h)(3) could be interpreted in two different ways. The plain meaning of the rule, however, cannot be given effect if it leads to an unreasonable or ridiculous result. See City of Miami Beach v. Galbut, 626 So.2d 192, 193 (Fla.1993) (a statute’s plain and ordinary meaning must be given effect unless it leads to an unreasonable or ridiculous result).

This Court noted in Spence-Jones v. Dunn, 118 So.3d 261, n. 2 (Fla. 3d DCA 2013), citing Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1287 (Fla.2000), that a statutory provision will not be construed in such a way so as to render meaningless or absurd any other statutory provision. The trial court’s interpretation of rule 3.220(h)(3) leads to an unreasonable result that renders meaningless the significant distinction between in-county and out-of-county witnesses set forth in the rule.

The purpose of the discovery rules is “to facilitate a truthful fact-finding process.” Kilpatrick v. State, 376 So.2d 386, 388 (Fla.1979). Related statutory provisions thus must be read together to achieve a consistent whole and, where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. See Village of Doral Place Ass'n, Inc. v. RU4 Real, Inc., 22 So.3d 627, 631 (Fla. 3d DCA 2009). Rule 3.220(h)(3) specifically distinguishes between those witnesses that reside in the county and state in which the trial is pending, those that reside outside that county but still in the state in which the trial is pending, and those that reside outside the state in which the trial is pending. More specifically, rule 3.220(h)(3), titled “Location of Deposition,” contains two sentences. The first one addresses in-county witnesses:

Depositions of witnesses residing in the county in which the trial is to take place shall be taken in the building in which the trial shall be held, such other location as is agreed on by the parties, or a location designated by the court.

(Emphasis added). The second sentence addresses witnesses who reside outside the county or the State:

Depositions of witnesses residing outside the county in which the trial is to take place shall be taken in a court reporter’s office in the county or state in which the witnesses resides, such other location as is agreed on by the parties, or a location designated by the court.

(Emphasis added).

When both statutory provisions are read together, the trial court erroneously compelled the witness to travel outside the witness’ county of residence for the deposition. Although the second sentence in the rule provides that a court may designate the location of a deposition for an out-of-county witness, the rule demonstrates that the “location designated by the court” is to be interpreted to mean a location within the county in which the witness resides or, if the witness resides outside the state, a location within the state in which the witness resides. This interpretation, contrary to the interpretation the trial court adopted, is consistent with the rule of ejus-dem genenas, which provides that “when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type as those listed.” See Graham v. Haridopolos, 108 So.3d 597, 605 (Fla.2013).

Furthermore, a reading of the second sentence of rule 3.220(h)(3), to the exclusion of the first sentence of the rule, renders the existing distinction between in-county and out-of-county witnesses in both sentences essentially meaningless. Such an interpretation- would also be in contravention of the uniform law for the attendance of witnesses from outside the state. See § 942.03, Fla. Stat. (2013).

Additionally, rule 3.220(h)(1) requires the scheduling of a witness’ deposition, including its location, to be coordinated in order to accommodate the witness to be deposed. Thus, consideration of the witness’ convenience is required. It cannot be said that this requirement is satisfied by compelling Anusornpanich, a non-party witness, to attend a second deposition outside of his county of residence.

We thus conclude that, when all of the pertinent related provisions of rule 3.220(h) are considered, as well as the case law that interprets that rule, the trial court’s order departed from the essential requirements of the law when the court ordered the deposition of a witness take place outside the county of the witness’ residence, resulting in material injury for which there is no adequate remedy on appeal. Therefore, we quash the trial court’s order denying MetroPCS’ motion for protective order, and remand the cause to the trial court for further proceedings.

Petition granted, order quashed, and cause remanded.

      . Although denominated a respondent in this appeal, the State's position is aligned with that of MetroPCS, as it was at the hearing before the trial court on the motion for protective order.

      . It is undisputed that MetroPCS, as a non-party in the underlying criminal case, has no adequate remedy by way of appeal. See Briggs v. Salcines, 392 So.2d 263, 266 (Fla. 2d DCA 1980) (observing that a non-party has no adequate remedy for harm caused by an erroneous discovery order on appeal from a final judgment because he or she is not a party to the proceeding in which the final judgment will be entered).


text:
    K.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-299.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2013.
    Carlos J. Martinez, Public Defender, and Billie Jean Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assitant Attorney General, and Michelle Burgess, Certified Legal Intern, for appellee.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Chestnut v. State, 538 So.2d 820 (Fla.1989).


text:
    Vincent PHILPOT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2462.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2013.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea and Timothy Thomas, Assistant Attorney Generals, for appellee.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the denial of Vincent Philpot’s Florida Rule of Criminal Procedure 3.850 motion, although for grounds different than those stated by the trial court. The motion should have been summarily denied as untimely or successive. See Fla. R.Crim. P. 3.850(b), (f); see also Philpot v. State, 668 So.2d 243 (Fla. 3d DCA 1996). Even if an evidentiary hearing was appropriate, the record reflects no deficient performance of counsel or any resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Affirmed.


text:
    Timothy BRADHAM, Husband, Appellant, v. Susan Elaine BRADHAM, Wife, Appellee.
    No. 1D12-4380.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2013.

      Natalie Tuttle, Waynesville, Georgia, for Appellant.
    Alexa K. Alvarez of Alvarez & Wallace, P.A., Fernandina Beach, for Appellee.
   PER CURIAM.

Timothy Bradham, the former husband, appeals the trial court’s order modifying his alimony obligation and requiring him to pay attorney’s fees and costs of appellee, Susan E. Bradham, the former wife. We find no abuse of discretion in the modification of alimony. Galligar v. Galligar, 77 So.3d 808, 811 (Fla. 1st DCA 2011). Because the trial court made no findings to support the fee and cost award, we reverse the order granting fees and costs and remand for further proceedings.

We apply the abuse of discretion standard to review a lower court’s award of attorney’s fees. Shelly L. Hall, M.D., P.A. v. White, 97 So.3d 907, 909 (Fla. 1st DCA 2012). Florida law provides:

[ A] court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals ... An application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter.

§ 61.16(1), Fla. Stat. (2012). Furthermore, in Norman v. Norman, 939 So.2d 240, 241-42 (Fla. 1st DCA 2006), this court held that a trial court reversibly errs when it awards attorney’s fees without making the requisite findings as to the proper amount, as required by Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). Even where the record supports awarding fees and costs, failure to include the necessary findings constitutes reversible error. Id. at 242; see also Ard v. Ard, 765 So.2d 106, 107 (Fla. 1st DCA 2000) (remand of attorney’s fee award required where the trial court made no findings as to the attorney’s hours expended, hourly rate, or reasonableness of the fee).

Here, the trial court’s order found that the former wife had a need for contribution to her attorney’s fees and costs and the former husband had an ability to pay. This finding is supported by the parties’ respective financial affidavits, which show the former husband with a monthly surplus, while the former wife carries a monthly deficit, in addition to being the primary residential parent for the two minor children. The former wife submitted an affidavit from her attorney’s law firm attesting to the fees and costs incurred by appellee in the case, as well as detailed records of the hourly rate and hours expended for her case. However, there is no indication that the court considered the Rowe factors in reaching its decision to award fees and costs. Thus, the order requiring the former husband to contribute $3,000 towards the former wife’s attorney’s fees and costs must be reversed and remanded for the court to properly evaluate the issue.

Accordingly, we REVERSE the portion of the trial court’s order on fees and costs and REMAND for further proceedings consistent with this opinion; the remainder of the order we AFFIRM.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Timothy Emanuel GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4996.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2013.

      Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant presents two issues on appeal. First, he argues that the prosecutor’s improper comments in closing argument deprived him of a fair trial. We find no merit in this issue and affirm. Second, he argues that his convictions for burglary with an assault or battery while armed with a firearm and aggravated assault with a firearm violated double jeopardy. We agree.

The appellant was charged with burglary of a dwelling with an assault or battery upon Y.J. while armed with a firearm (Count I), aggravated assault upon Y.J. with a firearm (Count II), burglary of a dwelling with an assault or battery upon K.J. while armed with a firearm (Count III), domestic battery by strangulation of K.J. (Count IV), aggravated assault upon K.J. with a firearm (Count V), and possession of a firearm by a convicted felon (Count VI).

A jury trial was held. The evidence at trial showed the following. In the afternoon of May 8, 2011, the appellant entered Y.J.’s apartment without permission, searching for his former girlfriend, K.J. Y.J. informed the appellant that K.J. was not there. The appellant waved a firearm, which frightened Y.J. Y.J. informed the appellant that she would call the police if he put a gun in her face again. The appellant left, vowing to return.

Twenty minutes later, when Y.J. and K.J. were both at the apartment, the appellant returned. He pointed a firearm at Y.J. and stated that he would shoot if K.J. did not come out. K.J. was hiding in a closet where the appellant located her, pulled her out, and began choking her while holding a firearm. Y.J. went next door and called the police. She could hear K.J. yelling for help and was fearful that the appellant would kill K.J. The police responded to the scene, and the appellant came out of the bedroom. A loaded firearm was recovered from the bedroom.

The jury returned a verdict finding the appellant guilty as charged in Counts I, II, III, and V. In Count IV, the jury found the appellant guilty of the lesser-included offense of battery. The appellant was sentenced to life in prison as a prison releasee reoffender on Counts I and III, concurrent sentences of five years in prison on Counts II and V, and one year in jail on Count IV.

The appellant’s claim of double jeopardy is cognizable for the first time on appeal and is reviewed de novo. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006). This Court has previously recognized that, because all of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with an assault while armed with a firearm, convictions for both the burglary and the aggravated assault violate the prohibition against double jeopardy. See White v. State, 753 So.2d 668, 669 (Fla. 1st DCA 2000); Estremera v. State, 107 So.3d 511 (Fla. 5th DCA 2013).

The State properly concedes error regarding the dual convictions for burglary with an assault while armed with a firearm and aggravated assault upon K.J. (Counts III and V). However, with regard to the allegations involving Y.J. (Counts I and II), the State argues that the appellant committed more than one criminal act in more than one criminal episode; therefore, no double jeopardy occurred. Given the record before us, we cannot agree.

Here, the State presented the jury with facts under which they could have found two distinct assaults on Y.J. The State contends that the jury found that the burglary with an assault was based on the first entry and the aggravated assault conviction was based on the second entry. However, testimony was elicited that the appellant threatened Y.J. with a firearm on both occasions, frightening her both times. Thus, it is plausible that Counts I and II both related to the initial entry. The jury could have concluded that either two or one assaults happened based upon the facts presented and argued. Furthermore, it is impossible to tell from the verdict form whether the jury found that two distinct assaults occurred, constituting two separate criminal acts. Given the record before us, the verdict should be read in the manner most favorable to the appellant. See Sanders v. State, 74 So.3d 561 (Fla. 5th DCA 2011) (holding that, where double jeopardy was implicated and it was impossible to tell from the verdict form if the jury found two distinct acts, the verdict must be read in a manner that would give the benefit of the doubt to the defendant).

We find that the dual convictions for burglary with an assault while armed with a firearm and aggravated assault with a firearm upon both Y.J. and K.J. violate double jeopardy. Where double jeopardy is implicated, the general rule is to reverse the lesser offense that is subsumed by the other in its totality. See Pizzo, 945 So.2d at 1206. Thus, we reverse with instructions to vacate the appellant’s convictions for aggravated assault with a firearm in Counts II and V.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, ROBERTS, and MAKAR, JJ., concur.

      . Count VI was severed for trial.


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    William H. CORNING, Appellant, v. WELLS FARGO BANK, NA, Appellee.
    No. 1D12-4617.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.

      William H. Corning, Pro se, for Appellant. »
    Michael K. Winston, Dean Morande and Donna L. Eng of Carlton Fields, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

Appellant William H. Corning appeals for the second time from orders of the trial court related to a foreclosure judgment and sale of property.

By way of background, on February 3, 2011, the trial court entered a Final Judgment of Mortgage Foreclosure on Appellant’s property and noticed a foreclosure sale for March 22, 2011. The property was then sold. On April 1, 2011, nine days after of the Clerk of Court certified the sale, Appellant appealed to this Court the foreclosure judgment and sale, suggesting that he lacked adequate notice. This Court dismissed his appeal on jurisdictional grounds (the appeal was filed more than thirty days after entry of the foreclosure judgment), but “without prejudice to the appellant’s right to seek relief in the circuit court from the foreclosure sale and underlying judgment.” Corning v. Wells Fargo Bank, 73 So.3d 363 (Fla. 1st DCA 2011). This Court’s order cited cases suggesting that Appellant could seek relief by filing a motion for relief from judgment in the trial court pursuant to Florida Rule of Civil Procedure 1.540. Id.

After returning to the trial court, however, Appellant did not move for relief from the foreclosure judgment and sale. Instead, over a period of months, the purchaser of the foreclosed property moved to gain possession. Appellant filed nothing for months, but then on May 29, 2012, he filed motions seeking to vacate both an Order Directing the Clerk to Issue a Writ of Possession and the Certificate of Title issued after sale. Appellant’s motions asserted again his objection to the sale of the property and that he lacked adequate notice because only his no-longer-retained attorney had been served (the docket does not show that a notice of withdrawal or substitution of counsel was ever filed). Appellant’s motions were not sworn, verified, or supported by affidavits or other competent evidence. After a hearing, the court denied the motions.

On appeal, Appellant now renews his challenge to the sale, claims insufficient notice, argues that the property sale price was grossly inadequate, and claims that he should have received an evidentiary hearing. However, he cites to nothing in the record to support his arguments. In fact, his brief does not cite the record even once. And further impeding his cause, Appellant did not include a transcript of the trial court’s hearing in the record from which he might demonstrate error. In sum, Appellant can point to no competent evidence tending to show that the trial court committed reversible error. Thus, we must affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

VAN NORTWICK, CLARK, and OSTERHAUS, JJ., concur.


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    James P. SIRDEVAN, Petitioner, v. Jeffrey B. STRAND and Nicola A. Sirdevan, Respondents.
    No. 1D13-1649.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Lawrence C. Datz of Datz & Datz, P.A., Jacksonville, for Petitioner.
    Seth Schwartz and Caleb D. Rowland of The Schwartz Law Group, P.A., Jacksonville, for Jeffrey B. Strand.
    Jason K. Hutchinson and Scott R. Elle-rin of Ellerin/Hutehinson, Jacksonville, for Nicola A. Sirdevan.
   PER CURIAM.

James P. Sirdevan, the legal father of the child at issue in this proceeding, petitions for a writ of certiorari seeking review of the trial court’s non-final order denying his motion for summary judgment wherein he challenged Respondent Jeffrey B. Strand’s standing to file a paternity petition. We GRANT the petition and QUASH the trial court’s order. See Slowinski v. Sweeney, 64 So.3d 128, 128-29 (Fla. 1st DCA 2011) (holding that a child born to an intact marriage cannot be the subject of a paternity proceeding brought by a biological father and determining that it was fundamental error for the trial court to grant relief pursuant to a nonexistent cause of action).

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


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    John C. MATHIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2016.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.

      John C. Mathis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the court’s February 15, 2013, order denying his third motion for post-conviction relief entered in Nassau County case number 10-500-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


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    David L. HALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2464.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    David L. Hall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted belated appeals of the court’s February 14, 2013, orders denying his motion for post-conviction relief and to correct illegal sentence, entered in Duval County case number 2008-13305 CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as notices of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


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    Raymond C. MILLER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4038.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Raymond C. Miller, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, WETHERELL, and RAY, JJ., concur.