text:
    Bertran WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2138.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Bertrán Wilson, Milton, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

On February 21, 2012, Bertrán Wilson entered an open guilty plea to a felony and two misdemeanors and was sentenced to twenty years for count I and to time served for the other two counts. On March 9, 2012, through his assistant public defender, he filed a motion to withdraw plea, to withdraw from representation, and to appoint conflict-free counsel. The trial court granted counsel’s motion to withdraw and later appointed the Office of Criminal Conflict and Civil Regional Counsel, Appellate Division, to represent Wilson. That office promptly filed some papers (including a demand for a jury trial) but does not appear to have taken any action on Wilson’s motion to withdraw plea.

In September 2012, Wilson filed the instant pro se rule 3.850 motion. The state filed a response addressing the merits of the motion, and the trial court summarily denied it, adopting and incorporating the state’s response. Both the state’s response and the trial court’s order reflect that Wilson had filed what appears to be a timely rule 3.170(Z) motion to withdraw plea, which remains pending.

A timely rule 3.170(£) motion to withdraw plea after sentencing defers rendition of the final order. Fla. R. App. P. 9.020(i)(l). Therefore, Wilson’s conviction and sentence have not yet become final, the time for filing a rule 3.850 motion has not yet begun to run, and the rule 3.850 motion should have been dismissed as premature. See Landell v. State, 88 So.3d 413, 414-15 (Fla. 4th DCA 2012); Haber v. State, 961 So.2d 1098 (Fla. 2d DCA 2007). Accordingly, we reverse the order denying Wilson’s premature rule 3.850 motion and remand for the trial court to dismiss it and to rule on his timely rule 3.170(£) motion to withdraw plea.

Reversed and Remanded.

TAYLOR, LEVINE and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael CARAZO and Ruth Carazo, Appellants, v. SAXON MORTGAGE SERVICES INC., Appellee.
    Nos. 4D13-743, 4D13-745.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Michael and Ruth Carazo, Palm Beach Gardens, pro se.
    Jeremy W. Harris of Morris, Laing, Evans, Brock & Kennedy, CTD., Wichita, KS and Khari E. Taustin, Wellington, for ap-pellee U.S. Bank.
   PER CURIAM.

Affirmed. Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010).

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


author: SHEPHERD, C.J. SALTER, J.

text:
    Yvette ASOUS, Appellant, v. In re The GUARDIANSHIP OF J.L. and M.L., Appellee.
    No. 3D12-2046.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2013.
    Roberta S. Mandel; Robert S. Glazier, Miami; Mark Wolin, for appellant.
    De Armas, Millich & Rice and Shaun Rice and Elizabeth de Armas, for appellee.
    Before SHEPHERD, C.J., and SALTER and LOGUE, JJ.
   SHEPHERD, C.J.

Yvette Asous appeals a non-final “Order Finding Fiduciary Relationship and Requiring Amended Complaint” rendered by the circuit probate court. The order, which directs Yvette Asous’s daughter, Melissa Antonopoulos, to file an amended complaint against her mother for breach of fiduciary duty in the management of former guardianship funds after the funds were properly distributed to Melissa upon her becoming of age and Yvette discharged as guardian, exceeds the scope of the issues raised or, for that matter, could have been raised by Melissa’s untimely Florida Rule of Civil Procedure l'.540(b)(3) motion to vacate a ten-year-old order of discharge. The trial court properly denied the motion to vacate, albeit for the wrong reason.

We vacate the order of the trial court with the directions to deny, without more, the motion to vacate as untimely. See Epicor Software Corp. v. Coopers & Clarke, Inc., 928 So.2d 1249, 1251 (Fla. 3d DCA 2006) (“Rule 1.540 expressly provides that a(b)(3) motion to set aside a final judgment for fraud, misrepresentation, or misconduct ‘shall be filed ... not more than 1 year after the judgment ... was entered or taken.’ Failure to raise this ground within that time deprived the court below of jurisdiction to address this claim.”).

So ordered.

LOGUE, J., concurs.

SALTER, J.

(dissenting).

I respectfully dissent from the majority’s conclusion that the “Order Finding Fiduciary Relationship and Requiring Amended Complaint” (Order) must be vacated in its entirety and that the probate division judge must “deny, without more, the [daughter’s] motion to vacate as untimely.” I believe that the circuit judge had jurisdiction to reach the limited findings and conclusions set forth in the Order, that those findings are correct on the facts and law, and that the appellant consented to the trial of the issues embodied in that Order.

Proceedings in the Circuit Court

The pleadings and trial record are more complicated than those presented by the majority. The appellant was the former wife of Jorge Leon, who died in 1987. Mr. Leon left a $100,000.00 life insurance policy benefitting his two minor children (Melissa, then age five, and Jorge Jr., then age eight). When the benefits were paid in 1988, a guardianship was created for each child, and the appellant served as the guardian. In 1989, the appellant remarried, and her new spouse later adopted the two children. The appellant is now known as Yvette Asous and the appellee/daughter as Melissa Antonopoulos.

In 2000, Melissa Antonopoulos turned 18, and the guardianship with the insur-anee proceeds (and twelve years of income on those proceeds) was terminated. Counsel for Ms. Asous filed a receipt indicating that all guardianship funds had been turned over to Ms. Antonopoulos and a release whereby Ms. Asous was released as guardian from any further liability. Ms. Asous was then discharged as guardian in March 2000.

In fact, and as established at trial without dispute, after Ms. Asous was discharged as guardian the guardianship proceeds were held and administered by Ms. Asous and her husband. The bank and securities accounts employed for this purpose did not indicate that they were fiduciary accounts. Mr. Asous and Ms. Asous also added the names of the two children of their own marriage to those accounts for a period between the discharge of Ms. Asous as guardian and the point at which, years later, Ms. Antonopoulos began investigating the funds left for her upon her father’s death. At trial, the testimony differed sharply as to how and when Ms. Antonopoulos learned that her late father had provided insurance proceeds for her use and benefit, and when she first began to request that all such funds be turned over and accounted for.

What is clear, however, is that when Ms. Antonopoulos did request the return of all the proceeds of the guardianship, they were not forthcoming. She retained an attorney who reviewed the guardianship file, sent a demand letter to Mr. Asous and Ms. Asous (March 14, 2008), and three weeks later filed a “Petition to Reopen Case, Petition for Status Conference, and Petition to Compel Guardian to Release Wards’ Assets.” In April 2008, the trial court reopened the case in order to permit the parties to present their claims and defenses to the petitions. In July 2008, Mr. Asous and Ms. Asous wired $22,877.40 in a Wachovia Securities account in their names to Ms. Antonopoulos’s (and her brother’s) counsel’s trust account, and Mr. Asous and Ms. Asous also wired $97,506.22 from the liquidation of their account at Schwab to the same trust account.

Although Mr. Asous and Ms. Asous maintained that (a) these were the only remaining guardianship funds (and earnings on those funds) and (b) they had not used any of the funds or earnings for their own purposes, they did not provide a written accounting to substantiate those claims. Importantly, Mr. and Ms. Asous’s disgorgement of such funds, over $120,000, did not occur until months after Ms. Anto-nopoulos had filed her petition to reopen the guardianship and the probate judge had reopened the case to receive evidence.

The trial court then set an evidentiary hearing on the petition to vacate the discharge of the guardian and to compel the turnover of the former wards’ funds. At trial, Ms. Antonopoulos sought to prove that her signatures on the documents closing the guardianship (waiving an accounting and consenting to discharge of the guardian) were forged, and that Mr. Asous and Ms. Asous had breached their fiduciary duties with respect to the guardianship funds paid over to them in 2000. The trial court’s Order found that Ms. Antonopoulos had not proven her claim that the guardianship papers were forged, given the conflicting expert handwriting testimony and the fact that the original documents were no longer in the court file.

The trial court’s Order went on, however, to find that Ms. Asous had admitted a fiduciary duty to Ms. Antonopoulos, and that her attorney had filed a pleading stating that both Ms. Asous and Mr. Asous had received the guardianship distributions, had kept detailed records for those funds, and had “always considered the monies as belonging to [Ms. Antonopoulos and her brother].... ” The trial court found that Florida Rule of Judicial Administration 2.505(h) made those concessions binding upon Mr. Asous and Ms. Asous. The court then found by clear and convincing evidence, citing sections 736.0103(19) and 736.0407, Florida Statutes (2012), and Charles Taylor Bogert, Trusts and Trustees (rev. 3d ed. 2008), that Ms. Asous as former guardian was the trustee of an express trust with resulting duties to account for the trust assets in her custody and not to commingle such funds with her personal assets. The court found that Ms. Asous breached her fiduciary duty to Ms. Antonopoulos, but directed that any further prosecution of such claims would have to be pursued in the civil (general jurisdiction) of the circuit court, “as the court finds the breach of a fiduciary duty to [Ms. Antonopoulos] occurred after the former guardian’s duties were concluded. In the alternative, the court will transfer the pending complaint for relief to the civil division with leave to amend.”

Analysis

I see no error or lack of jurisdiction in the probate division judge’s respect for the administrative line of demarcation established by the circuit court’s procedures regarding the probate and general jurisdiction divisions. In a pretrial order, the probate judge referred to the local rules of the circuit court establishing and defining those divisions, and noted that Ms. Anto-nopoulos could pursue guardianship issues (in the probate court) and equitable remedies (in the general jurisdiction division, as her brother’s claims were found to re-. quire).

The petition alleged facts which would have, if proven during the hearing, constituted a basis for relief from the final order discharging Ms. Asous as guardian, under Florida Rule of Civil Procedure 1.540(b), if commenced as an original proceeding. But because the primary claim involves the acts and omissions of a guardian and former guardian, this is a distinction without a difference on this record. Ms. Asous was served anew, she was represented by counsel, the petition was treated as an adversary proceeding for purposes of the probate and guardianship rules, and Ms. Asous filed motions and other pleadings in opposition to the relief sought. Ms. Anto-nopoulos could have filed her claims as an independent action in the general jurisdiction division, but under the local rules of the circuit, such an action would have been transferred to the probate division.

Once the parties proceeded to file pleadings and evidence regarding not only the alleged forgeries, but also (1) the former guardian’s conceded undertaking to hold and invest the funds and their proceeds for Ms. Antonopoulos, and (2) Ms. Asous’s and Mr. Asous’s use of those funds over the following years, the probate judge was not obligated by any applicable statute or rule to declare herself without jurisdiction to hear that evidence. The issue of whether Ms. Asous was a fiduciary with respect to the guardianship funds retained by her after discharge was immediately conceded by her; her defense, tried by consent, was that she had paid over all those funds, including earnings, and had not allowed any of those funds to be expended for any purpose other than the benefit of Ms. An-tonopoulos. See Rosenberg v. Guardian Life Ins. Co., 510 So.2d 610, 611 (Fla. 3d DCA 1987).

Ms. Asous and Mr. Asous presented evidence at the evidentiary hearing in the probate court in an effort to prove that all guardianship proceeds and earnings had been accounted for. The record fell short of establishing any such fact, and the probate court properly made that limited finding. The probate court had jurisdiction to do so — because a circuit judge is a circuit judge, no matter his or her assigned division — and the preliminary issues of the fiduciary duty applicable to the guardianship proceeds, breach of that duty, and failure to account were tried in that division. In the aftermath of those findings, which were supported by competent, substantial evidence at the evidentiary hearing, and which correctly applied the law, we should not preclude Ms. Antonopoulos from seeking her detailed accounting and, if warranted, damages for the breaches of duty, in the general jurisdiction division. For these reasons, I would affirm the probate court’s order. I respectfully dissent.

      . The record indicates that Ms. Antonopoulos became estranged from Ms. Asous and Mr. Asous after she turned 18.

      . Ms. Asous and Mr. Asous withheld Ms. An-tonopoulos's funds and did not account for them, even as Ms. Antonopoulos was working multiple jobs and struggling to pay tuition.

      . Ms. Antonopoulos’s brother did not seek to vacate the guardian's discharge; he sought an accounting and the turnover of the proceeds received by the former guardian for his use and benefit.

      . See Huffman v. Delacruz, 719 So.2d 385 (Fla. 4th DCA 1998).

      . Fla. Prob. R. 5.025(d)(2).

      . The trial record includes certain bank and securities account records, disbursements for an automobile, and occasional smaller checks to Ms. Antonopoulos. These records are not a complete accounting for the funds held by Ms. Asous for the time between her discharge as guardian through the time the probate court re-opened the case and Ms. Asous then transferred funds to the trust account of Ms. Asous’s attorney.

        .See Kates v. Lifter, 84 So.3d 1093, 1094 (Fla. 3d DCA 2012) (Schwartz, Senior Judge, concurring).


author: ROTHENBERG, J.

text:
    FEDERAL CONTRACTING, INC. d/b/a Bryan Construction, Inc., Appellant, v. BIMINI SHIPPING, LLC, Appellee.
    No. 3D13-1466.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2013.
    GrayRobinson, P.A., and Jeffrey T. Kuntz and Evan D. Appell, Ft.Lauderdale, for appellant.
    Law Office of Irv J. Lamel, and Irv J. Lamel, Miami; Yelen & Yelen PA, and Jan A. Yelen, Coral Gables, for appellee.
    Before WELLS, ROTHENBERG and EMAS, JJ.
   ROTHENBERG, J.

Federal Contracting, Inc. d/b/a Bryan Construction, Inc. (“Bryan”) and Bimini Shipping, LLC (“Bimini”) entered into a contract requiring Bimini to ship certain of Bryan’s goods from Miami, Florida, to the Bahamas. The contract contained a broad arbitration agreement mandating that “[a]ll disputes arising out of this contract shall be arbitrated in Miami-Dade County, Florida.” Upon receiving the goods, Bryan alleged that Bimini had damaged the goods during shipment. After Bryan timely sent Bimini a letter demanding arbitration and receiving no response, Bryan filed a complaint in Miami-Dade Circuit Court to compel arbitration and to select an arbitrator. Bimini filed a motion to dismiss Bryan’s complaint arguing that the suit was barred by the one-year statute of limitations for such actions provided in the Carriage of Goods by Sea Act, 46 U.S.C. app. § 1303 (“COGSA”). Although Bryan argued that the limitations period defense had to be decided by an arbitrator under the broad arbitration clause, the trial court granted Bimini’s motion and dismissed Bryan’s complaint.

Florida law favors arbitration as a matter of public policy, and broad arbitration provisions should be construed in favor of allowing arbitration of the disputed subject matter. O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185-86 (Fla.2006). Furthermore, “in general, issues of timeliness are to be decided by the arbitrator.” Id. at 186. O’Keefe dealt with an arbitration clause substantially identical to the clause in this case that “require[d] arbitration of ‘[cjlaims, disputes, and other matters ... arising out of or relating to’ the contract,” and squarely held that the statute of limitations defense was to be decided during arbitration, and not by the trial court. Id. at 188 (second alteration in original).

Bimini attempts to distinguish O’Keefe by arguing COGSA section 1303 provides a statute of repose, not a statute of limitation. Bimini therefore contends the trial court was required to rule on the motion because a statute of repose is jurisdictional in nature and extinguishes any right to recovery regardless of the pleadings. While Bimini is correct that statutes of repose are substantively different than statutes of limitation, see Barnett Bank of Palm Beach County v. Estate of Read, 493 So.2d 447, 448 (Fla.1986) (per curiam); Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So.2d 163, 166-67 (Fla. 4th DCA 1996), the Florida Supreme Court and this Court have both held COGSA section 1303 to be a statute of limitation. See, e.g., King Ocean Cent. Am., S.A v. Precision Cutting Sens., Inc., 717 So.2d 507, 510, 513-14 (Fla.1998); Brown v. Betty K. Agencies (USA) LLC, 61 So.3d 1156, 1157 (Fla. 3d DCA 2011).

Federal courts opining on the distinction have noted that there are certain similarities between COGSA section 1303 and statutes of repose, but have still continued to call it a limitation period. See, e.g., Senicios-Expoarma, C.A. v. Indus. Mar. Carriers, Inc., 135 F.3d 984, 988-89 (5th Cir.1998); Underwood Cotton Co., Inc. v. Hyundai Merck Marine (Am.), Inc., 288 F.3d 405, 408-10 (9th Cir.2002); Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir.1993). We have not found, nor has Bimini cited, any case law holding that COGSA section 1303 is a statute of repose. Furthermore, Bimini repeatedly and consistently referred to COGSA as a “statute of limitation” throughout the underlying litigation, including in its motion to dismiss. Only in its brief on appeal has Bimini tried to draw this distinction and categorize the COGSA provision as a statute of repose that deprives the trial court and arbitrator of jurisdiction. Thus, the trial court erred in ruling on the limitations defense and dismissing Bryan’s complaint.

Because we find that COGSA section 1303 is indeed a statute of limitation, and not a statute of repose, the determination whether Bryan’s claim is time-barred by the COGSA statute of limitation is one for the arbitrator to decide. O’Keefe, 944 So.2d at 186. We accordingly need not address any remaining arguments on appeal. We reverse with instructions to the trial court to vacate its order and issue a new order granting Bryan’s motion to compel arbitration without prejudice to Bimini to raise all appropriate defenses it may have during the arbitration process.

Reversed.


author: SUAREZ, J.

text:
    Charlain ST. CHARLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2299.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2013.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

On Motion for Rehearing

Charlain St. Charles moves for a rehearing and written opinion clarifying the panel’s July 24, 2013, opinion affirming the judgment below. We deny the motion. See Burrell v. Bd. of Trs. of Ga. Military Coll, 125 F.3d 1390, 1395 (11th Cir.1997) (providing that trial judges are presumed to know the law and to apply it in making their decisions); State v. Chaney, 375 Md. 168, 825 A.2d 452 (2003) (holding that trial judges are presumed to know and properly apply the law).

Rehearing denied.


author: SHEPHERD, C.J.

text:
    Heather FOWLER, Appellant, v. Vincent WALTON, Appellee.
    No. 3D12-3263.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2013.
    Abramowitz and Associates and Evan L. Abramowitz, for appellant.
    Cheri A. Shapiro, Key West; Sheri Smallwood, Key West, for appellee.
    Before SHEPHERD, C.J., and EMAS and FERNANDEZ, JJ.
   SHEPHERD, C.J.

On the authority of Cole v. Cole, — So.3d-(Fla. 3d DCA 2013), we reverse the order on appeal denying Heather Fowler’s petition for modification and remand for retrial or, if the parties stipulate to a ruling based on the record of the prior proceedings, continuation of the evidentia-ry hearing.

Reversed and remanded with instructions.


author: LOGUE, J.

text:
    US BANK NATIONAL ASSOCIATION as Trustee for WaMu Mortgage Pass Through Certificates for WMalt Series 2007-OA7, Petitioner, v. Gladys RIVERA and Dennis Rivera, Respondents.
    No. 3D13-128.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2013.
    GrayRobinson, P.A., and Thomas H. Loffredo, Terrance W. Anderson, Jr., and Jeffrey T. Kuntz, for petitioner.
    The Stabenow Law Firm, PLLC, and Tony L. Stabenow, for respondents.
    Before LAGOA, SALTER and LOGUE, JJ.
   LOGUE, J.

Petitioner seeks a writ of certiorari to quash two discovery orders, entered on December 12, 2012 and January 9, 2013, respectively. Respondents had moved to vacate a final judgment on two grounds: improper service and fraud upon the court by the Petitioner’s prior lawyers. The requested discovery related to the claim of fraud and was intended to support Respondent’s argument that the case should be dismissed with prejudice. We grant the writ and quash the two orders for the following reasons.

First, the discovery orders on review pertain to the production of materials that are protected by the attorney-client and other privileges, and, contrary to Respondent’s arguments, these privileges have not been waived. Prieto v. Union Am. Ins. Co., 673 So.2d 521, 523 (Fla. 3d DCA 1996) (citing Smith v. Armour Pharm. Co., 838 F.Supp. 1573, 1576 (S.D.Fla.1993)) (holding that the waiver of the attorney-client privilege must be intentional).

Second, discovery conducted after a final judgment has been entered and pursuant to a motion to vacate will normally be permitted only if the motion is supported by sworn proof of the allegations contained therein. Rooney v. Wells Fargo Bank, N.A., 102 So.3d 734, 736 (Fla. 4th DCA 2012) (‘We do not think that discovery can commence on a motion for relief from judgment based upon unsworn allegations.”). Respondents here have failed to satisfy this burden. The requested discovery related to the claim of fraud, but only the allegations with respect to the insufficiency of the service were supported by sworn proof. We, therefore, grant the petition for writ of certiorari and quash the orders under review.

      . Prior to Respondent’s motion, Petitioner, by its new counsel, itself moved to vacate the final judgment entered in its favor.


author: TORPY, C.J.

text:
    Charles N. BAXTER, Jr., Appellant, v. Tod NORTHRUP, D.O., An Individual, et al., Appellees.
    No. 5D12-2913.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2013.

      J. Alfred Stanley, Jr., of Meyers & Stanley, Jacksonville, for Appellant.
    Robert L. McLeod, II, and Elizabeth Scanlon Schoonover of The McLeod Firm, St. Augustine, for Appellee, Tod Northrup, D.O.
    Benjamin W. Newman and Richard L. Barry of GrayRobinson, P.A., Orlando, for Appellee, Flagler Hospital, Inc.
   TORPY, C.J.

Charles N. Baxter, Jr., appeals a final judgment entered in favor of Tod Northrup, D.O., and Flagler Hospital, Inc. (collectively “Appellees”) in a medical malpractice case. He contends that the trial court erred by entering summary judgment in favor of Appellees on their statute of limitations defenses. Concluding that a question of fact exists as to when Mr. Baxter knew or should have known of the possibility of medical negligence, we reverse.

Dr. Northrup performed left hip replacement surgery on Mr. Baxter at Fla-gler Hospital on November 2, 2004. The next day, Mr. Baxter noticed that his leg was numb and that he had a foot drop. Dr. Northrup and medical staff told him that these symptoms would abate after a period of physical therapy. Based upon these assurances, Mr. Baxter continued treatment with Dr. Northrup. When Mr. Baxter’s symptoms did not improve, on April 6, 2005, Mr. Baxter saw neurologist Dr. Potter, who advised him that his neurological deficit was likely permanent. Mr. Baxter thereafter sought legal counsel, served a statutory notice of intent on June 25, 2007, and filed the instant malpractice action.

Appellees moved for summary judgment, asserting that the notice of intent and lawsuit were untimely because the statute of limitations, with tolling, had expired on February 1, 2007. They argued that the statute of limitations began to run on November 8, 2004, the day when Mr. Baxter became aware that he had, foot drop. The trial court agreed. It granted summary judgment in favor of Appellees, concluding that the statute of limitations commenced to run on November 2, 2004, “upon the Plaintiffs discovery of the injury itself....”

A trial court’s ruling on a motion for summary judgment is subject to a de novo standard of review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). It is axiomatic that “[s]ummary judgment is proper [only] if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. When expiration of the statute of limitations is the basis of a summary judgment motion, the movant has the burden of showing “conclusively that there was no genuine issue of fact that the statute of limitations had expired before the filing of the [complaint].” Green v. Adams, 343 So.2d 636, 637 (Fla. 4th DCA 1977). An appellate court must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party; if the slightest doubt exists, summary judgment must be reversed. Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So.2d 695, 698 (Fla. 5th DCA 2006).

Pursuant to section 95.11(4)(b), Florida Statutes, an action for medical malpractice must be commenced “within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence. The dispositive question in this case is when Mr. Baxter discovered or should have discovered that there was a reasonable possibility that medical malpractice caused his injury. The trial court determined that this occurred when Mr. Baxter discovered the foot drop on either the day of or the day following his surgery. To sustain this conclusion under our de novo review standard, we must agree that “[t]he nature of the injury, standing alone, .... [was] such that it communicate[d] the possibility of medical negligence.... ” Tanner v. Har-tog, 618 Solid 177, 181 (Fla.1993). In other words, we must determine that the nature of the injury itself communicated to the lay patient an injury caused by malpractice, rather than one naturally caused. See Cunningham v. Lowei~y, 724 So.2d 176, 179 (Fla. 5th DCA 1999) (involving delay in diagnosing staphylococcus infection during treatment for back pain). Where the injury is “obviously” the product of malpractice, such as when the wrong limb is amputated, the statute will commence to run when the patient discovers the injury. Rodriquez v. Saenz, 866 So.2d 184, 187 (Fla. 5th DCA 2004). This is because the injury “speaks for itself,” communicating both the fact of injury and the fact of malpractice. Cunningham, 724 So.2d at 179. In less than obvious cases, the resolution of this question is “very often” a question of fact for the jury. Id. (citing Tanner, 618 So.2d at 182).

Here, we cannot conclude as a matter of law that Mr. Baxter’s post-surgical symptoms were such that medical malpractice was a reasonable possibility. Dr. Northrup himself testified in his deposition that foot drop is a known complication of total hip replacement surgery that is specifically discussed with the patient before surgery. According to Dr. Northrup’s interrogatory answers, “[a]n appreciable percentage of foot-drop symptoms occurring after hip replacement cannot be assigned to a cause.” As of the date of his deposition, Dr. Northrup still did not know the cause of Mr. Baxter’s foot drop. In the opinion of one of the defense experts, a physician, Mr. Baxter’s foot drop was “a known and accepted risk of this particular surgery, and it was not due to any negligence on the part of the defendants.” It is difficult to envision how a layperson can be charged with the knowledge that particular symptoms suggest an act of negligence when medical professionals, who scrutinize the case with the clarity of hindsight, conclude that the symptoms are the product of unexplained, natural causes.

In deciding this issue, the jury can also take into consideration the post-operative treatment and discussions that occurred. Mr. Baxter specifically pled that he “relied upon the representation of the defendants as to the plaintiffs post-operative surgical symptomatology as being the normal and customary sequelae of the subject surgical procedure.” This allegation was not negated in the application for summary judgment, and Mr. Baxter’s sworn interrogatory answers support this assertion. As we have previously observed:

[I]t would seem that if the law is to place on a layperson ... the burden of appreciating malpractice at ... [a particular moment when the statute is said to commence], then the law must by rights impose on the physician a concomitant duty of disclosure.

Cunningham, 724 So.2d at 180-81.

In Cunningham, the patient’s diagnosis and treatment for a staphylococcus infection were delayed by several months while he was being treated for a back injury. The physician continued to treat the patient for his back injury after the infection was diagnosed and the patient ultimately died as a result of a pulmonary embolus. Id. at 177. At one point following the patient’s death, the physician told the patient’s wife that “there is some things that you ... that just can’t be explained,” implying that the death was unpreventable and not the result of negligence. Id. at 179. Later, the same physician argued that the statute began to run as soon as the infection was discovered. We held that summary judgment was improper. We quoted with approval the concurring opinion of Justice Kogan in Tanner:

Where plaintiffs have little or no special expertise and were told that the untoward event was “natural” or non-negligent, then I can envision only a few extraordinary situations in which the statute will begin to run on the date of the event itself. This in part embodies an estoppel concept: Medical providers or their agents who convince patients that an untoward medical event was “natural” and non-negligent will rarely be permitted to deny that same representation is correct for purposes of statutes of limitation. Even where medical providers avoid making any such representations, however, the court still must look at the issue from the perspective of the actual plaintiffs, in light of their training and skill.... [W]e have no indication that the [family] possessed other training or skills that might have led them to suspect a likelihood of negligence based on the facts before them....

Cunningham, 724 So.2d at 180 (quoting Tanner, 618 So.2d at 185 (Kogan, J., concurring)). We concluded:

It would be both fair and desirable in order for a physician to claim the benefit of the running of the statute of limitations in a misdiagnosis case from the moment of the correct diagnosis, that the physician who continues to treat the patient be required to disclose to the patient or the patient’s representative the fact of and the possible significance of the misdiagnosis. Had Dr. Lowery done so, the statute clearly would have begun to run from the moment of his disclosure.

Id. at 182.

More recently, our sister court embraced Cunningham and Justice Kogan’s concurring opinion in the context of a surgical negligence claim. In Cohen v. Cooper, 20 So.3d 453 (Fla. 4th DCA 2009), following cosmetic surgery, the plaintiff experienced excruciating pain in her eye. For several months after the surgery, the physician continued to treat the plaintiff and assure her that her pain was “normal” and that her recovery would be slow. Id. at 454. At some point when the symptoms did not improve, the plaintiff initiated a malpractice claim. The physician successfully argued to the trial court that the post-operative pain was the event that commenced the running of the statute of limitations. Id. The Fourth District reversed, concluding that issues of fact precluded summary judgment on the statute of limitations defense. It stated that “[a]s a result of [the physician’s] assurances that [the plaintiffs] eye condition would improve, [the physician] cannot now claim that [the plaintiff] should have known three days after the initial surgery that her pain was the result of his negligence.” Id. at 456.

Here, Mr. Baxter claims that similar assurances and non-disclosure dispelled the specter of negligence. Borrowing once again from Cunningham, we conclude:

In this case, ... [Mr. Baxter], an ordinary person unschooled in medicine, was left to figure malpractice out for [himself]. In such a case, a jury should decide whether what [he] knew ... was enough to conclude that the statute of limitations had expired when the suit was filed. A jury will have to sift through this evidence and determine where the truth lies.

724 So.2d at 181.

Finally, we have not overlooked Appellees’ argument that, alleged representations notwithstanding, the statute commenced to run at the latest on the last day Mr. Baxter treated with Dr. Northrup (March 25, 2005) rather than when Mr. Baxter learned of the permanent injury from Dr. Potter (April 6, 2005). Appellees argue that this is significant because, if the statute commenced to run on March 25, the notice of claim was received two days late and accordingly did not serve to toll the limitations period. Although this was not the basis upon which the trial court granted summary judgment, Appellees advance this argument as an alternative basis to affirm. We reject this argument for two reasons. First, the tolling period commences when the notice is served in accordance with Florida Rule of Civil Procedure 1.650(d)(1). Boyd v. Becker, 627 So.2d 481 (Fla.1993), upon which Appellees rely, only addresses the commencement of the period within which suit must be filed following the service of the notice. Boyd resolved a rule conflict and effected a sua sponte amendment to rule 1.650(d)(3), to provide that suit must be filed within a certain period after the notice is “received.” No change was made to rule 1.650(d)(1), which merely mandates that service of the notice of intent by certified mail must be accomplished before expiration of the statute of limitations. Second, even assuming that the tolling period did not commence until receipt of the notice, there is nothing in this record to conclusively establish that Mr. Baxter learned anything on March 25 (or anytime before April 6) to alert him to the possibility of malpractice. Though Mr. Baxter’s suspicions might have been mounting throughout the period following his surgery, this alone does nothing to pinpoint, as a matter of law, a definitive start date for the commencement of the running of the statute. This is a question for the jury, not appropriate for summary judgment.

REVERSED and REMANDED.

WALLIS, J., concurs.

GRIFFIN, J., dissents without opinion.

      . Sections 766.104 and 766.106, Florida Statutes, provide for tolling of the statute of limitations under certain circumstances.


author: PER CURIAM. MAKAR, J.,

text:
    J.W.A., a child, Appellant, v. STATE of Florida, appellee.
    No. 1D13-0031.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2013.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF and OSTERHAUS, JJ., concur.

MAKAR, J., Specially concurs with opinion.

MAKAR, J.,

Specially concurring.

On a rainy afternoon in May 2012, J.W.A. stole a super-charged 1997 Pontiac Grand Am with “all the bells and whistles” from a hospital parking lot, driving it through a flooded area where it stalled and-pertinent to this appeal-stopped running for the last time. He pled guilty to grand theft auto, was adjudicated delinquent, and now appeals the restitution order of $2,850, which reflects the Bluebook value of the defunct vehicle.

At the restitution hearing, the car’s owner, amateur auto mechanic Dontel Austin, testified, as did his fiancée, Latoya Whiting, who had driven the car to her job at the hospital the day it was stolen. Ms. Whiting worked at the hospital with J.W.A.’s mother, who said her son had taken the car; J.W.A. confessed his involvement to Ms. Whiting, saying the car was driven through a flooded area where it stalled and was abandoned. Ms. Whiting testified that the car was in “perfect” condition prior to its theft other than a broken needle on the gas gauge. The officer who recovered the car the evening of its theft, however, was unable to start it because the engine would not turn over; the husband of the impound lot clerk, who is a certified mechanic, was unsuccessful in getting it to start as well.

Neither Ms. Whiting nor Mr. Austin could get it to start when they went to recover it a few days later at the police impound lot. When the car failed to start in the impound lot, Mr. Austin left and brought back a newly-purchased battery, which failed to start the car. After more remediation attempts failed, he paid to have a tow truck take the car to his home, where he continued to try to get the Grand Am to start. Over the next few days, Mr. Austin, who “knows his way around a vehicle pretty good” and does all repair and maintenance work on his own cars, spent much time and money on trying to get the Grand Am to start. He “tried everything” to get the engine to work. He took it apart and tried to get the car to “crank” but it was “seized up” and would not respond. While inspecting the internal engine parts, he discovered rust on the ports and valves, which was not there previously. Given all the new-found internal damage to the engine, he felt he “couldn’t do nothing” more with it because it “was shot.” He felt his options were to either replace/rebuild the special engine or buy a new car. He got a written estimate of $5,200 from an automotive repair group to replace the unique engine necessary for the supercharged car; the car’s Bluebook value was $2,850; he did not have an estimate on rebuilding the existing engine.

J.W.A.’s counsel, who asked no questions of either Ms. Whiting or Mr. Austin and presented no witnesses or evidence, stipulated to and did not contest the amount of the written estimate or the Bluebook value. Instead, J.W.A. argued only that the evidence failed to establish that driving the car into the water caused the extent of damage shown. The trial court expressed some doubt about how quickly the rust formed inside the engine (thinking it formed in hours versus days later when it was discovered), but awarded Mr. Austin the $2,850 Bluebook value of the vehicle, saying it made little sense to put a new $5,200 engine in a car worth only half that amount.

Victims of crime in Florida are entitled to restitution, § 775.089, Florida Statutes, the award of which is reviewed for an abuse of discretion. State v. Childers, 979 So.2d 412, 415 (Fla. 1st DCA 2008) (citing section 775.089(7), Florida Statutes (2007)). The State’s statutory burden to prove restitution is the preponderance of the evidence standard. § 775.089(7), Fla. Stat. (2007); Fisher v. State, 722 So.2d 873 (Fla. 1st DCA 1998). A trial court need only find, by competent substantial evidence, that a loss was causally connected to the offense, either directly or indirectly, and that it bears a significant relationship to the offense. Koile v. State, 902 So.2d 822, 824-25 (Fla. 5th DCA 2005), approved and remanded, 934 So.2d 1226 (Fla.2006).

Preliminarily, no appellate issue exists regarding the market value of the Grand Am or the cost of replacing its unique (but ruined) engine. J.W.A. stipulated to these amounts below, and does not make an issue of the magnitude of the loss sustained.

Rather, on appeal J.W.A. claims only that the trial court “abused its discretion in imposing restitution without proof the damage was caused by Appellant’s offense, grand theft auto.” He seeks reversal because the “award in this case is based on doubtful evidence that two days of rust destroyed the engine” thereby failing to establish causation. In essence, he claims no competent evidence supports the conclusion that stealing a car and driving it through a flooded area can result in the total loss of the engine or the value of the car.

The uncontested evidence established that (1) the car ran perfectly prior to the theft; (2) it was stolen and driven through a flooded area where its engine stalled and could not be restarted; (3) the officer who recovered the car later that evening testified he could not get the car to start; and (4) Mr. Austin testified the car would not start despite extensive remedial efforts over the next several days. Under these circumstances, it is clear that the damage to the car was caused either directly or indirectly by driving the stolen car through a flooded area where it stopped running; at the very least, the damage was related to J.W.A.’s criminal episode. See § 775.089, Fla. Stat. Indeed, cars that have been in flood waters are almost presumed to have serious, often irremediable, problems, leading to consumer warnings by state attorneys’ general and consumer advocates. Flood vehicles from Hurricane Katrina and Superstorm Sandy have accentuated and highlighted the problem.

While the only evidence of the cause of the damage came from the testimony of the owner-it was more than sufficient. See State v. Hawthorne, 573 So.2d 330, 333 n. 6 (Fla.1991). Mr. Austin was qualified to testify about the extent of the damage that caused vehicle to cease operating based on his experience of exclusively maintaining his cars. B.L.N v. State, 722 So.2d 860 (Fla. 1st DCA 1998), which was not a causation case, is distinguishable. The only issue preserved below and framed on appeal by J.W.A. was whether the theft of the auto and driving it into a flooded area caused the loss sustained. The State easily met its burden to show it did. Moreover, the trial judge erred in speculating about the rust in the engine; he was skeptical that the rust could have formed in six hours. The record shows, however, that the rust was first discovered at least two days after the car’s recovery. That the flooded engine would not start the evening the car was stolen, does not mean rust must have formed at that point; flooding of the engine alone could have caused the engine to cease operating. That rust might form over the following two days, causing the engine further damage, is the logical proof of events the State presented.

In summary, proving restitution should not be a gauntlet of legal “gotchas” that crime victims must walk; nor is it an opportunity to cash in on an unfortunate event. Here, Mr. Austin invested much of his personal time, effort, and money to mitigate a loss he did not even cause. Beyond all his remediation efforts, he spent time getting an estimate for the engine and had to prepare for, attend, and testify at a restitution hearing; so did his fiancée. Flood cars are uniquely susceptible to catastrophic damage, potentially rendering them worthless. That the Grand Am was reduced to its modest Blue-book value of $2,850 under these circumstances is supported by competent substantial evidence and common sense.

      . See, e.g., Ellen Taverna, Clearing the Road of Flood-Damaged Vehicles, NAAGazette (National Association of Attorneys General), Feb. 18, 2009 (Vol.3. No. 1), http://www.naag.org/ clearing-the-road-offlood-damaged-vehicles. php


author: SILBERMAN, Judge.

text:
    Aaron SWANSON, Appellant, v. Linda J. ROBLES, as Personal Representative of the Estate of Miguel A. Mercado, Deceased, Appellee.
    No. 2D12-1257.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2013.

      Joseph F. Kinman of Ogden & Sullivan, P.A., Tampa, and Henry G. Gyden and Dorothy V. DiFiore of Haas, Lewis, DiF-iore P.A., Tampa, for Appellant.
    Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Weldon Earl Brennan of Brennan, Holden & Kavouklis, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

As the result of a vehicular collision, Linda J. Robles, as personal representative of the estate of Miguel A. Mercado, deceased, brought this wrongful death action against Aaron Swanson. Swanson appeals from the final judgment totaling over $6,000,000. We conclude that the trial court committed reversible error in allowing irrelevant and highly prejudicial evidence of Swanson’s drug use in the first phase of trial when he had admitted liability for both compensatory and punitive damages. Therefore, we reverse and remand for a new trial. The other two issues Swanson raises are moot in light of this disposition.

On October 19, 2008, Swanson was driving his truck when he collided with a vehicle owned by the City of Tampa that was parked in the striped median area of the road. City employee Miguel Mercado was standing at the rear of the city vehicle and unloading traffic counters. Swanson’s truck struck Mercado and caused his immediate death.

Mercado’s estate brought a wrongful death action against Swanson, seeking compensatory damages for his widow, Gloria Mercado, and compensatory and punitive damages for the estate (collectively referred to as the Plaintiff). Swanson filed motions to bifurcate the trial to prevent prejudicial evidence of his drug use from being admitted in the first phase of trial in which the jury would determine compensatory damages. He argued that the evidence of his drug use would inflame the jury and affect its deliberations regarding compensatory damages.

The trial court ruled that the trial would proceed in two phases, the first dealing with entitlement to compensatory and punitive damages and the second dealing with the amount of punitive damages. The trial court also denied the motions in li-mine and concluded that evidence of Swanson’s drug use was relevant to the Plaintiffs entitlement to punitive damages.

Shortly prior to trial, Swanson admitted that he was negligent and the sole proximate cause of the collision. He also admitted that he acted with gross negligence and conceded that the Plaintiff was entitled to punitive damages. Swanson then sought to exclude evidence of his drug use from the compensatory phase of the trial. He argued that because the Plaintiffs entitlement to punitive damages was conceded and no longer a jury issue, evidence of his drug use was no longer probative of any material issue of fact in the compensatory phase of the trial. He contended that the evidence of drug use should be admissible only in the second phase of trial when the jury determined the amount of punitive damages.

The trial court ruled that the evidence of Swanson’s drug use was admissible during the compensatory phase of trial. This ruling was based on the Plaintiffs argument that evidence of Swanson’s drug use was relevant to prove Mrs. Mercado’s compensatory damages because knowing that Swanson had engaged in such conduct and gone unpunished increased her pain and suffering.

Because the trial court had ruled that the evidence of drug use would be admitted in the compensatory damages phase of the trial, Swanson withdrew his motion for bifurcation and stipulated to the trial being conducted in one phase. Swanson’s reasoning was that bifurcation had become pointless because the evidence of his drug use would come in during the first phase of trial even though it was only relevant to the amount of punitive damages; if the trial were bifurcated, the parties would have called the same witnesses back in the second phase to repeat their testimony regarding Swanson’s drug use.

At trial the Plaintiff presented evidence through numerous witnesses regarding Swanson’s drug use. The evidence showed that after the collision, which occurred at approximately 7:50 a.m., Swanson was sleep deprived and had in his system a generic form of Xanax, a trace amount of methadone, and a metabolite of marijuana. He also had a drink of alcohol the night before the collision. Swanson was a recovering heroin addict, he had missed a methadone treatment, and he was on his way to a methadone clinic at the time of the accident. In addition, marijuana was found in his truck.

A Plaintiffs expert testified to the synergistic effect of multiple substances and sleep deprivation on Swanson. The expert opined within a reasonable degree of pharmacological certainty that it was more likely than not that Swanson was impaired. The defense expert opined that it was speculation whether the combination of drugs in Swanson’s system would have impaired him.

When Mrs. Mercado testified as to her pain and suffering, she was asked if how her husband died affected her. She testified that her husband meant everything to her, but she did not specifically comment on the effect his death had on her based on the manner in which he died. In fact, it was not clear at trial that Mrs. Mercado was even aware of Swanson’s drug use.

The jury awarded compensatory damages of $18,104 to the estate for funeral expenses, $419,339.15 to Mrs. Mercado for loss of support and services, and $4,250,000 to Mrs. Mercado for pain and suffering. The jury awarded punitive damages of $1,500,000 to the estate. The jury found that Swanson was under the influence of alcohol or drugs to the extent that he was impaired at the time of the accident. Swanson filed motions for re-mittitur and a motion for new trial which the trial court denied. We agree with Swanson’s argument that the trial court committed reversible error in ruling that evidence of Swanson’s drug use was admissible in the compensatory damages portion of the trial and that a new trial is necessary.

The admissibility of evidence is within the trial court’s discretion, but the rules of evidence limit that discretion. Michael v. State, 884 So.2d 83, 84 (Fla. 2d DCA 2004); Shaw v. Jain, 914 So.2d 458, 460 (Fla. 1st DCA 2005). The rules of evidence provide for the admission of relevant evidence and define relevant evidence as “evidence tending to prove or disprove a material fact.” §§ 90.401, .402, Fla. Stat. (2011). And, even if relevant, evidence is inadmissible when “its probative value is substantially outweighed by the danger of unfair prejudice.” § 90.403.

When a defendant admits liability in an automobile negligence case and the only remaining issue is the amount of compensatory damages, evidence regarding the defendant’s sobriety should not be admitted into evidence. Neering v. Johnson, 390 So.2d 742, 744 (Fla. 4th DCA 1980); see also Shaw, 914 So.2d at 460 (determining that the plaintiffs use of marijuana was not relevant to her injuries and the evidence should not have been admitted). When a defendant admits the entire responsibility for an accident and only the amount of damages is at issue, evidence regarding liability is irrelevant and prejudicial. Metro. Dade Cnty. v. Cox, 453 So.2d 1171, 1172-73 (Fla. 3d DCA 1984) (citing Barton v. Miami Transit Co., 42 So.2d 849 (Fla.1949)). In Cox, the Third District determined that the defendant’s conduct was relevant to the jury’s determination when comparative negligence was an issue. Id. at 1173.

In the present case, Swanson admitted that he was negligent and the sole proximate cause of the accident. Evidence of Swanson’s drug use was highly prejudicial and could serve to inflame the jury against him. See Bromiing v. Lewis, 582 So.2d 101, 101-02 (Fla. 2d DCA 1991) (stating that evidence in medical malpractice suit of mother’s drug use while pregnant was not shown to be relevant and was highly prejudicial to the plaintiffs case); Mount v. Camelot Care Ctr. of Dade, Inc., 816 So.2d 669, 670 (Fla. 3d DCA 2002) (recognizing that evidence of prior drug use had the effect of inflaming the jury against a witness and depriving the plaintiff of a fair trial).

The evidence at trial showed that Mrs. Mercado’s compensatory damages for her pain and suffering resulted from the loss of her husband’s companionship and protection. The evidence of Swanson’s drug use was not relevant to the determination of Mrs. Mercado’s pain and suffering. In fact, on appeal, the Plaintiff has given up the theory argued at trial — that Swanson’s misconduct affected Mrs. Mercado’s mental anguish — to support the admission of evidence of drug use.

Rather, the Plaintiff now argues that evidence of Swanson’s misconduct was admissible in the first phase of trial as relevant to liability for punitive damages, relying upon W.R. Grace & Co.-Conn. v. Waters, 638 So.2d 502 (Fla.1994). In W.R. Grace the Florida Supreme Court held that

trial courts, when presented with a timely motion, should bifurcate the determination of the amount of punitive damages from the remaining issues at trial. At the first stage of a trial in which punitive damages are an issue, the jury should hear evidence regarding liability for actual damages, the amount of actual damages, and liability for punitive damages, and should make determinations on those issues. If, at the first stage, the jury determines that punitive damages are warranted, the same jury should then hear evidence relevant to the amount of punitive damages and should determine the amount for which the defendant is liable.

W.R. Grace, 638 So.2d at 506. Thus, in the first phase of a bifurcated trial, the jury hears evidence of liability for compensatory damages, the amount of compensatory damages, and liability for punitive damages. In the second phase, the jury then determines the amount of punitive damages. Id.

Here, Swanson admitted that he was negligent and the sole proximate cause of the collision. Unlike the situation in W.R. Grace, liability for compensatory damages was no longer at issue. Swanson also admitted that he acted with gross negligence and conceded that the Plaintiff was entitled to punitive damages. Thus, liability for punitive damages was no longer at issue. There was no reason to admit evidence of his drug use in a bifurcated first phase other than to inflame the jury and increase the compensatory damages verdict.

Although not cited by the parties, we are aware of the Fourth District’s decision in Dessanti v. Contreras, 695 So.2d 845 (Fla. 4th DCA 1997). There, the defendants argued that the trial court erred in failing to bifurcate the issue of punitive damages from the issues of negligence and compensatory damages. Id. at 845. In their motion to bifurcate, the defendant driver and the defendant owner of the vehicle had asserted that the driver was willing to admit liability for punitive damages, although he would not admit the underlying fact of his intoxication. Id. at 846. The trial court denied the motion to bifurcate. The jury awarded compensatory damages against the driver and the owner of $1,000,000 and punitive damages against the driver of $110,000. On motion for remittitur, the trial court reduced the punitive damages award to $5,000.

The Fourth District stated that the defendants essentially sought a ruling that “evidence on liability for punitive damages was so prejudicial that it should not have been presented in the same proceeding” that determined compensatory damages. Id. at 847. The court stated that the bifurcation pursuant to W.R. Grace was intended to prevent “the prejudicial effect of introducing evidence of other punitive damage awards when the defense” theory was that the defendant’s actions did not warrant punishment. Id. at 846. According to the Dessanti court, W.R. Grace did “not compel bifurcation of issues so that the defendant can prevent prejudicial information regarding his liability for punitive damages from reaching the jury.” Id. at 847. The Fourth District determined that the failure to bifurcate financial issues from liability issues was harmless error as to the driver, noting his meager net worth and the fact that the trial court entered a remittitur on the punitive damages award. Id.

As noted previously, the court in W.R. Grace stated that “[a]t the first stage of a trial in which punitive damages are an issue, the jury should hear evidence regarding ... liability for punitive damages.” 688 So.2d at 506. We determine that it is consistent with the reasoning in W.R. Grace to prohibit evidence of liability for punitive damages from the first stage of a bifurcated trial when the defendant has unequivocally stipulated to liability, including for punitive damages, so as not to inflame the jury during its determination of compensatory damages. To the extent this opinion conflicts with Dessanti, we certify conflict.

In the second phase of a bifurcated trial, however, the evidence of Swanson’s drug use is relevant to the amount of punitive damages. The Plaintiff argues that although Swanson admitted liability for punitive damages, he did not admit that he was impaired at the time of the accident and that this was a liability issue based on the statutory cap on punitive damages. Punitive damages are generally limited to the greater of three times the amount of compensatory damages or $500,000. § 768.73(l)(a), Fla. Stat. (2008). Section 768.736 removes the cap on punitive damages if the jury finds that the defendant was impaired by drugs or alcohol. The issue of whether to cap punitive damages relates to the amount of damages, not to whether the Plaintiff is entitled to punitive damages at all. Therefore, Swanson’s impairment is relevant to a determination of the amount of punitive damages in the second phase of a bifurcated trial.

The ruling to allow evidence of Swanson’s drug use in the first phase of a bifurcated trial was highly prejudicial and that evidence was irrelevant based on the concessions Swanson made. In light of those concessions, we reverse and remand for a new trial on all compensatory damages in phase one. In phase two the jury will consider and determine the amount of punitive damages.

Reversed and remanded; conflict certified.

NORTHCUTT and CASANUEVA, JJ„ Concur.


author: SLEET, Judge.

text:
    Susan Lee FLAHERTY, Appellant, v. Jerald Charles FLAHERTY, Appellee.
    No. 2D12-3192.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2013.

      Alison B. Copley, of Alison B. Copley, P.A., Sebring; and Cynthia L. Greene of Law Offices of Greene Smith & Associates, P.A., Miami, for Appellant.
    Mark A. Sessums of Sessums Law Group, P.A., Lakeland, for Appellee.
   SLEET, Judge.

The former wife appeals the final judgment of dissolution. She specifically challenges the circuit court’s determination that the parties’ prenuptial agreement was valid and enforceable as a result of the application of laches and ratification. She does not challenge the trial court’s determination that she is not entitled to any alimony under section 61.08, Florida Statutes (2012). Because it is clear from the record that the former wife is not entitled to alimony under section 61.08, we affirm that portion of the judgment. However, we reverse the court’s determination that the parties’ prenuptial agreement was valid and enforceable. Because the trial court’s determination of equitable distribution was affected by its validation of the prenuptial agreement, we also reverse on that issue.

Facts

After living together for several years, the former husband proposed marriage to the former wife on February 14, 2002. The former husband first mentioned a prenuptial agreement to the former wife in early June 2002. He delivered the first draft of the prenuptial agreement in late June 2002, less than one month before their July 13, 2002, wedding date. Upon delivery of the first draft, the former husband gave the former wife the names of a few attorneys to consult with regarding the prenuptial agreement. The former wife met with an attorney on July 2, 2002, eleven days before the wedding. The attorney initially advised her not to sign the prenuptial agreement because it waived all of her rights to an elective share, required a release of any interest in assets acquired during the marriage, and waived her rights to any form of alimony or award of attorney’s fees. Nevertheless, the attorney told the former wife that she would contact the former husband’s attorney in an attempt to revise the agreement. Unfortunately, the former wife did not hear from her attorney again until after the wedding.

The wedding took place in Las Vegas, and the former wife left a few days early to begin preparations. The next time she saw the prenuptial agreement was when she picked up the former husband at the Las Vegas airport at 11:30 p.m. the night before the wedding. He handed the final draft to her and told her to sign it and get it notarized. She frantically went about searching for a notary in Las Vegas until 2:00 a.m. and did not read the agreement before she signed it.

The final draft of the prenuptial agreement signed by the former wife was identical to the first draft except for two reví-sions that allowed for limited alimony based on the former husband’s current net worth and the, former husband’s, agreement to provide her with health insurance. The former wife’s attorney received the final executed prenuptial agreement in late July after the wedding. On August 2, 2002, she sent a letter to the former wife wherein she vaguely expressed that the prenuptial agreement remained unfavorable and inequitable. Rather than advise her about -any legal recourse against the prenuptial agreement, the attorney requested that the former wife call her if she had any concerns. The former wife filed the letter away and did not pursue the prenuptial agreement further.

The former wife’s petition for dissolution of marriage did not mention the prenuptial agreement. In his answer, the former husband asserted that the prenuptial agreement should govern and settle issues of equitable distribution and support between the parties. In response, the former wife filed a verified motion to set aside the prenuptial agreement.

The motion to set aside the prenuptial agreement was heard in December 2009. The court heard testimony from the parties, their respective witnesses, and their attorneys and ruled that the former wife signed the prenuptial agreement under duress and declared it voidable, making it subject to the equitable defenses of ratification and laches. See Bakos v. Bakos, 950 So.2d 1257, 1259-60 (Fla. 2d DCA 2007). Thereafter, the court denied the motion to set aside the prenuptial agreement because the former “wife’s inaction” after being notified by her attorney of the inequity of the agreement operated as a ratification of the agreement. The court also found that the former wife’s more than six-year delay in challenging the prenuptial agreement constituted laches.

The parties proceeded to a final hearing in August 2011 and March 2012. The newly assigned trial judge agreed to rehear the issue of the validity of the prenuptial agreement along with the issues of equitable distribution, alimony, support, and fees. The judge informed the parties that any decision about alimony would not be affected by the ruling on the validity of the prenuptial agreement. After hearing testimony and evidence about the prenuptial agreement, the court reaffirmed the validity of the prenuptial agreement and deemed it enforceable as to all of the former wife’s claims. Additionally, the court heard lengthy testimony and evidence concerning equitable distribution and alimony. Although the former wife requested over $7000 a month in alimony, the former wife’s accountant could not render an opinion about the parties’ marital standard of living. The former husband’s vocational expert opined that the former wife was educated, healthy, and could earn up to $48,000 a year. The court held that “even if the prenuptial agreement were not enforceable, the former wife worked prior to the marriage, during the marriage, and since separation” and that the former wife was not entitled to alimony according to the enumerated statutory factors in section 61.08. Furthermore, the court found that the former wife did not propose a rehabilitative plan for alimony and that this was a short-term marriage with no presumption for alimony.

Review of the record demonstrates that the trial court addressed equitable distribution of the assets in accordance with the prenuptial agreement. There is no indication that the court deviated from the provisions of the prenuptial agreement concerning the post-dissolution distribution of the parties’ assets. The parties had non-marital assets they brought to the marriage and marital assets acquired during the marriage. The most substantial asset was the former husband’s pawn business of which he was the sole owner. Notwithstanding, there was evidence that the former wife previously invested money in the business. The prenuptial agreement awarded the business to the former husband without any consideration as to the valuation of the business and whether the former wife was entitled to any appreciation value.

Analysis

“We review a trial court’s determination of the voidability of an antenup-tial agreement for competent, substantial evidence.” Bakos, 950 So.2d at 1259. The trial court’s application of the doctrine of laches “is reviewed for abuse of discretion, provided that there is competent, substantial evidence for each element of the doctrine.” Dep’t of Revenue ex tel. Thorman v. Holley, 86 So.3d 1199, 1202 (Fla. 1st DCA 2012).

We agree that there was competent substantial evidence to deem the prenuptial agreement voidable. See Bakos, 950 So.2d at 1259. “[Wjhen there are ‘sufficient coercive circumstances surrounding the execution of the agreement as to give rise to a presumption of undue influence or overreaching,’ [the proponent of the prenuptial agreement] has the burden of coming forth with evidence on the issue of voluntariness on the part of the other party.” Id. (quoting Lutgert v. Lut-gert, 338 So.2d 1111, 1116 (Fla. 2d DCA 1976)); see also Casto v. Casto, 508 So.2d 330, 333 (Fla.1987). Here, the former husband did not offer any evidence to demonstrate that the former wife voluntarily signed the agreement. Thus, the trial court’s analysis should have ended there and the agreement should have been set aside based upon duress and coercion.

Inexplicably, the trial court went where no Florida court has gone before and raised the defenses of ratification and laches, relying on Bakos to support its decision to uphold the prenuptial agreement. Bakos is factually distinguishable because while the parties executed a prenuptial agreement the day before the wedding, they also executed a postnuptial agreement six years into the marriage. The issue before our court was thus whether the voidable prenuptial agreement could be ratified by the postnuptial agreement. Here, there is no such issue.

Ratification occurs when a party entitled to rescind a voidable contract fails to do so after the discovery of facts that warrant a rescission. Steinberg v. Bay Terrace Apartment Hotel, Inc., 375 So.2d 1089, 1092 (Fla. 3d DCA 1979). In general, “[ljaches is an omission to assert a right for an unreasonable [] length of time, under circumstances prejudicial to the adverse party.” Miami-Dade Cnty. v. Fernandez, 905 So.2d 213, 216 (Fla. 3d DCA 2005) (second alteration in original) (quoting Ticktin v. Kearin, 807 So.2d 659, 663 (Fla. 3d DCA 2001)).

The parties concede that no case in Florida, nor any case in any other jurisdiction, has held that the equitable defenses of ratification and laches apply to validate a voidable prenuptial agreement on the basis that the disadvantaged spouse did not take some form of legal action during the parties’ intact marriage to challenge the agreement. Other jurisdictions have declined to apply ratification and laches because it would be contrary to public policy to force a spouse who wanted to challenge the enforceability of a prenuptial agreement to do so prior to the dissolution of the marriage by death or divorce. See In re Estate of Hollett, 150 N.H. 39, 834 A.2d 348, 353 (2003) (declining to consider “the wife’s delay in challenging the agreement as substantive evidence of the agreement’s voluntariness or ratification”); In re Flannery’s Estate, 315 Pa. 576, 173 A. 303, 304 (1934) (holding that laches did not bar a wife from challenging the prenuptial agreement during marriage and noting that in litigation between spouses “presumptions or estoppels by lapse of time, ordinarily, do not affect the rights of the wife”); Baker v. Baker, 24 Tenn.App. 220, 142 S.W.2d 737, 748 (1940) (explaining that it would go against public policy to require a spouse to challenge a prenuptial agreement during marriage); Kellar v. Estate of Reliar, 172 Wash.App. 562, 291 P.3d 906, 918 (2012) (refusing to apply the doctrines of ratification and laches because “considering a wife’s delay in challenging a prenuptial agreement as evidence of ratification would penalize the wife for choosing not to disrupt her marriage”) review denied, 178 Wash.2d 1025, 312 P.3d 652 (2013).

We agree with the above jurisdictions and decline to apply the equitable defenses of ratification and laches to validate a prenuptial agreement based upon a spouse’s failure to seek revision, amendment, or to set aside a prenuptial agreement during the parties’ marriage.

The trial court fully considered the issue of alimony independent of its ruling concerning the validity of the prenuptial agreement. The record demonstrates that the trial court contemplated the issue of alimony in light of the statutory factors of section 61.08, and determined that the former wife was not entitled to alimony except as provided in the prenuptial agreement. Because we hold that the prenuptial agreement was invalid, the wife is not entitled to any alimony on remand. However, because we cannot determine the effect of the prenuptial agreement on equitable distribution, we remand for the trial court to reconsider the issue of equitable distribution absent the prenuptial agreement and to make specific findings thereon. Upon remand, the court shall consider the factors of section 61.075 including the valuation of the pawn business and whether the former wife is entitled to any interest therein. We affirm the final judgment of dissolution in all other respects.

Affirmed in part; reversed in part; remanded with directions.

VILLANTI and WALLACE, JJ., Concur.

      . We note that the attorney the wife consulted regarding the prenuptial agreement is not the same attorney who now represents her on appeal.


text:
    Gard MIDTVAAGE, Appellant, v. The PORCHES BAHAMAS, LTD., Appellee.
    No. 5D12-3598.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2013.

      John A. Morey, of Morey Law Firm, P.A., Orlando, for Appellant.
    Carla T. Reece of Archer Bay, P.A., Orlando, and Dorothy V. Maier of Dorothy V. Maier, P.A., Port Orange, for Appellee.
   PER CURIAM.

Gard Midtvaage (lender) timely appeals the final order entered by the trial court dismissing its action against The Porches Bahamas, Ltd. (borrower). We reverse.

Lender, a Florida resident, and borrower, a Bahamian corporation, executed an unsecured promissory note. Lender thereafter filed suit for breach of the terms of the note. The matter proceeded to trial, nonjury. At the close of lender’s case-in-chief, borrower moved for an involuntary dismissal of the lawsuit. Borrower argued that lender had “failed to present any evidence to show that the excise tax on the promissory note, required by Florida Statute 201.08, had been paid, rendering the note unenforceable.” The trial court granted borrower’s motion.

Lender filed a timely motion for rehearing arguing, inter alia, that pursuant to section 201.23 of the Florida Statutes (2011) (providing that foreign notes are exempt from excise taxes), no excise tax was due on the note at issue, and, accordingly, the trial court erred in dismissing the action. The trial court denied the motion, and then entered an order dismissing the action. This appeal followed.

Lender argues that, since section 201.23 renders the promissory note exempt from the payment of excise taxes, the trial court erred in denying its motion for a rehearing. We agree.

Pursuant to section 201.23, because the subject promissory note was executed by a foreign company, the nonpayment of excise taxes was irrelevant to the question of enforceability. The statute provides:

201.23 Foreign notes and other written obligations exempt.

(1) There shall be exempt from all excise taxes imposed by this chapter:
(a) All promissory notes, nonnegotiable notes, and other written obligations to pay money bearing date on or after July 1, 1977, if the makers thereof or the obligors thereunder, at the time of the making or execution thereof, are individuals residing outside the United States or business organizations or other persons located outside the United States.

§ 201.23(l)(a), Fla. Stat. (2011).

The instant note states that the borrower is “a company incorporated under the laws of The Commonwealth of the Bahamas.” Documents incorporated by reference in the note demonstrate that borrower maintains its principal office in the Bahamas. Accordingly, the subject promissory note is a foreign note that meets the criteria for exemption from excise taxes pursuant to section 201.23. As such, the trial court should have granted the motion for rehearing. See Olesh v. Greenberg, 978 So.2d 238 (Fla. 5th DCA 2008); Fernandes v. Boisvert, 659 So.2d 412 (Fla. 2nd DCA 1995).

Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

PALMER, ORFINGER and BERGER, JJ., concur.


text:
    Andrew F. GREGORY, Jr., Appellant, v. Nancy Ann GREGORY, Appellee.
    No. 5D13-1222.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2013.
    Theodore R. Doran and Carol A. Yoon, of Doran, Sims, Wolfe, <& Kundid, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The former husband, Andrew F. Gregory, Jr., appeals from a final order denying his request to terminate his alimony obligation to the former wife, Nancy Ann Gregory. We agree with the former husband that the final order is not founded on competent, substantial evidence supporting the former wife’s continued need for alimony, and reverse.

The final judgment, dissolving the parties’ sixteen-year marriage, was entered in 1988. At that time, the former wife was awarded $650 per month in permanent periodic alimony. Twenty-nine years later, in 2012, the former husband requested that the trial court reduce or terminate the alimony award, alleging, that while he had retired, substantially reducing his income, the former wife’s lifestyle had been significantly enhanced as she had received substantial inheritance funds from the estates of her deceased mother and daughter, and was residing with a cohabitant, enjoying a supportive relationship. As a result, the former husband maintained that the former wife did not have a continued need for alimony. Following an evidentiary hearing, the trial judge found that the former wife was living in a “supportive relationship,” and that she had inherited $30,000 from the daughter’s estate, which she then gifted to her son. Based solely on that inheritance, the trial court reduced the former husband’s alimony obligation to $450 per month.

A review of a trial court’s decision under section 61.14(l)(b), Florida Statutes (2012), is a mixed question of law and fact that requires a mixed standard of review. See Buxton v. Buxton, 963 So.2d 950, 953 (Fla. 2d DCA 2007). The trial court must make factual findings and determine whether those facts establish a “supportive relationship.” This determination requires an interpretation of the statute and an application of the law to the facts. Id. If the trial court concludes that a “supportive relationship” exists, it has the discretion to reduce or terminate the alimony obligation. Id. As a result, we review the trial court’s factual findings to determine whether they are supported by competent, substantial evidence, but the trial court’s interpretation and application of the law should be reviewed de novo. If the court decides that a supportive relationship exists, we review the court’s decision to reduce or terminate alimony for an abuse of discretion. See King v. King, 82 So.3d 1124,1129 (Fla. 2d DCA 2012); Bux-ton, 963 So.2d at 953.

Here, the court properly found the existence of a supportive relationship. At that point, the burden of proof of the continued need for alimony shifted to the former wife. See Baumann v. Baumann, 22 So.3d 719, 720-21 (Fla. 2d DCA 2009). But see French v. French, 4 So.3d 5, 6-7 (Fla. 4th DCA 2009). The former wife failed to satisfy that burden. The record lacks competent substantial evidence that the former wife still needs financial support from the former husband. The evidence clearly established that the former wife supports the cohabitant to a certain extent. The former husband is under no obligation to help support the former wife’s cohabitant. Further, the trial court failed to consider the cohabitant’s valuable, non-economic services to the former wife. Moreover, the trial court did not consider an additional $370,000 that the former wife inherited from her mother. These funds were used in part to enhance the former wife’s lifestyle from that enjoyed during the parties’ marriage, and to purchase a $44,000 recreational vehicle, which was titled jointly with the cohabitant. This, coupled with her ability to make substantial gifts ($30,000 to her son and a half interest in the $44,000 recreational vehicle to the cohabitant), demonstrates that the former wife no longer needs alimony.

For these reasons, we conclude that the final order lacks competent substantial evidence to support the former wife’s continued need for alimony. Therefore, we reverse and remand for the trial court to enter an order terminating the former husband’s alimony obligation.

REVERSED and REMANDED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Charles SOUTHERN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4026.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2013.
    Dane K. Chase, St. Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013).

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


text:
    Stanley GARRETT, Appellant, v. Danielle PRATT, Appellee.
    No. 5D13-3101.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2013.
    Stanley L. Garrett, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Stanley Garrett, an inmate in the Florida correctional system, appeals the trial court’s order denying his motion to modify or dissolve a domestic violence injunction. Because Garrett was denied an opportunity to appear telephonieally, we reverse for a new hearing.

After Garrett filed his motion to modify or dissolve the domestic violence injunction entered against him, he filed a motion, asking the trial court to allow him to appear telephonieally. Although the trial court never ruled on the motion, the Clerk’s notice of hearing noted Garrett would appear telephonieally. When Garrett failed to call in for the scheduled hearing, the trial court denied his motion.

An incarcerated party has a right to be heard in civil matters if the party has brought to the court’s attention his or her desire to appear personally or telephoni-cally. Johnson v. Johnson, 992 So.2d 399, 401 (Fla. 1st DCA 2008). Here, Garrett brought the matter to the court’s attention. By rule, the Department of Corrections requires institutional staff to place direct calls to the court when an inmate is required to participate in a telephone hearing. See Fla. Admin. Code R. 33-602.205(8)(b). That did not occur here. As a result, Garrett was denied the opportunity to appear.

For these reasons, we reverse the order and remand for further proceedings. In doing so, we express no opinion on the merit of Garrett’s motion.

REVERSED and REMANDED.

SAWAYA, ORFINGER and EVANDER, JJ., concur.


text:
    Robert Lee HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-564.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2013.
    Nancy A. Daniels, Public Defender, and Richelle M. Marsico, Assistant Public Defender, Tallahassee, for Appellant; Robert Lee Howard, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences. However, due to an apparent scrivener’s error, the written sentence is ambiguous as to the intended sentence structure. Given the oral pronouncement of concurrent twenty-year terms for the two counts of which Appellant was convicted, the court’s intent is clear from a review of the entire record. We, therefore, remand this case for correction of the written sentence to conform to the oral pronouncement. See Bryant v. State, 124 So.3d 256 (Fla. 1st DCA 2013). Appellant need not be present for the correction of this clerical error. Id.

AFFIRMED and REMANDED.

THOMAS, RAY, and MAKAR, JJ., concur.


text:
    Arzell DIGGS Jr., Appellant, v. T.E.W., on behalf of A.W., A Minor, Appellee.
    No. 1D13-4993.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2013.
    Kevin Alvarez of Anabelle Dias, P.A., Tallahassee, for Appellant.
    T.E.W., on behalf.of A.W., a minor, pro se, Appellee.
   PER CURIAM.

DISMISSED. This dismissal is without prejudice to appellant’s right to seek relief in the circuit court. Pompi v. City of Jacksonville, 872 So.2d 931, 933 (Fla. 1st DCA 2004).

LEWIS, C.J., BENTON and SWANSON, JJ., concur.


text:
    Jeffrey McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4727.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2013.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford and Gail E. Anderson, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ON CONCESSION OF ERROR

PER CURIAM.

The State’s concession of error is well-taken. See Jaimes v. State, 51 So.3d 445, 448M9 (Fla.2010). Appellant’s conviction and sentence as to Count 7 are therefore REVERSED, and this cause is REMANDED for a new trial as to Count 7. Appellant’s convictions and sentences on all other counts are otherwise affirmed.

CLARK, ROWE, and SWANSON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Terrail WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3025.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2013.
   NORTHCUTT, Judge.

Terrail Whitehead appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he claims he was not awarded all of the jail credit to which he was entitled. We reverse and remand for further proceedings, which should be conducted on an expedited basis.

Procedural History

In case number 06-25270-CF, Mr. Whitehead pleaded guilty to aggravated assault with a firearm, and the trial court sentenced him to five years in prison on June 3, 2010. The court awarded Mr. Whitehead 1297 days’ credit for jail time served before imposition of that sentence. In case number 06-26912-CF, Mr. Whitehead pleaded guilty to robbery, possession of cocaine, and resisting arrest without violence on June 3, 2010, and the trial court sentenced him to concurrent terms of eight years, five years, and time served, respectively. The court ordered that the sentences in case number 06-26912-CF run concurrently with Mr. Whitehead’s sentence in case number 06-25270-CF, and it awarded him 1096 days’ credit for jail time served.

In his motion filed pursuant to rule 3.800(a), Mr. Whitehead contends that he was entitled to 1316 days’ credit for time served in both cases because he was arrested on October 25, 2006, and was continuously held in jail until he was transferred to the Department of Corrections. Mr. Whitehead alleges that the criminal arrest affidavit, the case progress docket, and the judgments of conviction and sentence will demonstrate his entitlement to an additional 221 days’ credit for time served on case number 06-26912-CF.

The postconviction court summarily denied Mr. Whitehead’s motion. Relying on a Pinellas County Justice Information System custody and bond screen printout, which the court attached to its order, the postconviction court found that in case number 06-25270-CF, Mr. Whitehead was arrested on November 15, 2006, and held until he was sentenced on June 3, 2010, so he was properly awarded 1297 days’ credit for time served in county jail.

Again relying on a Pinellas County Justice Information System custody and bond screen printout that it attached to the order, the postconviction court found that in case number 06-26912-CF, Mr. Whitehead was arrested on December 6, 2006, but that he was not taken into custody until June 4, 2007. The court found that Mr. Whitehead was detained from June 4, 2007, until he was sentenced on June 3, 2010, so he was properly awarded 1096 days’ credit for jail time served. The post-conviction court also attached Mr. Whitehead’s judgments and sentences to its order, but the court did not attach the arrest affidavit or the case progress docket.

Analysis

The Pinellas County Justice Information System custody and bond screen printouts do not refute Mr. Whitehead’s claim that the criminal arrest affidavit, the case progress docket, and the judgments of conviction and sentence will demonstrate his entitlement to additional days’ credit for time served on case number 06-26912-CF. The screen printout for case number 06-26912-CF indicates that Mr. Whitehead was released on his own recognizance on December 6, 2006, before he was placed in maximum security detention on June 4, 2007. However, the screen printout does not show when Mr. Whitehead was arrested. If, for example, Mr. Whitehead was arrested and initially detained as a juvenile under a different case number, he would be entitled to credit for all of the time he was detained. See Bronk v. State, 25 So.3d 701, 703 (Fla. 2d DCA 2010) (“The entitlement to jail credit starts with the initial arrest, even if the accused is later arrested again while in jail due to the filing of the formal charges and even if the offense reflected at the time of arrest is not the offense ultimately alleged in the information.”).

Further, the screen printouts the post-conviction court attached are inconsistent, so they do not refute Mr. Whitehead’s claim. The screen printout for case number 06-25270-CF shows that Mr. Whitehead was released on his own recognizance on November 15, 2006, but it also shows that he was detained in the maximum security section of the jail the same day and remained there until he was sentenced on June 3, 2010. If Mr. Whitehead was detained at the jail between November 15, 2006, and June 3, 2010, he would be entitled to credit for time served in case number 06-26912-CF, as he could not have actually been released on his own recognizance between December 6, 2006, and June 4, 2007. See Gh’een v. State, 979 So.2d 395, 395-96 (Fla. 2d DCA 2008) (reversing summary denial of motion seeking additional jail credit where the documents attached to the postconviction court’s order did not show that the defendant was actually released on bond). Accordingly, we reverse and remand for further proceedings in accordance with this opinion. If the postconviction court again summarily denies Mr. Whitehead’s motion, it shall attach to its order the arrest affidavits and all relevant case progress dockets for case number 06-25270-CF and for case number 06-26912-CF. Because Mr. Whitehead is currently scheduled to be released from prison on July 22, 2014, the circuit court shall consider Mr. Whitehead’s motion on an expedited basis.

Reversed and remanded with instructions.

SILBERMAN and VTLLANTI, JJ„ Concur.


author: VILLANTI, Judge.

text:
    Amadou WANE, Appellant, v. U.S. BANK, NATIONAL ASSOCIATION, as Trustee for Greenpoint Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2007-AR2, Appellee.
    No. 2D13-3184.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2013.

      Amadou Wane, pro se.
    Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, Alabama, for Appellee.
   VILLANTI, Judge.

Amadou Wane seeks review of the nonfi-nal order that required his tenant to pay rents directly to U.S. Bank while foreclosure proceedings against Wane’s rental property are pending. We reject Wane’s contention that U.S. Bank had no standing to seek an assignment of rents without further discussion. But because, as argued by Wane, U.S. Bank failed to offer competent evidence to establish that it was entitled to an assignment of rents, we reverse and remand for further proceedings.

After filing foreclosure proceedings against Wane’s rental property, U.S. Bank filed a motion seeking the assignment of rents from Wane’s tenant based on paragraph H of a “1-4 Family Rider” which was attached to the mortgage. This paragraph provides in pertinent part:

H. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION. Borrower absolutely and unconditionally assigns and transfers to Lender all the rents and revenues (“Rents”) of the Property, regardless of to whom the Rents of the Property are payable. Borrower authorizes Lender or Lender’s agents to collect the Rents, and agrees that each tenant of the Property shall pay the Rents to Lender or Lender’s agents. However, Borrower shall receive the Rents until: (i) Lender has given Borrower notice of default pursuant to Section 22 of the Security Instrument, and (ii) Lender has given notice to the ten-antis) that the Rents are to be paid to Lender or Lender’s agents.

(Emphasis added.) In response to U.S. Bank’s motion, Wane argued that U.S. Bank had not proved that it had given him notice of default pursuant to Section 22 of the mortgage and thus it had not established that it was entitled to an assignment of rents under paragraph H of the Rider. U.S. Bank countered by pointing to a copy of a “default letter” attached as an exhibit to its motion for assignment of rents. However, this copy was not authenticated in any manner — it was simply stapled to U.S. Bank’s unsworn motion. Although Wane argued that this unauthenticated copy was legally insufficient to establish that U.S. Bank had actually provided the required notice, the trial court granted U.S. Bank’s motion and entered an order requiring Wane’s tenant to pay rents directly to U.S. Bank.

In this appeal, Wane again argues that U.S. Bank’s proof was legally insufficient to entitle it to receive an assignment of rents from his tenant. We agree. In Bryson v. Branch Banking & Trust Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011), this court held that default letters purportedly sent to the mortgagor by the bank were not self-authenticating and could not be considered by the court absent some form of authentication. We reached a similar result in DiSalvo v. SunTrust Mortgage, Inc., 115 So.3d 438, 439 (Fla. 2d DCA 2013). While both of those cases involved motions for summary judgment, in both cases this court stated that copies of letters that are not accompanied by an affidavit of a records custodian or other proper person attesting to their authenticity and correctness do not constitute competent evidence in foreclosure proceedings.

Admittedly here, the trial court was not addressing a motion for summary judgment. However, in seeking an assignment of rents otherwise payable to Wane, U.S. Bank was legally obligated to comply with the terms of the Rider and section 697.07, Florida Statutes (2012), which requires U.S. Bank to prove its entitlement to such an assignment. It complied with neither.

Section 697.07 is entitled “Assignment of rents,” and it “establish[es] procedures designed to give effect to the parties’ rent assignment agreement.” Or-mond Beach Assocs. Ltd. P’ship v. Citation Mortg., Ltd., 634 So.2d 1091, 1092 (Fla. 5th DCA 1994); see also Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 498 (Fla. 3d DCA 1994) (stating that “a mortgagor and mortgagee are free to contract for an assignment of rents, and enforcement of that assignment will be governed by [section 697.07]”). Section 697.07 draws a clear line between a motion seeking sequestration of rents into the court registry and a motion seeking an actual assignment of rents to the lender pending foreclosure. Compare § 697.07(4) (dealing with sequestration of rents into the court registry), with § 697.07(3) (dealing with the assignment and collection of rents by the lender). The former requires only a bare showing of a pending foreclosure action and an assignment of rents provision in the applicable mortgage, while the latter requires proof of a default and proof of a written demand for the rents. When such proof is lacking, an assignment of rents to the mortgagee constitutes an abuse of discretion. See, e.g., Whud Real Estate Ltd. P’ship v. Oak Grove, Ltd., 699 So.2d 842, 842-43 (Fla. 3d DCA 1997).

Had the trial court in this case ordered a sequestration of rents into the court registry, we would be unable to find an abuse of discretion. But the court did not order sequestration. Instead, it ordered an assignment of rents directly to U.S. Bank without any competent evidence that U.S. Bank had made either a written demand for the rents as required by section 697.07(3) or given written notice of default as required by paragraph H of the Rider. Simply put, the Bank offered no competent evidence that it had satisfied the requirements of either the statute or the Rider. In the absence of such evidence, the order granting an assignment of rents to U.S. Bank constituted an abuse of discretion.

Accordingly, we reverse the order granting the assignment of rents and remand for further proceedings. On remand, the trial court may either order sequestration of the rents, including the rents already received, into the court registry pursuant to section 697.07(4) or it may hold additional proceedings to give U.S. Bank an opportunity to prove that it is entitled to an assignment of rents under section 697.07(3) and paragraph H of the Rider.

Reversed and remanded for further proceedings.

SILBERMAN and MORRIS, JJ., Concur.


text:
    Vascoe BROWN, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-3033.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2013.
    Vascoe Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and David W. Grimes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c)(1).

THOMAS, RAY, and MAKAR, JJ., concur.