author: SILBERMAN, Judge.

text:
    CVS EGL FRUITVILLE SARASOTA FL, LLC and Holiday CVS, LLC, Appellants, v. Jim TODORA, as Property Appraiser for Sarasota County; Barbara Fordcoates, as Tax Collector for Sarasota County; and James A. Zingale, as Executive Director of the Department of Revenue, Appellees.
    No. 2D12-2966.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    James M. Spoonhour and S. Brendan Lynch of Lowndes, Drosdick, Doster, Kan-tor & Reed, P.A., Orlando, and Rodolfo Sorondo and llene L. Pabian of Holland & Knight LLP, Miami, for Appellants.
    Sherri L. Johnson of Johnson Legal of Florida, P.L., Sarasota, for Appellee Property Appraiser of Sarasota County.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Carrol Yvonne Cherry, Assistant Attorney General, Tallahassee, for Appellee Department of Revenue.
    No appearance for Appellee Tax Collector for Sarasota County.
   SILBERMAN, Judge.

This appeal arises out of a final judgment upholding the Sarasota County Property Appraiser’s 2006, 2007, and 2008 ad valorem tax assessments of ten properties leased by CVS EGL Fruitville Sarasota FL, LLC, and Holiday CVS, LLC (collectively “CVS”). The Property Appraiser’s assessments totaled approximately $97 million while CVS’s outside appraisals of the same properties totaled approximately $59 million. We reverse because the trial court erroneously employed the “any-reasonable-hypothesis” standard in evaluating the Property Appraiser’s assessments.

The proceedings below were initiated when CVS filed complaints in circuit court challenging each of the Property Appraiser’s three assessments. Among other things, CVS alleged that the assessments exceeded “just value” and resulted from the Property Appraiser’s use of improper valuation methodology. The complaints were consolidated, and the trial court ultimately entered a final judgment upholding the Property Appraiser’s assessment values.

On appeal, CVS argues that the trial court employed an erroneous legal standard in analyzing its challenge to the Property Appraiser’s tax assessments. This issue presents a question of law that is reviewed de novo. See Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 986 (Fla. 2d DCA 2011) (“The determination of the correct legal standard to apply is a question of law that we review de novo.”).

Section 194.301, Florida Statutes (2005), provides the framework for the resolution of ad valorem tax challenges in Florida. Under that statute, a property appraiser’s ad valorem assessment is initially presumed to be correct. The presumption is lost if the taxpayer proves by a preponderance of the evidence that the appraiser either (1) did not “consider properly” the criteria set forth in section 193.011, Florida Statutes (2005), or (2) arbitrarily used appraisal practices that are not generally applied. If the presumption of correctness is lost, the taxpayer must prove by a preponderance of the evidence that the assessment is “in excess of just value.” If the presumption of correctness remains, the taxpayer’s burden of proof changes to the clear and convincing evidence standard. § 194.301.

In the final judgment, the trial court found that the Property Appraiser had properly considered each of the eight criteria in section 193.011 and did not arbitrarily use appraisal practices that are not generally applied. The court determined that the presumption of correctness was not lost and concluded that CVS did not meet its consequent burden of proving by clear and convincing evidence that the assessment was in excess of just value. Although the trial court analyzed the issues within the framework of section 194.301, CVS asserts that the court applied the wrong legal standard by utilizing the common-law standard that section 194.301 was enacted to abrogate rather than the legal standard contained within the statute.

The resolution of this issue requires an examination of the development of the framework for the resolution of ad valorem tax challenges under the common-law standard and section 194.301. Under the common law, a taxpayer could overcome the property appraiser’s presumptively correct assessment by proof that the assessment “is not within the range of reasonable appraisals.” Schultz v. TM Fla.-Ohio Realty Ltd. P’ship, 577 So.2d 573, 576 (Fla.1991); Blake v. Xerox Corp., 447 So.2d 1348, 1350 (Fla.1984). Under this standard, the trial court would uphold the assessment as long as the assessment was “supported by any reasonable hypothesis of legality.” Schultz, 577 So.2d at 575; Blake, 447 So.2d at 1350.

In 1997, the Florida Legislature enacted section 194.301, specifying the taxpayer’s burden of proof in order to overcome the presumption of correctness applicable to the property appraiser’s tax assessment. See ch. 97-85, § 1, at 504, Laws of Fla. Section 194.301 also specified the taxpayer’s burden of proof in challenging the amount of the assessments, depending upon whether the property appraiser retained or lost the presumption of correctness. As with the 2005 statute applicable to this case, the 1997 statute provided that if the presumption of correctness were lost, the taxpayer had the burden to prove by a preponderance of the evidence that the challenged assessment was in excess of just value. If the property appraiser retained the presumption of correctness, then the taxpayer had the burden to prove by clear and convincing evidence that the challenged assessment was in excess of just value. And the legislature expressly rejected the “any-reasonable-hypothesis” standard by providing as follows: “In no case shall the taxpayer have the burden of proving that the property appraiser’s assessment is not supported by any reasonable hypothesis of a legal assessment.” Id.

Despite this legislative mandate, the “any-reasonable-hypothesis” standard continued to be applied in cases reviewing decisions on post-1997 ad valorem tax challenges. In one such case, this court described the framework for the resolution of ad valorem tax challenges as follows:

In arriving at just valuation, the property appraiser must consider the eight factors set forth in section 193.011, Florida Statutes (1997). Although the property appraiser must consider all of the factors, he may discard entirely any that are not probative of fair market value under the circumstances. The method of valuation and the weight to be given each factor is left to the appraiser’s discretion, and the decision will not be disturbed on review as long as each factor has been lawfully considered and the assessed value is within the range of reasonable appraisals. Because there are so many well-recognized approaches for arriving at an appraisal, the appraiser’s decision may be overturned only if there is no reasonable hypothesis to support it.

Wal-Mart Stores, Inc. v. Todora, 791 So.2d 29, 30 (Fla. 2d DCA 2001) (emphasis added) (citations omitted). And the supreme court thereafter approved this legal analysis from Todora thus espousing the “any-reasonable-hypothesis” standard. See Mazourek v. Wal-Mart Stores, Inc., 831 So.2d 85, 90-91 (Fla.2002).

In 2009, the Florida Legislature enacted 194.3015, Fla. Stat. (2009), to redress the courts’ continued application of the “any-reasonable-hypothesis” standard in reviewing challenges to the property appraiser’s assessments. See ch. 09-121, § 2, at 1528, Laws of Fla. Section 194.3015 provides as follows:

(1) It is the express intent of the Legislature that a taxpayer shall never have the burden of proving that the property appraiser’s assessment is not supported by any reasonable hypothesis of a legal assessment. All cases establishing the every-reasonable-hypothesis standard were expressly rejected by the Legislature on the adoption of chapter 97-85, Laws of Florida. It is the further intent of the Legislature that any cases published since 1997 citing the every-reasonable-hypothesis standard are expressly rejected to the extent that they are interpretative of legislative intent.
(2) This section is intended to clarify existing law and apply retroactively.

(Emphasis added.) Because the legislature rejected the application of “any cases published since 1997 citing the every-reasonable-hypothesis standard,” it follows that the legislature intended to supersede Todora and Mazourek. We must therefore give deference to the legislature and conclude that Todora and Mazourek are not controlling. See Regan v. ITT Indus. Credit Co., 469 So.2d 1387, 1390-91 (Fla. 1st DCA 1984) (concluding that it was not bound to follow a supreme court case based on legislation intended to supersede the case), approved, 487 So.2d 1047 (Fla.1986).

In the final judgment, the trial court seemingly followed the framework set forth in section 194.301 and ultimately concluded that the presumption of correctness was not rebutted and that CVS did not meet its consequent burden of proving by clear and convincing evidence that the assessment was in excess of just value. However, within this framework, the trial court also cited to Todora and Mazourek. The court discussed at length the evidence presented as to the Property Appraiser’s appraisal practices and the criteria contained in section 193.011, but observed that “as sensible as CVS’s position is on the issue, this court is bound to uphold the Property Appraiser’s valuation if there is any reasonable hypothesis to support it.” And the court concluded as follows:

In summary, the court finds defendants have properly considered the criteria identified in § 193.011, and that the appraiser’s assessed value of the ten properties is within the range of reasonable appraisals. Consequently, the statutory presumption of correctness has not been rebutted and plaintiffs’ evidence to the contrary does not meet the burden of being clear and convincing. The Property Appraiser’s just value determination for all three tax years stand [sic].

(Emphasis added.)

This language clearly reflects that the trial court applied the “any-reasonable-hypothesis” standard in both determining whether the presumption of correctness remained and whether CVS met its corresponding burden of proving that the assessment was in excess of just value. This was error because that standard has been abrogated by section 194.301 as clarified by the legislature in section 194.3015.

We therefore reverse and remand with directions for the trial court to re-evaluate the record evidence using only the legal standards set forth in section 194.301. In so doing, the court must determine whether the presumption of correctness is retained or lost. To make this determination, the court should analyze whether the Property Appraiser (1) failed to consider properly the section 193.011 criteria, or (2) arbitrarily used appraisal practices that are not generally applied. Then the court must determine whether CVS met its applicable burden of proving that the assessment is in excess of just value. If the presumption of correctness is lost, the applicable burden of proof is by a preponderance of the evidence. If the presumption of correctness remains, the applicable burden of proof is by clear and convincing evidence. At no point during the trial court’s application of any of these standards should it consider whether the assessment is within the range of reasonable appraisals or whether it is supported by any reasonable hypothesis of legality.

Reversed and remanded.

WALLACE and SLEET, JJ„ Concur.

      . Section 194.301 was amended in 2009 to change the burden of proof. See ch. 09-121, § 1, at 1527, Laws of Fla. However, this version of the statute has no application to the 2006, 2007, and 2008 assessments at issue in this case.

      . Section 193.011 specifies the following eight criteria that a property appraiser must consider in determining just value: present cash value, highest and best use, location, size, cost and replacement value of improvements, condition, income, and net proceeds of the sale of the property.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John J. STOCKER, Appellant, v. Anna T. STOCKER, Appellee.
    No. 2D12-4980.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Stacy L. Sherman of Stacy L. Sherman, P.A., Fort Myers, for Appellant.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers; and Brooke N. Martinez of The Pavese Law Firm, Fort Myers, for Appellee.
   PER CURIAM.

Because lack of personal jurisdiction in the domesticating state is not a ground to refuse enforcement of a foreign judgment, we affirm. See Hinchee v. Golden Oak Bank, 540 So.2d 262, 263 (Fla. 2d DCA 1989) (“It is well established that a foreign judgment may be challenged on grounds that the foreign court lacked jurisdiction over the person.” (emphasis added)); see also In re Estate of O’Keefe, 833 So.2d 157, 160 (Fla. 2d DCA 2002) (discussing grounds to challenge a foreign judgment).

KELLY, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Davide Forrest DeLAFÉ, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2472.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2013.
    Rehearing Denied Nov. 5, 2013.

      Davide Forrest DeLaFé, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is the second appeal arising from the denial of Appellant’s August 2010 post-conviction motion filed pursuant to Florida Criminal Procedure Rule 3.850. In the first appeal, we affirmed the denial of all but one of Appellant’s claims — that the trial court imposed an illegal upward departure sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We remanded the Apprendi/Blakely claim, and directed the postconviction court to conclusively show Appellant is not entitled to relief, conduct a harmless error analysis, or resentence Appellant. See DeLaFé v. State, 106 So.3d 483, 484 (Fla. 1st DCA 2013). On remand, the postconviction court determined that the sentencing court’s failure to submit the upward departure issue to the jury was harmless error, and accordingly, denied Appellant’s claim.

Where an Apprendi/Blakely error has occurred, the harmless error analysis asks, “whether the record demonstrates beyond a reasonable doubt that a rational jury would have found [the facts at issue].” Galindez v. State, 955 So.2d 517, 523 (Fla.2007). In sentencing Appellant for two counts of attempted sexual battery upon a child under 12 years of age, the trial court found the following aggravating factors justified an upward departure from the guidelines sentence: (1) The victim was especially vulnerable due to her age at the time of the offense — 5 years old; (2) The acts committed by Appellant were not an isolated incident; (3) Appellant had perpetrated similar acts on another child; (4) Appellant, as the child’s stepfather, stood in a position of trust and had authority over her. Upon review of the record portions the postconviction court attached to its order, we conclude that, had the jury considered the sentencing departure issue, it would have found two of the factors above — the victim was particularly vulnerable because of her age, and Appellant occupied and breached a position of trust and familial authority. Both factors are valid grounds for an upward departure sentence in this case. See Capers v. State, 678 So.2d 830, 883 (Fla.1996) (holding that victim’s vulnerability due to age is a valid basis for departure sentence for attempted capital sexual battery on person less than 12 years of age); Hawkins v. State, 522 So.2d 488, 490 (Fla. 1st DCA 1988) (stating that defendant’s breach of special trust from familial authority and victim’s particular vulnerability are acceptable grounds for departure in sexual battery cases). Because “the existence of any permissible departure reason requires that the departure sentence be upheld,” see Fleming v. State, 88 So.3d 288, 290 (Fla. 1st DCA 2012), we affirm the denial of Appellant’s Apprendi/Blakely claim.

AFFIRMED.

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

      . The applicable guidelines scoresheet yielded a sentence of 190 months in prison; the trial court imposed a sentence of 237 months.


text:
    Kennegrue E. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2888.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Rehearing Denied Nov. 7, 2013.
    Kennegrue E. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is DISMISSED as moot.

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


text:
    Jeffrey Edwin STARLING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3157.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Rehearing Denied Nov. 5, 2013.
    Jeffrey Edwin Starling, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2004) (holding that, generally, a criminal defendant cannot proceed pro se while represented by counsel).

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


author: WALLACE, Judge.

text:
    Jacquaile HILL, a/k/a Jacquiale M. Hill, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2788.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 2013.
    Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Jacquaile Hill appeals his judgment and sentence for attempted second-degree murder. Because the trial court gave an erroneous jury instruction on the lesser-included offense of attempted manslaughter by act, which is one step removed from attempted second-degree murder, we reverse Mr. Hill’s judgment and sentence and remand for a new trial.

I. THE FACTS AND PROCEDURAL BACKGROUND

The State charged Mr. Hill with attempted first-degree murder based upon Mr. Hill’s conduct in shooting Marquis Robinson with a firearm on July 18, 2007, after a street brawl. At trial, Mr. Hill contended that he had been misidentified as the shooter and that a third person actually shot Mr. Robinson. The State argued that the evidence did not support a misidentifieation defense and that the issue for the jury to determine was “whether this shooting was first degree — attempted first[-]degree murder or was this attempted second[-]degree murder.... [D]id [Mr. Hill] have time to reflect from what he was doing[?] Did he — it’s a shooting or killing after consciously deciding to do that.”

The trial court instructed the jury on the primary offense of attempted first-degree murder and the necessarily lesser-included offenses of attempted second-degree murder and attempted manslaughter by act. The trial court also instructed the jury on two category 2 lesser-included offenses: aggravated battery and battery. The jury found Mr. Hill guilty of the lesser-included offense of attempted second-degree murder. The trial court sentenced him to a mandatory minimum sentence of twenty-five years’ prison based upon the jury’s finding that during the offense Mr. Hill discharged ' a firearm causing great bodily harm. See § 775.087(2)(a)(3), Fla. Stat. (2007).

On appeal, Mr. Hill argues that the trial court committed fundamental error by giving the jury an erroneous instruction for attempted manslaughter by act, which required the jury to find that he intended to kill Mr. Robinson to convict Mr. Hill of that offense. Accordingly, Mr. Hill concludes that he is entitled to a new trial. We agree.

II. THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER WAS ERRONEOUS

In State v. Montgomery, 39 So.3d 252, 256 (Fla.2010), the Supreme Court of Florida held that “the crime of manslaughter by act does not require proof that the defendant intended to kill the victim.” The court further held that giving the then-standard jury instruction for manslaughter by act, which required such proof, constitutes fundamental error when a defendant is convicted of an offense one step removed from that offense. Id. at 256-59. Recently, in Williams v. State, the court extended its rationale in Montgomery to conclude “that giving the standard jury instruction on attempted manslaughter by act — which also requires the jury to find the defendant committed an act intended to cause death — similarly constitutes fundamental error where the defendant is convicted of an offense not more than one step removed from attempted manslaughter.” Williams v. State, 123 So.3d 23, 2013 WL 535449 (Fla. Feb. 14, 2013) (emphasis added); see also Mueller v. State, 100 So.3d 47, 48-49 (Fla. 2d DCA 2011) (holding same); Houston v. State, 87 So.3d 1, 2 (Fla.-2d DCA) (holding same), review dismissed, 73 So.3d 760 (Fla.2011).

Here, the trial court’s instruction on attempted manslaughter by act told the jury that the State had to prove beyond a reasonable doubt that Mr. Hill “committed- an act ... which was intended to cause the death of Marquis Robinson.” This instruction was erroneous because it included as an element of the offense that Mr. Hill “intended to cause the death of [Mr.] Robinson.” See Williams, 123 So.3d 23 at 25-26.

Defense counsel did not object to the instruction in the trial court. Thus, to be entitled to relief, Mr. Hill must demonstrate that giving the erroneous instruction constituted fundamental error. See id. at S101. Because attempted manslaughter by act is only one step removed from attempted second-degree murder — the crime for which Mr. Hill was convicted— Williams apparently compels the conclusion that giving the erroneous instruction during Mr. Hill’s trial constituted fundamental error. See State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978) (“[T]he failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible.”). However, the State argues that because the trial court instructed the jury on “multiple applicable lesser included offenses,” giving the erroneous instruction for attempted manslaughter by act did not constitute fundamental error.

The State points out that the trial- court instructed the jury in Mr. Hill’s case on the lesser-included offenses of attempted second-degree murder, attempted manslaughter by act, aggravated battery, and battery. The State argues that “the jury was provided with 4 viable lesser included offenses besides the charged attempted first degree murder. Even removing attempted ... manslaughter [by act] from the mix, the jury still had 3 applicable lesser included offenses with proper jury instructions.” Accordingly, the State argues, there was no fundamental error because the jury had the option of picking from multiple lesser-included crimes and had options other than attempted second-degree murder.

The State argues by analogy to a line of cases holding that when a trial court gives an erroneous manslaughter-by-act instruction as a lesser-included offense, no fundamental error occurs when the trial court also gives an instruction on manslaughter by culpable negligence and the defendant is convicted of second-degree murder. The rationale of these decisions is that the jury had the option of convicting the defendant of manslaughter by culpable negligence under a proper instruction that did not include intent to kill as an element of the offense. Thus giving the erroneous instruction on manslaughter by act did not constitute fundamental error because the jury had the option of convicting the defendant of a lesser-included offense that was one step removed from second-degree murder. See Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010); Nieves v. State, 22 So.3d 691 (Fla. 2d DCA 2009); Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010); see also Guerra v. State, 44 So.3d 226 (Fla. 3d DCA 2010) (following Salonko); Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010) (following Salonko).

III. THE STATE’S ARGUMENT

In a per curiam opinion in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011), quashed, 109 So.3d 735 (Fla.2013), this court questioned the reasoning in the line of cases relied upon by the State, including Barros-Dias, Nieves, and Salonko. We noted that these decisions conclude that because the jury received an instruction on manslaughter by culpable negligence, the jury was not “directed” by the erroneous instruction on manslaughter by act to find the defendant guilty of a greater offense and thus no fundamental error occurred as in Montgomery. In Haygood, we stated as follows:

Arguably, the evidence presented at trial is inconsistent with a theory of manslaughter by culpable negligence.... Although the evidence unquestionably supports the jury’s verdict finding [that] Mr. Haygood committed second-degree murder, it is impossible to speculate what the jury would have found had it been properly instructed that manslaughter by act does not require the intent to kill. 'In this regard, giving the flawed manslaughter by act instruction appears to run afoul of principles which the supreme court has articulated in Pena [v. State], 901 So.2d [781,] 787 [ (Fla.2005) ], and Montgomery, 39 So.3d at 257-59.

Id. at 1037 (emphasis added). However, based on this court’s precedent in Barros-Dias and Nieves, we affirmed Mr. Hay-good’s conviction and sentence. Id. Judge Altenbernd specially concurred and expanded on the majority’s comments as follows:

In this context, I do not believe that the fundamental error identified in Montgomery is rendered harmless by the instruction on manslaughter by culpable negligence.... I simply fail to see the logic by which a fundamental error of this kind becomes harmless merely because a jury receives an alternative instruction that has little or no application to the evidence presented at trial. I am also not convinced that “pardon power” analysis is the best approach to this particular problem. I recognize that this panel lacks the power to reverse and remand for a new trial under existing precedent, but I believe the case law needs a tweaking to permit a new trial in this type of case in order to fully comply with the supreme court’s holding in Montgomery.

Id. at 1038 (citation omitted). Ultimately, the Haygood court certified a question of great public importance to the Supreme Court of Florida as follows:

IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN A CASE WHERE THE EVIDENCE DOES NOT SUPPORT A THEORY OF CULPABLE NEGLIGENCE, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY GIVING A FLAWED MANSLAUGHTER BY ACT INSTRUCTION WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER BY CULPABLE NEGLIGENCE?

Id.; see also Pierre-Louis v. State, 98 So.3d 126 (Fla. 2d DCA 2012) (following Haygood and certifying the foregoing question to the supreme court).

Recently, the Supreme Court of Florida took up the question certified in Haygood, which it rephrased as follows:

IF A JURY RETURNS A VERDICT FINDING A DEFENDANT GUILTY OF SECOND-DEGREE MURDER, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY GIVING AN ERRONEOUS MANSLAUGHTER BY ACT INSTRUCTION WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER BY CULPABLE NEGLIGENCE AND THE EVIDENCE SUPPORTS ONLY A THEORY OF MANSLAUGHTER BY ACT?

109 So.3d 735, 736 (Fla.2013).

After reviewing its decision in Montgomery, the supreme court answered the certified question in the affirmative and quashed our affirmance of Mr. Haygood’s conviction and sentence. In so ruling, the court stated as follows:

Based on our decision in Montgomery, and the principles underlying that decision, we conclude that giving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of second-degree murder and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.

Id. at 741 (emphasis added). In reaching this conclusion, the court deemed it significant that there was no evidence that the victim’s death in the case before it resulted from culpable negligence, thus rendering second-degree murder as “the only offense realistically available to the jury under the evidence presented ... and the instructions given.” Id. at 742.

The majority in Haygood addressed the dissent’s contention that the court’s decision in Montgomery and its decision in the case before it were based on the jury pardon doctrine. The majority also addressed the dissent’s suggestion that “the finding of fundamental error in both cases is completely divorced from the question of whether any evidence would have supported a conviction of the lesser included offense of manslaughter.” Id. The majority explained as follows:

This decision is not based on the jury pardon doctrine and is not hinged on the right of the jury to issue a jury pardon despite the evidence. This decision is firmly founded on the longstanding principle that a defendant is entitled to have the jury correctly instructed on the crime charged and the lesser included offenses. As we have explained, where the erroneous instruction pertains to an element that is material to the jury’s deliberation and is in dispute, fundamental error occurs, as our precedent indicates, if that offense is one step removed from the crime for which the defendant is convicted. In this case, the erroneously instructed element was placed in dispute by the evidence; thus there was a basis on which the jury could find that the lesser included offense was proven.

Id. (emphasis added). The court further commented as follows:

[I]t is the province of the jury to find the facts supported by the evidence and, based on proper instruction, apply those facts to the statutory elements required for conviction. The error in the manslaughter jury instruction prevented, the jury from being able to choose the true verdict in this case — a verdict based on the jury’s application of its fair assessment of the facts concerning Haygood’s intent to the proper elements of the offense as set forth in the manslaughter statute.
The dissent appears to be based on the assumption that the only justification for instructing the jury on manslaughter would be to provide an opportunity for a jury pardon. However, this puts the cart before the horse. The reason for properly instructing the jury on manslaughter is to enable the jury to determine what degree of crime, if any, is proven. The dissent also concludes that the evidence in this case proved only second-degree murder and, thus, the jury could not possibly have found manslaughter without aid of the jury pardon. That conclusion is unjustified. It is up to the jury to hear the evidence, find the facts, and apply the law to reach a proper and fair verdict. That process was short-circuited in this case by the faulty instruction.
The jury’s verdict of second-degree murder is proof that it necessarily found Haygood lacked intent to kill. But, because of the faulty instruction on manslaughter, the jury was deprived of the ability to decide whether Haygood’s lack of intent to kill, when considered with all the other evidence, fit within the elements of the offense of manslaughter. Based on the evidence presented, the only nonintentional homicide offense remaining for the jury’s consideration in this case was second-degree murder. The result of incorrectly instructing on a necessarily lesser included offense, or even jettisoning the requirement of instruction on necessarily lesser included offenses as the dissent suggests, is that the jury is deprived of all the tools it needs to reach a proper verdict in the case before it.

Id. at 743 (emphasis added).

IV. UNDER HAYGOOD, ERROR NOT CURED

During Mr. Hill’s trial, the prosecutor argued to the jury that “[t]he real question here is [sic] was it [attempted] first[-] or seeond[-]” degree murder, the issue being whether Mr. Hill formed a premeditated intent to kill. Although the prosecutor argued that the facts supported a conviction for first-degree murder, he implicitly acknowledged that the jury could find a lack of premeditation. Thus, even though the defense argued that Mr. Hill had been misidentified as the shooter, the State placed Mr. Hill’s intent at the time of the shooting at issue. Although the prosecutor conceded that the evidence would support a conviction for aggravated battery or battery, he argued to the jury that the evidence supported a verdict for a greater offense.

Accordingly, Mr. Hill’s intent, as well as the level of offense committed, was “material to the jury’s deliberation and [was] in dispute.” See Haygood, 109 So.3d at 742. And because the trial court improperly instructed the jury that attempted manslaughter by act requires the intent to kill, the only homicide offense not requiring a finding of intent to kill remaining for the jury’s consideration was attempted second-degree murder. The other lesser-included crimes on which the jury was instructed — aggravated battery and battery, which are category 2 lesser-included offenses — required proof of completely different elements than attempted manslaughter by act and were nonhomicide offenses. Mr. Hill was entitled to a proper instruction on attempted manslaughter by act “to enable the jury to determine what degree of crime ... [was] proven.” Id. at 743. Although the evidence was sufficient to sustain the jury’s verdict for attempted second-degree murder, “the jury was deprived of the ability to decide whether [Mr. Hill’s] lack of intent to kill, when considered with all the other evidence, fit within the elements of the offense of [attempted] manslaughter.” Id. Accordingly, the trial court fundamentally erred in this case when it improperly instructed the jury on attempted manslaughter by act, which is one step removed from attempted second-degree murder, the crime for which Mr. Hill was convicted. As a result, Mr. Hill is entitled to a new trial at which the jury must be properly instructed.

V. CONCLUSION

For these reasons, we reverse Mr. Hill’s judgment and sentence and remand for a new trial for attempted second-degree murder.

Reversed and remanded.

SILBERMAN and BLACK, JJ, Concur.

      . Mr. Hill raises additional arguments on appeal concerning events at trial and his sentence. Based upon our decision to reverse Mr. Hill’s conviction and sentence and to remand for a new trial because of the erroneous attempted manslaughter instruction, we do not reach those issues in this opinion.

      . We note that Mr. Hill’s trial occurred in March 2009: before the supreme court issued its opinions in Montgomery and Williams.

      . We note that in Mueller and Williams, the trial court had also instructed the jury on other category 2 lesser-included offenses and that it was held on appeal that the giving of an erroneous instruction for attempted manslaughter by act constituted fundamental error. Mueller, 100 So.3d at 48 (jury instructed on attempted first-degree murder, attempted second-degree murder, attempted manslaughter by act, aggravated battery, and battery); Williams v. State, 40 So.3d 72, 73 (Fla. 4th DCA 2010), quashed, 123 So.3d 23 (jury instructed on attempted first-degree murder, attempted second-degree murder, attempted manslaughter by act, and aggravated battery). However, Mueller and Williams do not directly address the State's argument on appeal in this case.

      .Florida does not recognize the crime of attempted manslaughter by culpable negligence, and thus that was not a viable lesser-included offense in this case. Williams, 123 So.3d at 27.


text:
    CRICKET PROPERTIES, LLC, a Florida limited liability company, Appellant, v. NASSAU POINTE AT HERITAGE ISLES HOMEOWNERS ASSOCIATION, INC., Regions Bank, and Suntrust Bank, Appellees.
    No. 2D12-6194.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 2013.

      Henry W. Hicks and Adam J. Knight of Henry W. Hicks, P.A., for Appellant.
    Daniel L. Saxe of Saady & Saxe, P.A., Lutz, for Appellee Nassau Pointe at Heritage Isles Homeowners Association, Inc.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

Cricket Properties, LLC, seeks review of the final judgment in its action to quiet title to real property it acquired by purchase of a tax deed. The final judgment quiets title as to Regions Bank and Sun-trust Bank but does not quiet title as to any lien Nassau Pointe at Heritage Isles Homeowners Association may have had for unpaid assessments. We reverse because, under sections 197.552 and 197.573(2), Florida Statutes (2011), any lien for unpaid assessments did not survive the issuance of the tax deed.

In January 2012, Cricket commenced the quiet title action by filing a verified complaint. The two banks failed to answer, and the clerk entered defaults against them. But Nassau filed an answer and raised as its third affirmative defense that Cricket was liable for “all unpaid assessments that came due up to the time of transfer of title” under section 720.3085(2)(b), Florida Statutes (2011). Cricket filed a motion to strike this affirmative defense in which it argued that section 720.3085(2)(b) was inapplicable and that, under section 197.573(2), tax deed purchasers acquire property free and clear of liens for assessments. The trial court denied the motion.

Cricket subsequently filed a second amended motion for summary judgment asserting it was entitled to summary judgment quieting title against Nassau and the two banks. In response to Nassau’s third affirmative defense, Cricket reasserted its argument that it acquired the property free and clear of any liens for unpaid assessments by virtue of section 197.573(2). The issue before the trial court on Nassau’s third affirmative defense was whether section 720.3085(2)(b) or section 197.573(2) controlled. The court ultimately concluded that section 720.3085(2)(b) supersedes the provision in section 197.573(2).

The court thereafter entered a final judgment quieting title in Cricket’s favor as to the banks’ claims. But the judgment does not quiet title as to any lien Nassau may have had for unpaid assessments accrued prior to the tax deed sale. Instead, the judgment states that those claims survive the tax deed sale “without prejudice to any affirmative defense that [Cricket] may wish to raise at that time.” The judgment also concluded the lawsuit, noting that Nassau’s pleadings did “not put before the Court the issue of whether any association assessments were actually owed to [Nassau] at the time of the tax deed sale.”

On appeal, Cricket argues that the trial court erred in ruling that section 720.3085(2)(b) supersedes the provision in section 197.573(2) and therefore controls the issue of whether any lien for assessments survives the issuance of the tax deed. This matter of statutory interpretation presents a question of law subject to de novo review. GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007).

Chapter 197 governs the collection of ad valorem taxes and provides that the government shall have a first lien position on all real property for payment of such taxes. See § 197.122(1). To collect unpaid taxes, the legislature devised a statutory scheme providing for a tax deed sale of the property at a public auction with the proceeds to be first applied to the outstanding taxes and costs of the sale. See §§ 197.542.582(1).

Section 197.552 addresses the limitation on the survival of rights, interests, restrictions, and other covenants in connection with a tax deed sale and provides, in pertinent part, as follows:

Except as specifically provided in this chapter, no right, interest, restriction, or other covenant shall survive the issuance of a tax deed, except that a lien of record held by a municipal or county governmental unit, special district, or community development district, when such lien is not satisfied as of the disbursement of proceeds of sale under the provisions of s. 197.582, shall survive the issuance of a tax deed.

(Emphasis added.)

Section 197.573 is the provision of chapter 197 that specifically describes the restrictions and covenants that survive a tax deed and those that do not. This section provides, in pertinent part, as follows:

(1) When a deed in the chain of title contains restrictions and covenants running with the land, as hereinafter defined and limited, the restrictions and covenants shall survive and be enforceable after the issuance of a tax deed or master’s deed, or a clerk’s certificate of title upon foreclosure of a tax deed, tax certificate, or tax lien, to the same extent that it would be enforceable against a voluntary grantee of the owner of the title immediately before the delivery of the tax deed, master’s deed, or clerk’s certificate of title.
(2) This section shall apply to the usual restrictions and covenants limiting the use of property; the type, character and location of building; covenants against nuisances and what the former parties deemed to be undesirable conditions, in, upon, and about the property; and other similar restrictions and covenants; but this section shall not protect covenants creating any debt or lien against or upon the property, except one providing for satisfaction or survival of a lien of record held by a municipal or county governmental unit, or requiring the grantee to expend money for any purpose, except one that may require that the premises be kept in a sanitary or sightly condition or one to abate nuisances or undesirable conditions.

§ 197.573 (emphasis added). Thus, under sections 197.552 and 197.573(2), neither covenants governing assessments nor liens for unpaid assessments survive the issuance of a tax deed. See Sugarmill Wood Oaks Vill. Ass’n v. Wires, 766 So.2d 487, 489 (Fla. 5th DCA 2000). It is this statutory scheme on which Cricket relies to argue that it acquired the property free of any liens Nassau may have had for unpaid assessments.

Chapter 720, on which Nassau relies, governs the procedures for the operation of homeowners associations. See § 720.302(1). Section 720.312, which was enacted in 1995, provides for the survival of all restrictions and covenants in connection with a tax deed sale as follows:

All provisions of a declaration of covenants relating to a parcel that has been sold for taxes or special assessments survive and are enforceable after the issuance of a tax deed or master’s deed, or upon the foreclosure of an assessment, a certificate of lien, a tax deed, tax certificate, or tax lien, to the same extent that they would be enforceable against a voluntary grantee of title to the parcel immediately before the delivery of the tax deed or master’s deed or immediately before the foreclosure.

(Emphasis added.) Section 720.312 acts as a “safeguard” for covenants governing assessments which would otherwise have been extinguished under section 197.573(2) by the issuance of a tax deed. Sugarmill, 766 So.2d at 489 (construing the prior version of section 720.312, which was section 617.312, and noting that the statute preserved the power of homeowners associations to assess liens against property “purchased pursuant to a tax deed, in futuro”). However, section 720.312 omits any mention of hens and therefore does not safeguard liens for unpaid assessments from being extinguished under section 197.573(2) by the issuance of a tax deed. See id.

Section 720.3085(1), which was enacted in 2007, provides that associations have a lien on property to secure payment of assessments if provided for in the governing documents. Section 720.3085(2) addresses the liability of a parcel owner for assessments as follows: ■

(a)- A parcel owner, regardless of how his or her title to property has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments that come due while he or she is the parcel owner. The parcel owner’s liability for assessments may not be avoided by waiver or suspension of the use or enjoyment of any common area or by abandonment of the parcel upon which the assessments are made.
(b) A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments that came due up to the time of transfer of title. This liability is without prejudice to any right the present parcel owner may have to recover any amounts paid by the present owner from the previous owner.

(Emphasis added.) Consistent with section 720.312, section 720.3085(2)(a) imposes liability for future assessments on a new parcel owner. And section 720.3085(2)(b) imposes liability for unpaid assessments that were due at the time title was transferred. The primary question before the trial court was whether subsection (2)(b) acts as a “safeguard” for liens for unpaid assessments which would otherwise have been extinguished under section 197.573(2) by the issuance of a tax deed. The resolution of that question turns in large part on the related question of whether acquisition of property by a tax deed is a “transfer of title.”

The trial court answered the primary question in the affirmative and implicitly answered the related question in the affirmative. The court construed section 720.3085(2)(b) as providing that liens for unpaid assessments survive the' issuance of a tax deed. The court concluded that section 197.573(2) was superseded by section 720.3085(2)(b) because section 720.3085(2)(b) was enacted later in time. We find these conclusions to be inconsistent with the rules of statutory construction.

When construing a statute, the polestar that guides a court is the legislature’s intent. Larimore v. State, 2 So.3d 101, 106 (Fla.2008). To determine legislative intent, a court must first look to the plain language of the statute. Additionally, a court should interpret a statute so as to give effect to every provision therein and to harmonize all of its parts. And a court must read related statutory provisions “ ‘together to achieve a consistent whole’ ” so as to “ ‘give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” Id. (quoting Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007)).

The plain language of section 720.3085(2)(b) provides that new parcel owners are jointly and severally liable with prior owners “for all unpaid assessments that came due up to the time of transfer of title.” The intent of this statute is obviously to impose liability for previously accrued assessments on a new parcel owner who acquires property by transfer of title. As with section 720.312, section 720.3085(2)(b) omits any mention of the survival of liens and therefore does not safeguard liens for unpaid assessments from being extinguished under section 197.573(2) by the issuance of a tax deed. See Sugarmill, 766 So.2d at 489.

The plain language of section 720.3085(2)(b) imposes liability in relation to property acquired by “transfer of title.” And it is well-settled that a tax deed does not represent a transfer of title but constitutes the commencement of a “new, original and paramount” title. Blume v. Giles, 143 Fla. 615, 197 So. 344, 346 (1940); see also Dean v. Kane, 106 Fla. 814, 143 So. 656, 657 (1932) (holding that a tax title “creates in the purchaser a new and original title entirely disconnected with that of the former owner”).

The legislature acknowledged this distinction by using contrasting language defining parcel owners in subsections (2)(a) and (b) of section 720.3085. Subsection 2(a), which addresses the obligation for assessments accruing after title has been acquired, applies to a parcel owner “regardless of how his or her title to property has been acquired.” However, this language is omitted frofn subsection (2)(b), which addresses the obligation for assessments accruing before a new parcel owner acquires property by transfer of title. This omission calls for the application of the rule of statutory construction that by mentioning one thing the legislature intended to exclude the other, or “expressio uhius est exclusio alteráis.” See Thayer v. State, 335 So.2d 815, 817 (Fla.1976). That is, by failing to include the phrase “regardless of how his or her title to property is acquired” in subsection (2)(b), the legislature intended to exclude it. Thus, subsection (2)(b) should not be construed as applying to a parcel owner “regardless of how his or her title to property is acquired,” but to a parcel owner who has acquired title only by certain designated means; i.e., transfer. And acquisition of title by tax deed does not represent a transfer of title. See Blume, 197 So. at 346.

Accordingly, the trial court erred in determining that section 720.3085(2)(b) provides that liens for unpaid assessments survive the issuance of a tax deed. Furthermore, the trial court erred in concluding that section 720.3085(2)(b) supersedes sections 197.552 and 197.573(2). First of all, these related statutory provisions can be harmonized so that all three are given effect. Under sections 197.552 and 197.573(2), liens for unpaid homeowners assessments do not survive the issuance of a tax deed and are extinguished. Section 720.3085(2)(b) does not save such liens from extinguishment when parcel owners acquire title by tax deed. Instead, parcel owners who acquire title by transfer, rather than by tax deed, remain liable for unpaid assessments.

Second, even if the statutes were in conflict, sections 197.552 and 197.573(2) control because they are the more specific statutes. It is well settled that a more specific statute covering a particular subject is controlling over one covering the same subject in general terms. Mendenhall v. State, 48 So.3d 740, 748 (Fla.2010). Two facially conflicting statutes can therefore be harmonized where one statute “addresses the precise factual setting under consideration.” Palm Harbor Special Fire Control Dist. v. Kelly, 500 So.2d 1382, 1385 (Fla. 2d DCA), affirmed, 516 So.2d 249 (Fla.1987).

Section 720.3085(1) addresses the hen rights of associations and the effective dates of such liens. Section 720.3085(2)(a) addresses the parcel owner’s liability for assessments that come due during his or her ownership, and section 720.3085(2)(b) addresses a parcel owner’s joint and several liability for unpaid assessments that came due up to the time that title is transferred. But these sections do not address whether unpaid assessments survive the issuance of a tax deed in the first place. Instead, sections 197.552 and 197.573(2) specifically address the survival or extin-guishment of liens and encumbrances after issuance of a tax deed. This is the precise factual setting the trial court was required to consider. Sections 197.552 and 197.573(2) are therefore the more specific statutes as to the key issue, and any conflict must be resolved in their favor.

In summary, the trial court erred in concluding that section 720.3085(2)(b) provides that liens for unpaid assessments survive the issuance of a tax deed. And the court erred in concluding that section 720.3085(2)(b) supersedes the provisions in sections 197.552 and 197.573(2). Under sections 197.552 and 197.573(2), any lien Nassau may have had for unpaid homeowners association assessments did not survive the issuance of the tax deed. Accordingly, the trial court erred in refusing to quiet title as to Nassau.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ„ Concur.

      . Nassau did not file a counterclaim seeking to recover a money judgment for these unpaid assessments. Nor did Nassau file any type of affidavit or other evidence specifying from what date it alleged the unpaid assessments were owed.

      . See ch. 95-274, § 62, at 2553, Laws of Fla. (enacting section 617.312, which was subsequently renumbered as section 720.312 by ch.2000-258, § 51, at 2587, Laws of Fla.).

      . See ch.2007-183, § 1, at 1603, Laws of Fla.

      . We do not reach the viability of any claim Nassau might have for a money judgment for the unpaid assessments. Nassau did not file a counterclaim seeking a money judgment in this case, and the trial court noted it did not reach the issue of "whether any association assessments were actually owed.”


text:
    Cynthia Lee BIGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6168.
    District Court of Appeal of Florida, First District.
    Sept. 24, 2013.
    Rehearing Denied Nov. 5, 2013.
    Cynthia L. Biggs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: SILBERMAN, Judge. ALTENBERND, Judge,

text:
    Deborah E. FOCHT, Appellant, v. WELLS FARGO BANK, N.A., Successor by Merger to Wells Fargo Bank Minnesota, National Association, as Trustee, In Trust for the Holders of Structured Asset Securities Corporation—Amortizing Residential Collateral Trust Mortgage Pass Through Certificates, Series 2002-BC10, Appellee.
    Nos. 2D11-4511, 2D11-4980.
    District Court of Appeal of Florida, Second District.
    Sept. 25, 2013.
    Rehearing Denied Nov. 1, 2013.

      Deborah E. Focht, pro se.
    Jeffrey S. Lapin of Lapin & Leichtling, LLP, Coral Gables, and Ronnie H. Bitman of Powell & Pearson, LLP, Winter Park, for Appellee.
   SILBERMAN, Judge.

In case number 2D11-4511, Deborah E. Focht seeks re-view of the final summary judgment of foreclosure entered in favor of Wells Fargo-Bank, N.A. In case number 2D11-4980, -Focht seeks review of the trial court’s subsequent orders denying her motion to stay and/or cancel the foreclosure sale and striking her notice of lis pendens. We reverse the final judgment of foreclosure because a genuine issue of material fact exists regarding Wells Fargo’s standing to enforce the note and mortgage. Because the foreclosure sale has already taken place, we dismiss the appeal in case number 2D11-4980 as moot.

In October 2002, Focht executed an adjustable rate note that was secured by a mortgage on her property in Nokomis, Florida. The original lender was BNC Mortgage, Inc., but the loan was later transferred into a trust for which Wells Fargo is the trustee. Wells Fargo filed a foreclosure complaint in January 2008. The complaint included a count to reestablish a lost note, but Wells Fargo produced and filed the original note in July 2008.

Wells Fargo subsequently filed a motion for summary judgment, and Focht filed a cross-motion for summary judgment based on numerous affirmative defenses which included Wells Fargo’s lack of standing. At the hearing on the motions, Wells Fargo dismissed its. lost note claim. Wells Fargo asserted that it had standing by virtue of an assignment of the note and mortgage dated September 2008, which was several months after the complaint was filed. Wells Fargo alternatively asserted that it had standing as the holder of the original note endorsed in blank. In opposition to Focht’s cross-motion for summary judgment, counsel for Wells Fargo addressed Focht’s affirmative defenses and argued that each was either factually or legally insufficient.

The trial court granted Wells Fargo’s motion for summary judgment, denied Focht’s cross-motion for summary judgment, and entered a final judgment of foreclosure. Focht filed a notice of appeal of the final judgment and a motion to stay the foreclosure sale pending appeal and a notice of lis pendens. The trial court denied the motion to stay and granted Wells Fargo’s motion to strike the notice of lis pendens. Focht then filed a notice of appeal of those orders. The foreclosure sale took place in September 2011, and Wells Fargo was the successful bidder.

Focht makes several arguments on appeal. We reverse the final judgment in case number 2D11-4511 based on the existence of a genuine issue of material fact regarding Wells Fargo’s standing to enforce the note and mortgage at the time it filed the complaint. We reject the remainder of Focht’s arguments in that appeal without further discussion. And we dismiss the appeal in case number 2D11-4980 as moot because the foreclosure sale has already taken place.

A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). But standing must be established as of the time of filing the foreclosure complaint. Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acq. Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010); McLean, 79 So.3d at 173. Thus, Wells Fargo’s submission of a postfiling assignment of the note and mortgage does not establish that it had standing when it filed the lawsuit. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251, 253 (Fla. 2d DCA 2012); McLean, 79 So.3d at 173.

Wells Fargo alternatively argues that it established standing by submitting the original note endorsed in blank. See Cutler v. U.S. Bank Nat’l Ass’n, 109 So.3d 224, 225-26 (Fla. 2d DCA 2012); Everhome Mortg. Co. v. Janssen, 100 So.3d 1239, 1240 (Fla. 2d DCA 2012); Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285, 1288 (Fla. 5th DCA 2013). As with the assignment, however, Wells Fargo did not submit the original note until several months after it had filed the complaint. To establish standing as the holder of a note endorsed in blank, a party must be in possession of the original note. See § 671.201(21)(a), Fla. Stat. (2007) (defining “holder” as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession”); Everhome, 100 So.3d at 1240; Green, 109 So.3d at 1288. Thus, Wells Fargo was required to submit evidence that it was in possession of the original note with the blank endorsement at the time it filed the complaint to establish standing. See Green, 109 So.Bd at 1288.

In this case, the blank endorsement, which is apparently located on the back of the note, did not get copied for the record. Thus, the record does not reflect whether the endorsement was dated. Even if it did bear a date that was prior to the filing of the complaint in January 2008, nothing in the record establishes that Wells Fargo was in possession of the note at the time the complaint was filed. Although Wells Fargo alleged in its unsworn complaint that it was the owner and holder of the note and mortgage, it asserted that the original note had been lost or destroyed and “is not now in the custody and control of [Wells Fargo].” Notably, the affidavit of indebtedness filed in support of summary judgment relies on the postfiling assignment for standing and states as follows: “By way of corporate assignment from BNC Mortgage, Inc., [Wells Fargo] now owns and holds the Note and Mortgage.” (Emphasis added.) No evidence established when Wells Fargo acquired the original note.

Wells Fargo noted that the trust in which Focht’s mortgage loan was held was created years before Wells Fargo filed the foreclosure action. But the record does not reflect that, at the time the trust was created, Focht’s mortgage loan was an asset of the trust. Thus, a genuine issue of material fact remains regarding standing that precludes the entry of summary judgment. See Cutler, 109 So.3d at 226 (reversing summary judgment where a plaintiff who was not the original lender filed a claim to reestablish a lost note with its foreclosure claim and subsequently found and filed the original note but failed to present evidence establishing when the plaintiff became the proper holder of the note); McLean, 79 So.3d at 174 (same).

Accordingly, we reverse the final judgment in case number 2D11^511 and remand for further proceedings, and we dismiss as moot the appeal in case number 2D11-4980. We also certify a question based on some of the same concerns articulated by Judge Altenbernd in his concurrence. We recognize that trial courts have been overwhelmed by foreclosure filings and that the number is' mounting. See In re Amendments to Fla. R. Civ. P. 1.490, 113 So.3d 777, 778 (Fla.2013). And the supreme court has taken action to relieve the backlog of foreclosure cases by various means within its authority. See id. at 779; In re Certification of Need for Additional Judges, 29 So.3d 1110, 1115-16 (Fla.2010).

For our part, appellate courts have seen a recent influx of appeals in which defendants have successfully argued that the trial court erred in entering a foreclosure judgment in favor of the plaintiff because the plaintiff failed to establish standing at the time of filing. See, e.g., Cutler, 109 So.3d at 225; Gonzalez, 95 So.3d at 253-54; Green, 109 So.3d at 1288; McLean, 79 So.3d at 174. In many of these cases, the plaintiff presented unrefuted proof of standing acquired after filing but prior to the final hearing. See id. The appellate courts are nonetheless compelled to reverse based on the district courts’ application of a long line of supreme court cases applying the general principle that “the plaintiffs lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed.” Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1284-85 (Fla. 2d DCA 2005) (following Voges v. Ward, 98 Fla. 304, 123 So. 785 (1929), and Marianna & B.R. Co. v. Maund, 62 Fla. 538, 56 So. 670 (1911)); see also Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990) (following Marianna, 62 Fla. 538, 56 So. 670).

We note that the supreme court has not applied this standing principle in the exact context presented in this case. And we question whether, in light of the ongoing foreclosure crisis in this State, the supreme court would adhere to this principle in cases in which a plaintiff has acquired standing by the time judgment is entered. Accordingly, we certify the following question as one of great public importance:

CAN A PLAINTIFF IN A FORECLOSURE ACTION CURE THE INABILITY TO PROVE STANDING AT THE INCEPTION OF SUIT BY PROOF THAT THE PLAINTIFF HAS SINCE ACQUIRED STANDING?

Reversed and remanded.

DAVIS, C.J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this decision because existing precedent requires me to do so. A requirement that the plaintiff prove that it owned or possessed a promissory note at the commencement of a foreclosure action may have made sense during earlier periods of economic downturn, but in this era of securitization of mortgage debt and computerized banking, it has proven to be a restriction that often provides a windfall to a borrower who can prove no harm by the fact that the plaintiff obtains possession of the note after the filing of the lawsuit but before the entry of judgment. So long as there is no dispute that the borrower received the money and defaulted on the note, the law should not use “standing” to require the dismissal of a lawsuit. If the defendant raises this issue at the inception of the lawsuit this affirmative defense may warrant a delay in the proceedings while the plaintiff establishes that it can enforce the note. But especially when the original note in default has already been filed in the court record, the law should generally permit a plaintiff to obtain a judgment of foreclosure if the plaintiff establishes that it has a right to enforce the note at the time it seeks to obtain a final judgment. See generally Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010). The courts have erroneously transformed what should be a defendant’s affirmative defense, permitting the defendant to avoid a judgment of foreclosure by a plaintiff who is a stranger to the note, into a jurisdictional prerequisite that must be established by the plaintiff to avoid a dismissal of the action.

There appears to be no genuine dispute in this case that Ms. Focht borrowed about $110,000 from BNC Mortgage, Inc., in 2002, using her duplex as collateral. She signed a promissory note and executed a mortgage. She did not make the payment due in September 2007 or any payment thereafter. As a result, Wells Fargo filed this foreclosure action in January 2008.

Ms. Focht filed an answer pro se. It included twenty-one affirmative defenses. Many of those defenses were frivolous— contributory negligence, basic rights under Article I, section 2 of the Florida Constitution, improper forum, and piercing the corporate veil. Read generously, I do not believe this answer raised a defense of standing.

In July 2008, Wells Fargo filed the original promissory note with the court. Only then did Ms. Focht raise a defense of standing. At that time and for the last five years, there has been no practical risk that any other entity might claim ownership of or a right to enforce the note. Certainly, Ms. Focht is not claiming that she is making timely payments to some other putative owner of the note.

But for the precedent, there would appear to be no reason to reverse this case. Admittedly, in this case and in numerous other cases the financial institutions have brought these problems upon themselves by the complex methods of securitizaton and their own sloppy recordkeeping. Admittedly, Ms. Focht and many other Floridians believe they were misled by mortgage brokers and others into signing notes and mortgages that were not appropriate for their financial circumstances. Admittedly, some borrowers become confused and frustrated because they do not know whom to contact to discuss their financial difficulties when they fall behind on a note. But none of these concerns are solved by creating a jurisdictional prerequisite of “standing.”

Ms. Focht cannot demonstrate that she has been the victim of any legal harm in this case arising from Wells Fargo’s delayed possession of the note. In fact, it appears that she has lived for years in this duplex during the pendency of the foreclosure proceeding, collecting rent from the tenants in the other unit, while making no payments on the note and while forcing the lender to advance $22,218.85 toward taxes or other escrow expenses.

The trial courts have been overwhelmed by foreclosure filings. In many of these civil lawsuits the defendants, under a duty to plead in good faith, should be expected to admit that they received the money, signed the notes and mortgages, and failed to make the payments. They may often have legitimate affirmative .defenses, but the delayed production of the original note and mortgage in a case where the note and mortgage are in default should not justify a dismissal of the legal proceeding.

Presumably, our mandate requires the dismissal of this foreclosure action, which in turn will undo the foreclosure sale. Ms. Focht will regain possessioh of her property and apparently continue her free use of the duplex while the lender continues to make advances to cover the expenses typically paid from escrow. Our certified question of great public importance is dis-positive of this appeal and worthy of consideration by the supreme court.

      . Case law focuses on standing to enforce the note, as opposed to the mortgage, because the mortgage generally passes as an incident to the debt. Cutler v. U.S. Bank Nat’l Ass’n, 109 So.3d 224, 225 (Fla. 2d DCA 2012).

      . The Trial Court Budget Commission has filed a petition with the Florida Supreme Court estimating that there will be 680,000 foreclosure cases initiated during the next three years. In re Amendments to Fla. R. Civ. P. 1.490, 113 So.3d 777, 778 n. 2 (Fla.2013).

      . See generally Tunno v. Robert, 16 Fla. 738 (1878); Smith v. Kleiser, 91 Fla. 84, 107 So. 262 (1926).


author: COHEN, J.

text:
    John R. PRATT, Appellant, v. EQUITY BANK, N.A., et al., Appellees.
    No. 5D12-4622.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 2013.
    Rehearing Denied Nov. 1, 2013.

      Benjamin E. Hillard of Hillard Law Group, P.A., Largo, for Appellant.
    Elizabeth M. Bohn of Jorden Burt, LLP, Miami, for Appellee.
   COHEN, J.

Appellant, John Pratt, appeals a non-final order to show cause why he should not be held in contempt of court and sanctioned for failure to comply with a court order compelling him to produce documents. This dispute arises out of Appel-lee, Equity Bank’s attempt to enforce a Kansas judgment in a Florida circuit court. Pratt concedes that the Kansas judgment is enforceable in Florida, but argues that the trial court lacked personal jurisdiction over him. For a Florida court to have personal jurisdiction, Pratt contends, Equity Bank must personally serve him with process, in accordance with Florida statutory procedures. We disagree and affirm.

On July 14, 2010, Equity Bank obtained a default judgment (“the Kansas judgment”) against Pratt in the District Court of Miami County, Kansas. On October 11, 2010, Equity Bank filed and recorded the Kansas judgment in Osceola County, Florida pursuant to the Florida Enforcement of Foreign Judgments Act, §§ 55.501-.509, Fla. Stat. (2008). In accordance with section 55.505, the clerk of the court mailed a notice of recording of the judgment to Pratt at his Florida address by registered mail with return receipt requested. The mailing was returned unclaimed.

Thereafter, Equity Bank took various steps to enforce the Kansas judgment, including serving Pratt with a request for production of documents pursuant to Florida Rules of Civil Procedure 1.350 and 1.560. When Pratt did not comply with the request, the trial court entered an order to compel, ordering Pratt to produce the documents. When Pratt again failed to comply, Equity Bank filed a motion seeking sanctions. Specifically, Equity Bank asked the court for a writ of bodily attachment, to hold Pratt in contempt, and for attorney’s fees. Equity Bank served Pratt with this motion and a copy of the notice of hearing by mail and e-mail.

At the next hearing, Pratt’s counsel made a special appearance, arguing that the order to compel was void because the court lacked personal jurisdiction over Pratt. The trial court rejected Pratt’s jurisdictional argument and entered an order to show cause directing Pratt to appear and show cause why he should not be held in contempt. The order also provided that Pratt could avoid sanctions by producing the requested documents at least ten days before the next hearing.

Although Pratt continued to contest jurisdiction, he was unsuccessful, and the trial court entered a third order to show cause on July 27, 2012. Pratt appealed this order and filed a motion to stay the order pending appeal. We dismissed the appeal for failure to prosecute. The trial court then entered an amended third order to show cause, ordering Pratt to appear on December 12, 2012, and noting that failure to appear would result in a writ of attachment being issued directing the Sheriff to bring Pratt before the court. Again, the order stated that Pratt could avoid sanctions by complying with the discovery request. Pratt timely appealed.

A trial court’s determination of personal jurisdiction is reviewed de novo. Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 470 (Fla. 5th DCA 2007).

The Florida Enforcement of Foreign Judgments Act (FEFJA) provides a procedure for the holder of a foreign judgment to record the judgment and enforce it in Florida courts under Florida rules as if it were a Florida Judgment. See § 55.503, Fla. Stat. (2008); see also Fazzini v. Davis, 98 So.3d 98, 102 (Fla. 2d DCA 2012) (“When a foreign judgment is domesticated, it becomes enforceable as a Florida judgment.”). The FEFJA stems from the Full Faith and Credit Clause of the United States Constitution. Archbold Health Servs., Inc. v. Future Tech Bus. Sys., Inc., 659 So.2d 1204, 1205-06 (Fla. 3d DCA 1995). The purpose of the FEFJA is to provide a speedy and efficient method of enforcing foreign judgments “without the further cost and harassment often incurred [with] an entirely new and separate action. ...” Id. at 1206. Thus, it does not require that the judgment creditor file a new lawsuit. Haigh v. Planning Bd. of Medfield, 940 So.2d 1230, 1233 (Fla. 5th DCA 2006). However, it also does not “impair the right of a judgment creditor to bring an action to enforce his or her judgment instead of proceeding under [the FEFJA].” § 55.502(2), Fla. Stat. (2008).

In order to render a foreign judgment enforceable in Florida, the judgment creditor must record the judgment and provide the clerk of the circuit court with an affidavit setting forth the last known address of the judgment debtor. Id. § 55.505(1). Once the foreign judgment is recorded, the clerk is to mail notice of the recording, by registered mail .with return receipt requested, to the judgment debtor. Id. § 55.505(2). The statute makes clear that a properly recorded judgment will have “the same effect and shall be subject to the same rules of civil procedure, legal and equitable defenses, and proceedings for reopening, vacating, or staying judgments, and it may be enforced, released, or satisfied, as a judgment of a circuit or county court of this state.” Id. § 55.503(1).

Upon recordation, the judgment debtor has thirty days to file an action contesting either the validity of the foreign judgment or the jurisdiction of the court that entered the foreign judgment. Id. § 55.509(1). If the judgment debtor wishes to dispute the original judgment, it is incumbent upon him, not the judgment creditor, to initiate a new lawsuit. See id.; see also Haigh, 940 So.2d at 1233 (discussing this procedure, but allowing judgment debtor to dispute enforcement without bringing separate action because judgment creditor invited error by mistakenly filing complaint instead of using FEFJA recording and notice procedures).

Here, it is undisputed that Equity Bank complied with the recording and notice procedures of the FEFJA. Pratt further concedes that the Kansas court had personal jurisdiction over him, and that the Kansas judgment is enforceable in Florida. Pratt nevertheless argues that personal service of process must be effectuated for a Florida court to have personal jurisdiction over a judgment debtor in enforcement proceedings. We reject Pratt’s position and hold that service of process is not required to enforce a foreign judgment against a judgment debtor. See Conidaris Constr. Co. v. First Atlantic Sav., 572 So.2d 27, 28 (Fla. 2d DCA 1990) (“We agree with GNLV Corp. v. Featherstone, 504 So.2d 63 (Fla. 4th DCA 1987), that section 55.501, Florida Statutes (1988), which provides procedures for the domestication of foreign judgments in Florida, is constitutional. We do not agree ... that the provisions in that section for notice to the judgment debtor are insufficient to meet due process standards.”); see also Tabet v. Tabet, 644 So.2d 557, 559 (Fla. 3d DCA 1994) (“The minimum contacts requirement of the due process clause does not prevent Florida from enforcing another state’s valid judgment against a judgment-debtor’s property located here, regardless of the lack of other minimum contacts by the judgment-debtor.” (citing Shaffer v. Heitner, 433 U.S. 186, 210 n. 36, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977))).

Pratt’s insistence that Equity Bank is not only domesticating a foreign judgment, but also taking further legal action, is equally meritless. Equity Bank’s actions are consistent with the Florida rules for enforcing judgments, which allow discovery requests in aid of execution. See Fla. R. Civ. P. 1.560 (allowing for discovery in aid of execution); see also § 55.503(1), Fla. Stat. (2008) (stating that a properly recorded foreign judgment has “the same effect and shall be subject to the same rules of civil procedure ... as a judgment of a circuit or county court of this state”). Therefore, in issuing the order to show cause, the trial court properly exercised its power to enforce foreign judgments.

Accordingly, we affirm.

AFFIRMED.

LAWSON and EVANDER, JJ„ concur.

      . For support, Pratt relies on this Court's decision in Gorny v. St. Leger, 114 So.3d 238 (Fla. 5th DCA 2013). However, Gomy is distinguishable from the instant case because, in Gomy, the judgment creditor filed a petition for domestication and enforcement of the foreign judgment in addition to recording the judgment pursuant to the FEFJA. Id. at 238. Equity Bank, on the other hand, relied solely on the FEFJA and did not file a new, separate legal action.


author: SAWAYA, J.

text:
    John BOYLE, Appellant, v. HERNANDO BEACH SOUTH PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 5D12-2993.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 2013.

      Robert Bruce Snow, of Robert Bruce Snow, P.A., Brooksville, for Appellant.
    Neil E. Polster, of Joseph R. Cianfrone, P.A., Dunedin, for Appellee.
   SAWAYA, J.

The appellant in this mandatory injunction case, John Boyle, is the owner of a residence in a subdivision that is subject to a restrictive agreement (“Agreement”) requiring, among other things, that “[l]ot owners ... keep their lots in a neat, clean and orderly condition.... ” The Agreement also provides that any violators may be subject to an equitable suit to enforce these restrictions. The appellee, the Her-nando Beach South Property Owners Association, Inc. (the “Association”), acts as the homeowners’ association for the subdivision, and it initiated an action against Boyle seeking a mandatory injunction requiring him to comply with the Agreement. The mandatory injunction it eventually obtained specifically requires Boyle to comply with the part of the restrictive agreement just quoted by “properly maintaining and trimming the landscaping and trees and cleaning or removing the mold on the home.” The injunction further provides that if Boyle fails to comply, the Association may enter and maintain the property and place a lien on the property that could be foreclosed if the costs incurred by the Association in bringing the property up to standard are not paid.

The injunction was obtained after the Association filed a Motion for Summary Judgment. Submitted in conjunction with the Motion were affidavits of five officers and directors of the Association stating that, based on their personal knowledge, Boyle “failed to properly maintain his lot within Hernando Beach, Unit 13-B. Specifically, the landscaping and trees need to be trimmed and properly maintained. Additionally, mold on the home needs to be cleaned/removed.” After the trial court rendered the order under review, which granted the Motion and entered the mandatory injunction, Boyle filed this appeal contending that material issues of fact remained unresolved and that the supporting affidavits were insufficient, thus making summary judgment inappropriate.

A party may move for summary judgment regarding a claim or any part thereof in accordance with the provisions of Florida Rule of Civil Procedure 1.510. Fla. R. Civ. P. 1.510(a). The purpose of the summary judgment rule is to allow the trial court to look beyond the confines of the pleadings to the “summary judgment evidence” (affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence) to determine whether there are issues of material fact that require resolution by the trier of fact. Fla. R. Civ. P. 1.510(c). If there are none and the moving party is entitled to a judgment as a matter of law, the court may resolve the claim without the necessity of a costly and time consuming trial. See Gabriel v. Disney Cruise Line, 93 So.3d 1121, 1123 (Fla. 5th DCA 2012); Krol v. City of Orlando, 778 So.2d 490, 491-92 (Fla. 5th DCA 2001); Quilling v. Cnty. of Sumter, 726 So.2d 795, 795-96 (Fla. 5th DCA 1999); see also Nat’l Airlines v. Fla. Equip. Co. of Miami 71 So.2d 741, 744 (Fla.1954) (“The function of the rule authorizing summary judgments is to avoid the expense and delay of trials when all facts are admitted or when a party is unable to support by any competent evidence a contention of fact.”).

The trial court granted summary judgment in favor of the Association regarding its claim relating to the landscaping and trees and its claim relating to the mold on the house. In determining whether the trial court was correct, we must analyze the summary judgment evidence in the record, which consisted mainly of the affidavits submitted by the Association. There are very well defined rules that apply to our analysis. The moving party bears the initial burden of showing that, based on the summary judgment evidence, no material issues of fact exist and it is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966); Bryson v. Branch Banking & Trust Co., 75 So.3d 783, 785 (Fla. 2d DCA 2011); Krol. If the court determines that the movant has met its initial burden, the non-moving party then bears the burden of showing that there are issues of material fact that exist and that the movant is not entitled to a judgment as a matter of law. Holl; Bryson. The non-moving party may meet that burden by submitting proper summary judgment evidence to counter the evidence submitted by the moving party. Holl; Bryson. The trial court must view the summary judgment evidence in the light most favorable to the non-moving party when deciding whether summary judgment is appropriate. Gabriel; Dreggors v. Wausau Ins. Co., 995 So.2d 547, 549 (Fla. 5th DCA 2008); Krol. If a reviewing court determines that summary judgment is inappropriate regarding'part of the claim, it may reverse that part and affirm the other part. See, e.g., Cintron v. Bankers Trust Co., 682 So.2d 616, 616-17 (Fla. 2d DCA 1996); Sec. Ins. Co. of Hartford v. Baad, 657 So.2d 10, 10-11 (Fla. 3d DCA 1995); Gloris v. Williams Paving Co., Inc., 556 So.2d 748, 749 (Fla. 3d DCA 1989).

Boyle argues that the summary judgment evidence in the record does not indicate how he was in violation of the Agreement. Regarding the landscaping and trees, we agree. The affidavits submitted by the Association merely parrot the allegations of the complaint by reasserting that Boyle’s landscaping and trees were not properly trimmed and maintained. But there are no allegations and there is no evidence to show how the landscaping and trees had not been properly maintained and trimmed. Boyle lists- a constellation of uncertainties in his brief questioning whether the allegations and affidavits meant, for example, whether his grass was dead-or uncut, whether his trees were dead or how they were untrimmed, and whether his shrubbery was overgrown and to what extent. We could add to the list of imponderables but will decline to do so. Given the lack of evidence presented by the Association to establish that Boyle’s landscaping and trees were not maintained “in a neat, clean and orderly condition,” it is unclear how Boyle violated the Agreement and what steps he is to take to ensure that his landscaping and trees are in compliance. Thus, construing the summary judgment evidence in the record in the light most favorable to Boyle, there are material issues of fact that are present making summary judgment regarding the issue of the landscaping and trees improper.

But the mold on the house is another matter. That issue does not suffer from the same infirmities as the issue regarding the landscaping and trees because the mold on the house was established by the statements made in the affidavits, which leave no room for speculation or conjecture. Once the Association met its initial burden of proving the absence of any material issue of fact regarding the mold, the burden shifted to Boyle to establish that material issues of fact did exist. Boyle did not file any affidavits or submit other summary judgment evidence to meet his burden. As the Association correctly argues, “the existence of mold on the subject home was a readily observable fact to the five affiants who swore to their personal knowledge, and were not refuted by counter-affidavit or other proof.”

We reverse the part of the order regarding the landscaping and trees and remand for further proceedings. The part of the order regarding the mold is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

      . The operative pleading filed by the Association is its Amended Complaint, which included a count for declaratory judgment regarding its right to enforce the Agreement. This count appears to have also been granted by the order under review.

      . Boyle also contends that affirmative defenses were not properly negated and the pertinent part of the Agreement is vague and ambiguous. As to these issues, we affirm without further discussion.


text:
    Alessandra BARBIERI, Appellant, v. Glenn MULLER, Appellee.
    No. 5D13-1605.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 2013.
    Rehearing Denied Oct. 29, 2013.
    James M. Campbell, Winter Park, for Appellant.
    Andrea Cox, of Arnstein & Lehr, LLP, Miami, for Appellee.
   PER CURIAM.

Alessandra Barbieri appeals from an order dissolving a permanent injunction for domestic violence protection against her former boyfriend, Glenn Muller. She correctly argues that the trial court abused its discretion in dissolving the injunction by reweighing the evidence supporting the initial injunction rather than finding a change in circumstances since the injunction was issued. See Reyes v. Reyes, 104 So.3d 1206, 1207 (Fla. 5th DCA 2012), review denied, SC13-256, 2013 WL 4528571 (Fla. Aug.16, 2013). Accordingly, we reverse and remand for reinstatement of the injunction.

REVERSED AND REMANDED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    Virgil M. BENNETT and Lissette C. Bennett, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., et al., Appellees.
    No. 4D12-2471.
    District Court of Appeal of Florida, Fourth District.
    Oct. 9, 2013.
    Rehearing Denied Nov. 19, 2013.

      Amanda L. Lundergan of Ice Appellate, Royal Palm Beach, for appellants.
    Heidi J. Weinzetl, A1 Gibson and A. Renee Decker of Baker, Donelson, Bear-man, Caldwell & Berkowitz, PC, Fort Lauderdale, for appellee, Deutsche Bank National Trust Company.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellee Deutsche Bank’s motion for rehearing, withdraw our opinion dated August 7, 2013, and substitute the following.

We affirm the summary final judgment of foreclosure because the borrowers failed to provide any evidence that overcame a statutory presumption that operated in favor of the bank.

Deutsche Bank filed a mortgage foreclosure action against Virgil and Lissette Bennett, alleging that it was “the current owner of or has the right to enforce the Note and Mortgage.” With the complaint, Deutsche Bank filed copies of the note ■with two allonges and the mortgage. The first allonge contained an undated endorsement from the original lender (H & R Block) to Option One Mortgage. The second allonge contained an undated endorsement in blank from Option One Mortgage. Both allonges were signed by the same individual, Elizabeth Causseaux.

The Bennetts filed an amended answer and affirmative defenses, contending: (1) that Elizabeth Causseaux was not authorized to sign the allonges on behalf of one or both of the separate entities; and (2) that the Bank was not in possession of the original note.

Deutsche Bank moved for summary judgment and filed supporting affidavits. The Bank also filed the original loan documents, which were identical to the copies attached to the complaint. The trial court granted the Bank’s motion for summary judgment.

The Bennetts filed a motion for rehearing, raising a number of issues for the first time, along with those issues first raised in their affirmative defenses. Because the issues raised for the first time in the motion for rehearing were not properly preserved for appeal, they will not be addressed here. See Best v. Educ. Affiliates, Inc., 82 So.3d 143, 146 (Fla. 4th DCA 2012).

As to the issues that were properly preserved for appeal, this court reviews the trial court’s entry of summary judgment using the de novo standard of review. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 172 (Fla. 4th DCA 2012). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. This court must examine the record in the light most favorable to the Bennetts, the non-moving party. Id.

“ ‘A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.’ ” Rigby v. Wells Fargo Bank, 84 So.3d 1195, 1196 (Fla. 4th DCA 2012) (quoting McLean, 79 So.3d at 173).

Deutsche Bank relies on this court’s opinion in Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010), where we held that an endorsement on a note was self-authenticating pursuant to section 90.902(8), Florida Statutes (2008). In Riggs, this court affirmed the final summary judgment of foreclosure relying on the statutory presumption in section 673.3081(1), Florida Statutes (2008), which provides:

In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature.

§ 673.3081(1), Fla. Stat. (2008).

Crucial to this case is the language in section 673.3081(1) that the “signature is presumed to be authentic and authorized” in the absence of circumstances not applicable here. Uniform Commercial Code Comment 1 to section 673.3081 explains the operation of this presumption as follows:

“Burden of establishing” is defined in Section 1-201. The burden is on the party claiming under the signature, but the signature is presumed to be authentic and authorized except as stated in the second sentence of subsection (a). “Presumed” is defined in Section 1-201 and means that until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff is not required to prove that it is valid. The presumption rests upon the fact that in ordinary experience forged or unauthorized signatures are very uncommon, and normally any evidence is within the control of, or more accessible to, the defendant. The defendant is therefore required to make some sufficient showing of the grounds for the denial before the plaintiff is required to introduce evidence. The defendant’s evidence need not be sufficient to require a directed verdict, but it must be enough to support the denial by permitting a finding in the defendant’s favor. Until introduction of such evidence the presumption requires a finding for the plaintiff. Once such evidence is introduced the burden of establishing the signature by a preponderance of the total evidence is on the plaintiff.

Comment 1 describes a “bursting bubble” presumption that is consistent with Florida law. See Locke v. Stuart, 113 So.2d 402, 404 (Fla. 1st DCA 1959); § 90.802(1), Fla. Stat. (2012); C. Ehrhardt, Florida Evidence §§ 301.1-308.1 (2012 ed.).

In this case, the effect of the section 673.3081(1) presumption was to require the Bennetts to make some eviden-tiary showing to support their claim that Causseaux was unauthorized to sign the allonges. Because they failed to offer any such evidence, Deutsche Bank was entitled to rely on the presumption to obtain a summary final judgment.

Such an operation of a presumption within the framework of a motion for summary judgment is consistent with the way the Supreme Court applied a statutory presumption in Fred McGilvray, Inc. v. Askew, 340 So.2d 475, 479-80 (Fla.1976). There, a taxpayer sought to establish that he did not owe state taxes on items he shipped to the Bahamas. Id. at 476-77. In affirming a summary judgment, the Supreme Court applied a statutory presumption that property was not to be considered “for export” unless certain conditions were met. Id. at 479-80. Recognizing that the statutory presumption was “rebut-table by the taxpayer,” the Court observed that the taxpayer, like the Bennetts in this case, “failed to carry its burden of overcoming the statutory presumption” by offering evidence in support of the claim that no taxes were owed. Id. at 480.

For these reasons, the summary final judgment of foreclosure is affirmed.

Affirmed.

GROSS, MAY, JJ., and JOHNSON, LAURA, Associate Judge, concur.

      . § 212.06(5), Fla. Stat. (1969).