author: CIKLIN, J.

text:
    Dwight PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4653.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.

      Michael Hursey, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, West Palm Beach, for ap-pellee.
   CIKLIN, J.

Dwight Parker appeals his convictions for multiple drug-related charges. We hold that the admission of gun-related evidence was error and reverse and remand for a new trial. Our reversal on this one issue renders most of the remaining issues moot and others lack merit in the first instance. However, some points raised in Parker’s cumulative error argument have merit and therefore in the event they arise on retrial, we address them.

The charges in this case arose from a routine traffic stop. After an officer saw what he believed to be the stock of a gun tucked between the seats - of the vehicle Parker was driving, Parker was removed from the vehicle for officer safety. In fact, the object observed by the officer was a small semi-automatic weapon and the firearm was secured. After it came to light that Parker was a convicted felon, he was arrested for being in unlawful possession of a firearm.

While the officers were conducting an inventory search of the vehicle, they discovered pills and cocaine within a container designed to look like a can of foot deodorant spray. As a result, Parker was charged — in addition to the felon in possession of a firearm charge — with trafficking in oxycodone, possession of cocaine with intent to sell or deliver, possession of alprazolam, and possession of drug paraphernalia. Parker was also charged with misdemeanor possession of marijuana, based on marijuana found in the police vehicle in which Parker was transported after his arrest. Prior to trial, the firearm count was severed, as it clearly should have been.

In a pre-trial hearing, the court addressed Parker’s motion to exclude any evidence related to the gun found in the car Parker was driving. Defense counsel argued that any probative value would be outweighed by the prejudicial effect. Although the trial court initially granted the motion in limine, it later reversed itself and agreed with the state that the evidence was necessary to explain why the car was searched. The court ruled that the state could present evidence that Parker was arrested “for having the gun,” but that there should be no reference to Parker’s convicted felon status.

During trial, the officer who first saw the gun identified it as the one he removed from the car. Over defense counsel’s repeated objections, the trial court not only admitted the gun into evidence, but allowed it to be published to the jury. The same officer was allowed to testify that the weapon was located where Parker was observed placing his hand after he was stopped. Another officer testified that Parker was arrested for a firearm charge after the gun was removed from the vehicle. Defense counsel’s motion for mistrial was denied, but the trial court gave the jury the following curative instruction: “[YJou’re not to consider the fact that the defendant was arrested for a gun charge. It is not one of the charges for you to consider in this case, and it should have no bearing on your decision about the crimes that he’s been charged with.”

Both before the trial court and on appeal, the state argued that evidence of the semi-automatic weapon found in the car was essential to provide the jury with a complete understanding of what began as a routine traffic stop. Even though a discussion of the gun’s discovery between the car seats would result in the improper admission of other bad conduct, the state convinced the trial court that it was impossible for the state to present its case without the gun-related testimony.

Inextricably Intertwined Evidence

The Florida Supreme Court has explained that evidence of bad conduct can be admissible if inextricably intertwined with the charged offense and necessary for a complete description thereof:

Occasionally when proving the elements of a crime, it becomes necessary to admit evidence of other bad conduct to adequately describe the offense or connect the elements of the offense because the charged offense and the other conduct are significantly linked in time and circumstance. In other words, this evidence is admissible because it is a relevant and interwoven part of the conduct that is at issue. Where it is impossible to give a complete or intelligent account of the criminal episode without reference to other uncharged crimes or bad conduct, such evidence may be used to cast light on the primary crime or elements of the crime at issue. However, when there is a clear break between the prior conduct and the charged conduct or it is not necessary to describe the charged conduct by describing the prior conduct, evidence of the prior conduct is not admissible on this theory.

Wright v. State, 19 So.3d 277, 292 (Fla. 2009) (emphasis in original) (citations and quotation marks omitted). See also Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (“[EJvidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, .... is admissible ... because ‘it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.’ ”) (citations omitted).

“Evidence is inextricably intertwined if the evidence is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crime(s).” McGee v. State, 19 So.3d 1074, 1078 (Fla. 4th DCA 2009) (quoting Dorsett v. State, 944 So.2d 1207,1213 (Fla. 3d DCA 2006)). However, “[ejven when inextricably intertwined, [collateral crime evidence] cannot become a feature of the trial.” Wright, 19 So.3d at 293 (citation omitted).

Gum-Related Evidence

Trial courts must be particularly cautious and vigilant when considering the question of admissibility of gun-related evidence.

We recognize that gun-related evidence has been held to be admissible as inextricably intertwined in cases involving drug charges. See, e.g., Monestime v. State, 41 So.3d 1110,1112-13 (Fla. 3d DCA 2010); Vail v. State, 890 So.2d 373, 376 (Fla. 3d DCA 2004). However, in this matter, the court allowed the state to go far afield of what was necessary to present “an intelligent account of the crime(s) charged.”

It was not necessary for the gun found in the car Parker was driving to be admitted into evidence. It was even more unnecessary for the gun to be published to the jury, and there was no rational need for the jury to hear that Parker was arrested for a gun-related charge and that he attempted to reach for the gun while in the vehicle. Quite evidently, it would have been sufficient for the jury to hear that Parker was removed from the vehicle because the officer spotted what he believed to be a gun, and that the officers then conducted a permissible search. See McCall v. State, 941 So.2d 1280, 1282-84 (Fla. 4th DCA 2006) (finding that where the defendant was charged with gun-related charges after being found in a stolen car with a gun, it was not necessary for the jury to hear that the car was stolen in order to understand how the crime came to light). Here, the state was permitted to cross a clearly protected line of inquiry which was then exacerbated by giving the weapon featured billing during the trial.

Harmless Error

Harmless error analysis applies to this type of error. Thomas v. State, 885 So.2d 968, 975-76 (Fla. 4th DCA 2004). It cannot be said the admission of the gun-related evidence in this case was harmless. Because the gun was introduced into evidence, published to the jury, and otherwise made a feature of the trial, it became a feature which did nothing more than invite additional focus on evidence that should not have been admitted in the first instance. Furthermore, the curative instruction did not render the error harmless. See Freeman v. State, 680 So.2d 1225,1226-27 (Fla. 4th DCA 1994) (finding that erroneous admission of testimony regarding collateral crime of drug dealing was not harmless where the case hinged on a close factual question, and curative instruction was ineffective to overcome the prejudicial effect).

Additional Issues

Because of our holding, most of the remaining issues are rendered moot. However, in light of our remand for a new trial, we find it prudent to address three other issues raised by Parker which are meritorious.

First, Parker argues on appeal that the trial court erred in failing to instruct the jury on simple possession for the trafficking charge. The discussions at sidebar leave it unclear as to whether Parker preserved this issue. Nonetheless, in the event he clearly requests the instruction on retrial, the trial court would be required to give it. See Amado v. State, 585 So.2d 282, 283 (FIa.1991) (holding that where the defendant is charged with trafficking by multiple methods including possession, the trial court must give an instruction on simple possession if requested to do so, even if there is no real dispute that the defendant possessed a trafficking amount).

Second, we agree with Parker that the court erred in excluding, on relevancy grounds, documentation purportedly corroborating a defense witness’ testimony that the pills found in the container belonged to the witness, and that it was the defense witness who was taking pain medication. As part of his defense, Parker presented the testimony of his housemate, James Rich, who testified that the foot deodorant spray container and pills within it belonged to him. The defense sought to admit Rich’s prescription for various types of painkillers, some of which were the type found in the container. The defense also sought to introduce a letter indicating Rich had visited a pain clinic in February and April 2007, and was taking prescription pain medication. The court found the documents were not relevant to the drugs found in the vehicle Parker was driving. This was error. “[Tjhe question of what is relevant to show a reasonable doubt may present different considerations than the question of what is relevant to show the commission of the crime itself. Where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” Neiner v. State, 875 So.2d 699, 700 (Fla. 4th DCA 2004) (citations and internal quotation marks omitted). Under this standard, the excluded evidence was relevant to Parker’s defense theory, part of which was that the drugs belonged to Rich. During any retrial where the same defense theory is presented, these documents should not be excluded based on a relevance objection.

Finally, Parker argues on appeal that the court erred in admitting evidence that about two weeks before Parker was arrested for the charges in this case, a similar fake container was found in his home. During a hearing on the motion to admit the evidence,- a detective testified that she executed a search warrant on Parker’s home and found what appeared to be a container of cheese curls in Parker’s bedroom, but was actually a fake can like the one found in the vehicle Parker was driving. The can contained marijuana residue. The detective assumed the bedroom was Parker’s based on “clothing” and “paperwork,” but she did not elaborate on the genesis of these assumptions. The trial court ruled the evidence was admissible Williams rule evidence, but we must find to the contrary. The evidence was not relevant to show identity, as that was not an issue in the case. Additionally, the evidence did not refute Parker’s defense, which essentially denied knowledge and pinned ownership on Rich. The fact that there was a similar fake can in the house Parker shared with Rich “did not contradict an innocent explanation” of Parker’s possession of the drugs nor does this evidence “share any substantial similarity with the charged offense.” Vice v. State, 39 So.3d 352, 357 (Fla. 1st DCA 2010) (citations and internal quotation marks omitted).

Conclusion

Based on the erroneous admission of gun-related evidence, we have no choice but to reverse and remand for a new trial.

Reversed and remanded for new trial.

TAYLOR and GERBER, JJ., concur.

      . The vehicle did not belong to Parker.

      . The denial of Parker's motion to suppress is not moot, but we find it has no merit.

      . On appeal, the state argues the documents were inadmissible hearsay and not properly authenticated. We do not address these arguments as the court’s ruling was not based on anything other than relevance, and the hearsay and authentication issues were not developed below.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).


source: Caselaw Access Project

license: Public Domain

text:
    Sharon P. TALBOT, Appellant, v. Margaret A. ROSENBAUM, Appellee.
    Nos. 4D11-4338, 4D12-4312.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.

      Lawrence U. Taube of the Law Office of Lawrence U. Taube, West Palm Beach, for appellant.
    Albert J. Piantini of Piantini and Associates, P.A., Coral Gables, and Andrew M. Kassier of Andrew M. Kassier, P.A., Coral Gables, for appellee.
   CIKLIN, J.

Sharon Talbot, the defendant below, appeals several orders of the trial court, including a default and default final judgment awarding damages to the plaintiff, Margaret Rosenbaum. Talbot raises three issues on appeal, one of which we determine merits discussion. Talbot contends that the damages alleged in Rosenbaum’s complaint were unliquidated therefore requiring a hearing to determine the proper amount. We agree.

The underlying action for conversion and replevin arose from Talbot’s acquisition of property that was originally purchased with the proceeds of a $75,000 loan made by Rosenbaum to a third party. According to the complaint, Rosenbaum lent the money to the third party, an owner of a Miami sports memorabilia business. The loan was intended to financially assist the third party with the purchase of equipment and inventory for the memorabilia store. The loan was memorialized in a security agreement upon which the owner/third party defaulted shortly after its execution. The defaulting third party then moved all of the inventory and equipment to Palm Beach County, and gifted it to Sharon’s Sportsplex, Inc., which he co-owned with Talbot. Talbot placed the inventory and equipment in a storage facility and refused Rosenbaum’s repeated demands for possession of the property.

After litigation commenced, it was discovered that Talbot disposed of the property. Because of “willful and repeated violations” of various discovery rules and a court order, the trial court exercised its discretion and struck Talbot’s pleadings. Rosenbaum eventually moved for a default and default final judgment and therein sought liquidated damages in the amount of $75,000 exclusive of interest, costs, and attorneys’ fees. The trial court granted Rosenbaum’s motion and entered a default final judgment against Talbot in the amount of $76,800 in compensatory damages, plus pre-judgment interest.

Talbot contends that the trial court erred by characterizing the damages as liquidated and awarding damages without conducting a hearing to determine the value of the property at issue. Rosenbaum counters that argument and contends that the damages amount was liquidated because the court could determine that Talbot owed Rosenbaum $75,000 for the conversion count “with exactness.”

Whether damages alleged are liquidated or unliquidated is a question of law subject to de novo review. See R & B Holding Co. v. Christopher Adver. Grp., 994 So.2d 329, 331 (Fla. 3d DCA 2008) (noting that the proper method of computing damages is a question of law). Although Talbot failed to raise the issue of unliquidated damages below, “the setting of unliquidated damages without the required notice and without proof is regarded as fundamental error.” Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662, 666 (Fla. 3d DCA 2007) (citations and quotation marks omitted). Because fundamental error may be raised for the first time on direct appeal, Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970), this court may review Talbot’s unliquidated damages argument.

Liquidated damages are those that “can be determined with exactness from the cause of action as pleaded.” Matejka v. Dulaney, 40 So.3d 865, 866 (Fla. 4th DCA 2010) (quoting Bowman v. Kings-land Dev., Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983)). “When the complaint alleges only general damages without demanding a specific amount” and a default judgment is entered, “damages are deemed unliquidated.” Watson v. Internet Billing Co., 882 So.2d 533, 534 (Fla. 4th DCA 2004) (citations omitted). As this court has previously stated:

“A default admits a plaintiffs entitlement to liquidated damages under a well-pled cause of action, but not to un-liquidated damages.” Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So.2d 1148, 1150 (Fla. 4th DCA 2006) (citing Bowman v. Kingsland Dev., Inc., 432 So.2d 660 (Fla. 5th DCA 1983)). As a result, “ ‘[a] defaulting party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial interpretation of the amount of unliquidated damages.’ ” Id. (quoting Asian Imports, Inc. v. Pepe, 633 So.2d 551, 552 (Fla. 1st DCA 1994)). “[DJamages are not liquidated if a court must consider testimony or evidence ‘to ascertain facts upon which to base a value judgment.’ ” Id. (quoting Bowman, 432 So.2d at 662).

BOYI, LLC v. Premiere Am. Bank, N.A., 127 So.3d 850, 851 (Fla. 4th DCA 2013) (quoting Minkoffv. Caterpillar Fin. Servs. Corp., 103 So.3d 1049, 1051 (Fla. 4th DCA 2013)). In other words, entry of a default judgment does not deprive the defendant of the right to a hearing to determine damages which are not unliquidated. Matejka, 40 So.3d at 866.

Although Rosenbaum argued that the subject $75,000 loan within her complaint against Talbot was sufficiently specific, the damages sought were not liquidated. Rosenbaum did not seek a precise amount of damages in the complaint; she demanded “judgment” against Talbot, “[a]n award of compensatory damages, with interest,” and “other relief as the court deems proper,” as well as writs of replevin.

Furthermore, even if Rosenbaum had included in her complaint a prayer for damages in the precise amount of $75,000, such damages could still not be considered liquidated. To constitute liquidated damages, the proper amount to be awarded must be determinable “with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Bodygear, 946 So.2d at 1150 (citations omitted). Rosenbaum never alleged that Talbot was directly liable to Rosenbaum under the third party loan agreement. Rather, she loosely alleged that the loan proceeds were used to purchase property which eventually came into the possession of Talbot.

As the prevailing party in a conversion action, Rosenbaum is entitled to a damage award amounting to the market value of the subject property on the date of the conversion plus interest accruing from that date. See Exxon Corp. v. Ward, 438 So.2d 1059, 1060 (Fla. 4th DCA 1983) (citing Gillette v. Stapleton, 336 So.2d 1226, 1227 (Fla. 2d DCA 1976)). Because evidence must be presented to establish the value of the property on the date of conversion, the damages alleged by Rosen-baum in her complaint are, by definition, unliquidated. See Heritage Circle Condo. Ass’n v. State, Fla. Dep’t of Bus. & Prof l Regulation, Div. of Condos., Timeshares & Mobile Homes, 121 So.3d 1141, 1144 (Fla. 4th DCA 2013) (explaining that damages are not liquidated if testimony must be taken to ascertain their exact sum and that defendant would be entitled to an eviden-tiary hearing on damages).

We reverse the portion of the default final judgment awarding unliquidated damages and remand the matter to the trial court for further proceedings to determine the proper amount. On all other issues raised, we affirm.

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

MAY and KLINGENSMITH, JJ., concur.

      . The final judgment does not explain or otherwise account for what appears to be an "extra” $1,800.


author: MAY, J.

text:
    Jeremy HAMILTON, Appellant, v. Betty HAMILTON, Appellee.
    No. 4D14-37.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Elana H. Gloetzner of Elana Weintraub Gloetzner, PLC, Southfield, Michigan, for appellant.
    C. Edward McGee, Jr., of McGee & Huskey, P.A., Fort Lauderdale, for appel-lee.
   MAY, J.

A question of personal jurisdiction is at the center of this appeal. A stepson appeals an order denying his motion to dismiss for lack of personal jurisdiction and an order granting a temporary injunction. He argues the trial court erred in denying his motion to dismiss and granting the temporary injunction because he lacks minimum contacts with the State of Florida. We agree and reverse.

The dispute arises out of family owned and operated adult entertainment establishments in Michigan. Ownership of the establishments is governed by the terms of the Hamilton Family Subchapter S Voting Trust, which was executed in 2006 in Michigan. Each named beneficiary was given a one-fifth interest in shares of stock in the businesses. The five beneficiaries of the Trust were: the stepson, John I. Hamilton, Jr., Charles J. Hamilton, Michael I. Hamilton, and Courtney Vanloo. The managing trustee was the father, who managed the businesses on behalf of the beneficiaries.

Upon the father’s death in 2010, the surviving spouse and stepmother became the managing trustee and also acquired John I. Hamilton, Jr.’s one-fifth interest. As managing trustee, she maintained the bank accounts for the businesses. The Trust provided that the managing trustee “may only be removed by a vote of two-thirds (2/3) of the voting interest and only at a meeting called for the purpose of removing the Managing Trustee.”

The stepson was interested in selling his stock, but none of the beneficiaries wanted to purchase it. The beneficiaries, including the stepson, executed a Stock Restriction Agreement, which set forth various terms governing the beneficiaries’ disposal of their shares of stock. After the execution of the Stock Restriction Agreement, the stepson again expressed his desire to sell his stock; his stepmother agreed to purchase his interest.

The stepson asked a family financial adviser in Michigan to prepare and deliver a preliminary stock purchase agreement setting forth basic terms to govern the proposed sale to his stepmother. The financial adviser faxed the “Preliminary Stock Purchase Agreement” to the stepmother’s attorney in Florida. All of the other beneficiaries were aware of the preliminary offer to sell the stepson’s interest in the businesses; none of them objected.

The stepmother and stepson executed the Stock Purchase Agreement. In return for the stepson’s stock, the stepmother agreed to pay him $2,000 per week for eight years. Paragraph seven of the agreement provided: “This Agreement is made in the State of Florida and shall be interpreted in accordance with the laws of the State of Florida. Venue shall be had in Broward County Florida and all parties agree to accept service of process by U.S. Mail to the addresses provided above.”

After the agreement was executed, the other beneficiaries, including the stepson, held a meeting without the stepmother. At this meeting, the stepson voted the stock he had already sold to his stepmother to remove her as the managing trustee. As a result of her removal, the remaining beneficiaries seized control of the businesses, which included unlawfully opening new bank accounts and illegally diverting the profits from the businesses away from the stepmother.

The stepmother filed suit against her stepson in Broward County for specific performance, breach of contract, and in-junctive relief. Both she and her stepson are residents of Michigan, but she has a residence in Broward County, Florida. The stepson moved to dismiss the complaint for lack of personal jurisdiction.

The trial court heard the stepson’s motion to dismiss and the stepmother’s motion for temporary injunction. In his motion to dismiss, the stepson argued that the allegations in the complaint did not establish a basis for jurisdiction, pursuant to sections 685.102 and 48.198, Florida Statutes.

The stepson’s supporting affidavit attested that he is a resident of Michigan, does not reside in Florida, and has no contacts within Florida. The stepson does not own, hold, use, possess, or lease any property, maintain an office, or conduct business in Florida. He further attested that he has not entered into any contract in Florida and has not engaged in any acts with the stepmother in Florida. The stepmother did not file a response or affidavit refuting the attestations.

At the hearing, the stepson maintained that he had no contacts with Florida. The stepmother’s counsel argued that the terms of the Stock Purchase Agreement provided for jurisdiction in Florida, and the stepson wanted to execute the agreement in Florida because of an impending divorce.

The trial court denied the motion, stating:

I’ve reviewed the Stock Option Agreement, I’ve reviewed the Motion to Dismiss, I’ve reviewed the exhibits. I’ve also reviewed 685.101 and 102. 101 deals with the choice of laws that would apply. 102 deals with jurisdiction. Parties agreed under the Stock Option Agreement that jurisdiction would lie in Florida in Broward County and the Motion to Dismiss is denied.

The court also entered a temporary injunction. The stepson now appeals the order denying his motion to dismiss and the order granting the temporary injunction.

“Generally, a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. [Wjith respect to the determination of facts, we defer to the trial court. With respect to the application of those facts to the law, we review de novo.” Dev. Corp. of Palm Beach v. WBC Constr., L.L.C., 925 So.2d 1156, 1160 (Fla. 4th DCA 2006) (citations omitted) (internal quotation marks omitted).

Our supreme court has held that “a forum selection clause, designating Florida as the forum, cannot operate as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant.” McRae v. J.D./M.D., Inc., 511 So.2d 540, 542 (Fla.1987). McRae, however, was decided prior to the enactment of sections 685.101 and 685.102, Florida Statutes. Those statutes provide a basis for jurisdiction under particularized circumstances.

The Third District discussed jurisdiction in light of these statutory provisions in Jetbroadband WV, LLC v. MasTec North America, Inc., 13 So.3d 159 (Fla. 3d DCA 2009). “[I]f certain requirements are met, parties may, by contract alone, confer personal jurisdiction on the courts of Florida.” Id. at 162. To satisfy the statutory requirements for personal jurisdiction under section 685.102, the contract, agreement, or undertaking must:

1. include a choice of law provision designating Florida law as the governing law;
2. include a provision whereby the nonresident agrees to submit to the jurisdiction of the courts of Florida;
3. involve consideration of not less than $250,000;
4. not violate the United States Constitution; and
5. either bear a substantial or reasonable relation to Florida or have at least one of the parties be a resident of Florida or incorporated under its laws.

Id. The facts alleged in this complaint fail to satisfy these requirements.

True, the first three factors were satisfied. The Stock Purchase Agreement provided that Florida law would apply to the agreement. The parties’ agreement to the mandatory venue provision constituted consent to jurisdiction in Florida. See Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004). And, the Stock Purchase Agreement involved consideration of not less than $250,000.

However, the complaint and the evidence failed to establish the requisite minimum contacts required by the Constitution. This is the fatal flaw in the stepmother’s jurisdictional quest. “Factors that go into determining whether sufficient minimum contacts exist include the foreseeability that the defendant’s conduct will result in suit in the forum state and the defendant’s purposeful availment of the forum’s privileges and protections.” Taskey v. Burtis, 785 So.2d 557, 559 (Fla. 4th DCA 2001).

Here, the stepson’s affidavit refuted many, but not all, of the allegations contained within the complaint. Although faxing the preliminary draft and final copy of the Stock Purchase Agreement to Florida provided “some” contact, it was insufficient to establish that the stepson had a connection with the State of Florida independent of the forum selection clause to establish the requisite minimum contacts. See id.; see also McRae, 511 So.2d at 548 (finding no basis independent from the forum selection clause to exercise jurisdiction). But see Global Satellite Commc’n Co. v. Sudline, 849 So.2d 466, 467 (Fla. 4th DCA 2003) (finding a Florida forum selection clause coupled with the agreement’s requirement that payment be made in Florida established minimum contacts). The court erred in denying the motion to dismiss.

The stepson also challenges the court’s order granting the temporary injunction. He argues that the court did not have personal jurisdiction over him, failed to properly evaluate the four requirements for a temporary injunction, and refused to conduct a full evidentiary hearing. The stepmother responds that the court had personal jurisdiction over the stepson, evaluated the evidence, and correctly entered the temporary injunction. We agree that without personal jurisdiction over the stepson, the temporary injunction must be vacated.

We review temporary injunctions for an abuse of discretion. Colucci v. Kar Kare Auto. Grp., Inc., 918 So.2d 431, 435 (Fla. 4th DCA 2006).

We first note that the stepson failed to furnish us with an adequate record to review this issue. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979). Nevertheless, the lack of personal jurisdiction undermines the validity of the temporary injunction.

We have reviewed Smith v. Knight, 679 So.2d 359 (Fla. 4th DCA 1996), relied upon by the stepmother to support the entry of the temporary injunction, and find it distinguishable. There, we approved the entry of an ex parte temporary injunction in the absence of personal jurisdiction. Because of the ex parte nature of the proceeding, we found no error in the entry of the temporary injunction because giving notice might have accelerated the alleged injury. Id. at 361. Here, however, the stepson had notice, and specially appeared to contest personal jurisdiction. There was therefore no harm to protect against. We find no merit in the other issues raised concerning the injunction.

We therefore reverse the order denying the stepson’s motion to dismiss for lack of personal jurisdiction, and the order entering the temporary injunction. We remand the case for dismissal of the complaint.

Reversed and Remanded.

DAMOORGIAN, C.J., and WARNER, J., concur.

      . The following facts are taken from the allegations of the complaint.

      . The other beneficiaries, including the stepson, sued the stepmother in Michigan requesting the court: (1) enter a declaratory judgment concerning the stepmother's purchase of shares of stock from the stepson; and (2) void the Stock Purchase Agreement and enjoin the stepmother from enforcing it.


author: PER CURIAM.

text:
    Diego Puertas OLIVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3789.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Michelle Walsh of Michelle Walsh, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Diego Puertas Oliva appeals the summary denial of his rule 3.850 postconviction motion. See Fla. R. Crim. P. 3.850. While we affirm the denial of ground two without comment, the record does not conclusively refute ground one, that counsel was ineffective in failing to advise him of his potential sentencing exposure.

Oliva was initially charged with DUI Manslaughter/Unlawful Blood Alcohol Level, DUI Manslaughter/Impairment, Vehicular Homicide, DUI with Property Damage, and Failure to Obey a Law Enforcement Officer. Oliva alleges that he entered into a negotiated no contest plea to DUI Manslaughter/Impairment and DUI with Property Damage whereby the state agreed to nolle prosse several of the counts and also cap his prison sentence at the bottom of the guidelines, which was 124.65 months, if Oliva pled open. Counsel advised him that he could also seek a downward departure. At no time, states Oliva, was he informed of the possibility of probation in addition to the agreed-upon cap. The court ultimately sentenced him to 124.65 months imprisonment, for DUI Manslaughter, with a 4-year mandatory minimum, to be followed by ⅛.5 years' probation.

At issue is Oliva’s claim that he was not advised of the possibility that he could receive probation in addition to the maximum agreed-upon prison sentence. He relies upon Eggers v. State, 624 So.2d 336 (Fla. 1st DCA 1993), for the proposition that a defendant is entitled to relief when not informed of the probationary component to a sentence when entering a plea. The state, however, urges this court to affirm based upon this being an open plea. At all times during the plea hearing and subsequent proceedings, the agreement was referred to as an open plea. Oliva, however, argues that it was a hybrid plea based upon the agreed sentencing cap, his opportunity to file a downward departure motion, and the state’s having nolle prossed two charges. Although he was unsure how much time the court would choose to impose, his understanding was that it would not exceed 124.65 months pursuant to the agreement. In other words, it was “open” in the sense that the court could consider something less than the cap. Probation was not discussed on the record until the day of sentencing.

Because the record before us does not refute Oliva’s understanding that his maximum sentencing exposure, including probation, could not exceed 124.65 months based upon the agreed-upon sentencing cap, we reverse and remand for the trial court to conduct an evidentiary hearing on this claim.

WARNER, LEVINE and KLINGENSMITH, JJ., concur.


text:
    Kathleen A. RYAN, John D. Ryan, and Jennifer A. Ryan, Appellants, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D13-2155.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Adam I. Sk'olnik of Law Office of Adam I. Skolnik, P.A., Deerfield Beach, for appellants.
    Khari E. Taustin, Jeremy W. Harris and Masimba M. Mutamba, Morris, Laing, Evans, Brock & Kennedy, Chtd., West Palm Beach, for appellee.
   PER CURIAM.

At the trial in this foreclosure case, appellants timely raised the issue of the ap-pellee bank’s standing to bring suit at the time the lawsuit was filed. The record contains a copy of a note with an endorsement in blank; at trial, the note introduced into evidence did not bear an endorsement. The copy of the note bearing an endorsement was filed almost two years after the initial complaint was filed. Appellee did not demonstrate that the endorsement occurred prior to the filing of the initial complaint. Although appellee contends that the bank’s sole witness at trial “pointedly testified” that the bank had the authority to commence a foreclosure action “in 2007 when the initial complaint was filed,” the witness conceded that he was “unsure” whether the bank owned the loan at that time when directly questioned on this point. We therefore reverse the final judgment of foreclosure because the bank failed to establish standing to bring suit. See, e.g., Seruedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010). We find no error on the remaining issues on appeal.

Reversed.

GROSS, GERBER and CONNER, JJ., concur.


text:
    Ande KIBWIKA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3776.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Ande Kibwika, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ande Kibwika appeals an order denying his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800. The motion is legally sufficient and warrants further review. Kibwika pointed to the dates referenced within the probable cause affidavit and the final disposition following his trial. Significantly, he alleged that he was never released on bond. Consequently, Kibwika met his burden to demonstrate entitlement to relief on the face of the record. See Johnson v. State, 60 So.3d 1045, 1051 (Fla.2011). See also Green v. State, 979 So.2d 395, 395-96 (Fla. 2d DCA 2008).

Reversed and remanded for further proceedings.

GROSS, STEVENSON and CONNER, JJ., concur.

      . Appellant’s motion predated the enactment of Florida Rule of Criminal Procedure 3.801.


text:
    FIDELITY NATIONAL TITLE INSURANCE COMPANY, Appellant, v. Carmen J. GROSSO, James M. Chereskin, and Barbara A. Chereskin, individually and on behalf of themselves and all others similarly situated, Appellees.
    No. 4D14-49.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.

      Jerry R. Linscott and Julie Singer Brady of Baker & Hostetler, LLP, Orlando, for appellant.
    John S. Mills and Courtney Brewer of The Mills Firm, P.A., Tallahassee, Jeffrey M. Liggio of Liggio Benrubi, West Palm Beach, Robert J. Axelrod of Pomerantz LLP, New York, and P. Scott Russell of P. Scott Russell P.A., Jacksonville, for appel-lees.
   PER CURIAM.

Affirmed. See Commonwealth v. Higgins, 58 So.3d 280 (Fla. 1st DCA 2011).

GROSS, MAY, JJ., and SCHER, ROSEMARIE, Associate Judge, concur.


author: DAMOORGIAN, C.J. WARNER, J., MAY, J.,

text:
    Ezra MOSTOWICZ, Appellant, v. Scott J. ISRAEL, Sheriff of Broward County, Appellee.
    No. 4D13-2055.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2014.
    Ezra Mostowiez, Montgomery, Alabama, pro se.
    No appearance for appellee.
   DAMOORGIAN, C.J.

Ezra Mostowiez appeals the trial court’s final order of forfeiture striking his pleadings and ordering the forfeiture of $16,725.00 to the Sheriff of Broward County (“Sheriff’). We reverse and remand for further proceedings.

By way of background, Mostowiez was arrested for drug trafficking in August 2010. In conjunction with his arrest, law enforcement seized the $16,725.00 that became the subject of the instant forfeiture proceeding. Mostowiez was charged in state and federal court with multiple offenses arising from this single transaction.

While Mostowicz’s criminal cases were pending, the Sheriff brought a civil action for forfeiture of the seized cash pursuant to the Florida Contraband Forfeiture Act, §§ 932.701-932.706, Florida Statutes (2009). Thereafter, the trial court entered an order finding probable cause to seize the cash and maintain the forfeiture action. See § 932.703(2), Fla. Stat. (2009). Mos-towicz responded by filing a motion to suppress his statements and evidence obtained during his arrest. Although not entirely clear from the motion, it appears that Mostowicz was arguing that if his arrest was illegal, the Sheriff could not establish grounds for the forfeiture by clear and convincing evidence. See § 932.704(8), Fla. Stat.

At the hearing on Mostowicz’s motion to suppress, the Sheriff made an ore tenus motion for entry of judgment of forfeiture. The trial court dismissed Mostowicz’s motion to suppress as moot and granted the Sheriffs motion for forfeiture of the cash. We hold that this was error because the Sheriffs motion was not properly noticed for hearing. See Connell v. Capital City Partners, LLC, 932 So.2d 442, 444 (Fla. 3d DCA 2006) (“[T]he granting of relief, which is not sought by the notice of hearing or which expands the scope of a hearing and decides matters not noticed for hearing, violates due process.”).

Additionally, we note that the Final Order of Forfeiture expressly relied on a plea agreement between Mostowicz and the federal government. The plea agreement, which resolved Mostowicz’s federal charges, included a forfeiture provision whereby Mostowicz waived any rights to the confiscated funds. In light of this agreement, it seems that the federal government may have an interest in the cash. On remand, the trial court should consider the federal government’s potential claim to the cash, as it may preclude the forfeiture of the funds to the Sheriff.

Reversed and Remanded.

WARNER and MAY, JJ., concur specially with opinion.

WARNER, J.,

concurring specially.

I agree with the majority opinion as well as with Judge May’s concurrence. I would also note that the agreement between the federal government and the defendant was not raised in any pleading, as the agreement was not made until shortly before the summary judgment hearing. Therefore, the court would have erred in entering a summary judgment based upon matters not pled.

MAY, J.,

concurring specially.

I agree with the majority opinion, but •write to emphasize the contents of the defendant’s plea agreement with the federal government. Two provisions are worthy of note. First, the defendant did not waive his right to appeal the denial of his motion to suppress in federal court. Second, paragraph 13 of the plea agreement addressed the forfeiture of property. It specifically provided that the defendant would assist the United States government in the forfeiture of any assets, including the $16,725.00, but only to the United States. The State of Florida was never mentioned.


author: KLINGENSMITH, J.

text:
    STATE of Florida, Appellant, v. Avery TOPPS, Appellee.
    No. 4D13-3256.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellee.
   KLINGENSMITH, J.

The State appeals an order excluding Defendant’s statement to a doctor in a hospital emergency room from being introduced at trial. The statement was made to the doctor during an examination while a law enforcement officer was present in the room. The facts herein present an issue of first impression in Florida: may a law enforcement officer testify about a conversation overheard between an arres-tee he is guarding and the psychotherapist treating that person? We find that the officer’s presence at Defendant’s emergency psychiatric evaluation did not compromise the confidentiality of any psychotherapist-patient communications, and did not waive the privilege attached to those statements made during the course of the examination. For the reasons set forth below, we affirm the trial court’s order.

Avery Topps (“Defendant”), was charged with felony cruelty to animals for stabbing a dog to death. After Defendant allegedly stabbed the dog, he attempted to admit himself into the hospital. A sheriffs deputy responded to the hospital in order to arrest Defendant and take him into custody. While at the hospital, Defendant was examined by an emergency room doctor acting in the capacity of a psychotherapist in preparation for either a psychiatric commitment of Defendant or for providing him medical clearance prior to incarceration. The deputy remained present in the room while Defendant was being examined because there was a need to provide safety for the medical staff while Defendant was in custody. A customary part of the evaluation requires the physician to ask a patient what brought them to the hospital. It was in response to this question that Defendant told the physician he stabbed his dog.

Prior to trial, Defendant moved to exclude his statement from being used as evidence, and the court conducted an evi-dentiary hearing on the issue. Defendant argued, among other things, that the statement was privileged because it was made while Defendant was seeking psychiatric care. The State, however, argued that Defendant waived any psychotherapist-patient privilege when his statement was uttered in the presence of a third party, the deputy.

The trial court found that the deputy was present during the examination not only to maintain custody of Defendant, but to ensure that he was receiving the required medical attention, and to guarantee the safety of the medical personnel. Because Defendant himself sought the examination, the deputy’s presence furthered the interests of the patient by allowing the examination to take place even though he was in custody as an arrestee. The court also found that the statement made by Defendant to the psychotherapist was a confidential communication within the definition of section 90.503 of the Florida Statutes, and that the statement was not intended to be disclosed to anyone beyond the doctor or the deputy, whose presence helped facilitate the examination. After the hearing, the trial court granted Defendant’s motion to exclude the statement, finding it was privileged under section 90.503, not waived by the deputy’s presence, and not the product of a custodial interrogation. This appeal followed.

Although the general rule is that testimony of a third party who overhears a confidential communication is admissible, Proffitt v. State, 315 So.2d 461, 464 (Fla. 1975), the presence of a third party witness to a statement made by a patient to a psychotherapist does not automatically waive the privilege. In fact, the plain wording of the statute clearly anticipates that the presence of third parties may be necessary to effectuate communication in the context of a therapeutic encounter, or to otherwise further the patient’s interests. Section 90.503(l)(c)l.-3., Florida Statutes (2012), provides:

(l)(c) A communication between psychotherapist and patient is “confidential” if it is not intended to be disclosed to third persons other than:

1.Those persons present to further the interest of the patient in the consultation, examination, or interview.
2. Those persons necessary for the transmission of the communication.
3. Those persons who are participating in the diagnosis and treatment under the direction of the psychotherapist.

(Emphasis added). Subsection one of the comments to section 90.503 states:

A communication is “confidential” if made in the interest of treatment by the psychotherapist and not intended for general dissemination. The same considerations affecting confidentiality in the lawyer-client privilege apply. This subsection allows the psychotherapist to enlist the assistance of persons necessary for adequate treatment without destroying the concept of confidentiality.[]

To determine whether the presence of a third party destroys the privilege, a court must consider whether, in light of all the surrounding circumstances and particularly the occasion for the presence of the third person, the communication was intended to be confidential and complied with the other provisions of the statute. For the privilege to have meaning, it must necessarily extend to such individuals whose physical presence, along with the therapist and patient, are required for providing mental health treatment. Under the circumstances presented here, the deputy’s presence during the examination was necessary “for the transmission of the communication” under section 90.503(l)(c)2. See, e.g., Gerheiser v. Stephens, 712 So.2d 1252, 1254 (Fla. 4th DCA 1998). Defendant’s statements were required for diagnosis and treatment because the examination was psychiatric in nature and sought to ascertain Defendant’s psychological condition. As such, Defendant had a reasonable expectation of confidentiality in the communication. Because the communication between Defendant and the psychotherapist could not have reasonably occurred without the officer’s involvement and physical proximity, the deputy was a necessary intermediary in Defendant’s mental health care.

This court has found in other cases that the presence of third parties does not automatically waive the privilege in the context of attorney-client discussions, even where the involvement of third parties was by the choice of a party and not through some form of coercion. See Witte v. Witte, 126 So.3d 1076, 1078 (Fla. 4th DCA 2012) (the “presence of a close family member does not, in and of itself, waive the attorney-client privilege,” and “cannot be determined as a matter of law based on the percentage of time a third party was present.”); see also RC/PB, Inc. v. Ritz-Carlton Hotel Co., 132 So.3d 325, 326-27 (Fla. 4th DCA 2014) (addressing the role of third persons in attorney-client communications where the client is a corporation); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 504.08[3] (Joseph M. McLaughlin, 2d ed. 2006) (presence of a parent during communications between a psychotherapist and a minor child will not ordinarily prevent the privilege from attaching).

While the psychotherapist-patient privilege, like any privilege, can be expressly waived, McKinlay v. McKinlay, 648 So.2d 806, 810 (Fla. 1st DCA 1995), such a waiver can be implied from any conduct or disclosure that is inconsistent with the maintenance of the privilege. Generally, communications made in the presence of third parties, whose presence is known to the defendant, are not privileged from disclosure. For example, the voluntary, known presence of an unnecessary third party who can overhear a conversation has been found to be a manifestation of intent to make a non-confidential communication. See Proffitt, 315 So.2d at 464-65 (spousal privilege waived where husband and wife knew or should have known their loud conversation would be overheard by a nearby third party). Therefore, in considering whether a patient’s communication with his or her therapist in the presence of a third party is privileged, the critical factor to be considered is whether the communication was made by the patient to a psychotherapist, or his or her agent, for the purpose of obtaining either diagnosis or treatment from the therapist, and with the reasonable expectation by the patient that the statement is being made in confidence. § 90.507, Fla. Stat. (2012).

Here, the presence of the deputy during the mental health examination was not voluntary. By all accounts his presence in the room was mandatory, and was neither optional nor subject to being declined by Defendant. Defendant’s ability to be examined and treated by the psychotherapist at the hospital was conditioned on the fact that law enforcement remain within the room at all times. Defendant did not have the option or ability to request a private session with the doctor. Where the presence of a third party who overheard the statements is required and involuntary, the privilege cannot be said to have been waived by the officer’s presence. To find a waiver of the privilege under these circumstances would contradict the underlying purpose of privileged communications: “to protect confidential communications between the parties and to encourage people seeking treatment or advice to speak freely on all matters.” Segarra, 932 So.2d at 1160. Such “confidentiality is essential to the conduct of successful psychiatric care.” Attorney ad Litem for D.K. v. Parents of D.K., 780 So.2d 301, 306 (Fla. 4th DCA 2001) (citation omitted).

Admitting this statement into evidence over objection would effectively mean that an individual in custody must forego his right against self-incrimination to obtain necessary medical diagnosis and treatment. Requiring the relinquishment of this constitutional right as a condition of medical diagnosis and treatment for persons placed under arrest or otherwise in custody would be unconscionable. If the privilege were to be nullified by the mere presence of a law enforcement officer, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances giving rise to the need for treatment will probably result in prosecution or litigation. Given these facts, a person in Defendant’s position might not receive appropriate treatment, knowing they risked losing their confidentiality by answering questions posed to them by their psychotherapist. The result of adopting the State’s argument would be an increased risk that troubled individuals might avoid treatment that would otherwise help them better manage their behavior. This court rejects that position.

Therefore, the trial court’s order excluding Defendant’s statements to his psychotherapist is affirmed.

Affirmed.

TAYLOR and LEVINE, JJ., concur.

      . Florida Rule of Appellate Procedure 9.140(c)(1)(B) permits a State appeal from an order "suppressing before trial confessions, admissions, or evidence obtained by search and seizure.” In this case, the State has challenged an evidentiary ruling after Defendant moved to suppress the statement as privileged under section 90.503, Florida Statutes. Although this was not a "suppression order” for consideration under the law regarding searches and seizures, rule 9.140(c)(1)(B) has been broadly interpreted as authorizing a State appeal from a pretrial order "excluding” an admission under the evidence code. See State v. Brea, 530 So.2d 924 (Fla. 1988) (State appeal from a pretrial order excluding a co-conspirator statement was authorized because it was a type of "admission”); State v. Gad, 27 So.3d 768 (Fla. 2d DCA 2010) (State appeal from an order excluding the defendant’s apology as irrelevant and unduly prejudicial was authorized).

      . Similar language regarding the confidentiality of communications made in the presence of certain third parties can be found in many of the Florida privileges, i.e., lawyer-client privilege (§ 90.502(l)(c)l., 2.), sexual assault counselor-victim (§ 90.5035(l)(e)l., 2., 3.), domestic violence advocate-victim (§ 90.5036(l)(d)l„ 2.), clergy (§ 90.505(l)(b)), and accountant-client (§ 90.5055(l)(c)l., 2.). Such language is missing from the provisions of both the journalist’s privilege (§ 90.5015) and the spousal privilege (§ 90.504).

      . In analyzing the breadth of the privilege and scope of the waiver, courts have often analogized the psychotherapist-patient privilege to the attorney-client privilege. The Supreme Court, in Jaffee v. Redmond, 518 U.S. 1, 10, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), justified the psychotherapist-patient privilege in terms parallel to those used for the attorney-client privilege noting that, “[ljike the spousal and attorney-client privileges, the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust.’ ” “Effective psychotherapy,” the court explained, “depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.” Id.; see also Segarra v. Segarra, 932 So.2d 1159, 1160 (Fla. 3d DCA 2006) (citing Redding v. Va. Mason Med. Ctr., 75 Wash.App. 424, 878 P.2d 483 (1994), and Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (1981)); Koch v. Cox, 489 F.3d 384, 390 (D.C.Cir.2007) (recognizing that the Jaffee Court closely analogized the attorney-client privilege to the psychotherapist-patient privilege and held them to be substantially similar); In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 76 (1st Cir.1999) ("The Jaffee Court justified the psychotherapist-patient privilege in terms parallel to those used for the attorney-client privilege.”); Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D.Cal.2003) ("In Jaffee, the Supreme Court repeatedly analogized the psychotherapist-patient privilege to the attorney-client privilege. There is good reason, therefore, to treat the two privileges similarly"); Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D.I11.1999) (citing Jaf-fee, 518 U.S. at 10, 116 S.Ct. 1923) (noting that the Supreme Court in Jaffee found the attorney-client privilege "to be analogous to the psychotherapist-patient privilege"); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (D.Mass.1997) (recognizing the close analogy the Jaffee Court made between the attorney-client privilege and the psychotherapist-patient privilege).


text:
    U’Dreka ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0658.
    District Court of Appeal of Florida, First District.
    July 30, 2014.
    Opinion filed July 30, 2014.
    Rehearing Denied July 30, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Lauren L. Brudnicki, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013) (reaffirming holding in Gonzalez v. State, 101 So.3d 886

(Fla. 1st DCA 2012), that Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) did not apply retroactively to defendant’s postconviction motion, and certifying question to Florida Supreme Court as a matter of great public importance).

PADOVANO, CLARK, and SWANSON, JJ., concur.


text:
    L.R.N. a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2868.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

The State concedes that this matter must be reversed and remanded for a new trial/probation violation hearing because necessary parts of the transcript could not be reconstructed. Jackson v. State, 984 So.2d 668, 669 (Fla. 4th DCA 2008); Thomas v. State, 828 So.2d 456, 457 (Fla. 4th DCA 2002). We accept the concession of error and reverse and remand for further proceedings.

Reversed and remanded.

TAYLOR, LEVINE and FORST, JJ., concur.


text:
    Darren KLEMENCIC and Niurka Klemencic, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, Appellee.
    No. 4D13-3052.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2014.
    Alexis Fields and Kendrick Almaguer of The Ticktin Law Group, P.A., Deerfield Beach, for appellants.
    William L. Grimsley of McGlinchey Stafford, Jacksonville, for appellee.
   CONCESSION OF ERROR

PER CURIAM.

Defendants appeal a final judgment of mortgage foreclosure in favor of U.S. Bank (“appellee”). Appellee concedes that the evidence presented at trial was insufficient to meet its burden of proving standing to enforce the note it introduced. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (finding that a “plaintiff must prove that it had standing to foreclose when the complaint was filed.” (citation omitted)). Because appellee failed to prove it had standing to foreclose, we reverse the final judgment and remand for the trial court to enter an involuntary dismissal of the complaint.

Reversed and Remanded with directions.

STEVENSON, FORST and KLINGENSMITH, JJ., concur.


author: JOHNSON, C.J.

text:
    STATE of Louisiana v. Shon WILLIAMS.
    No. 2013-OK-1017.
    Supreme Court of Louisiana.
    June 20, 2014.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 364-508, Tracey Flemings Davillier, J.; to the Court of Appeal, Fourth Circuit, No. 2013-K-0591.

1 iGranted. The district court erred in failing to grant the state’s re-urged motion to stay the re-sentencing hearing. The decision in Miller v. Alabama, 567 U.S.-, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) does not apply retroactively in the defendant’s case. See State v. Tate, 12-2763 (La. 11/5/13); 130 So.3d 829, cert, denied, Tate v. Louisiana, No. 12-8915, — U.S. —, 134 S.Ct. 2663,189 L.Ed.2d 214, 2014 WL 834279 (May 27, 2014).

JOHNSON, C.J., dissents and would deny the writ with reasons.

JOHNSON, C.J.

dissents and would deny the writ.

hi respectfully dissent. On June 25, 2012, the United States Supreme Court issued an opinion in Miller v. Alabama, which held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, this court held that Miller does not retroactively apply to juvenile offenders whose life sentences were handed down before the Supreme Court issued its opinion. I dissented from this court’s ruling in Tate, finding that Miller announced a new rule of criminal procedure that is substantive and consequently should apply retroactively. For the same reasons expressed in my dissent in Tate, I must dissent in this case.


author: McClendon, j. WHIPPLE, C.J.,

text:
    Brian Louis ESCHETE v. Desirea R. ESCHETE.
    No. 2012-CA-2059.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 27, 2014.

      Mark D. Plaisance, David W, Ardoin, Matthew D. Ory, Thibodaux, LA, for Plaintiff/Appellee, Brian Louis Eschete.
    Rebecca N. Robichaux, Raceland, LA, for Defendant/Appellant, Desirea R. Es-chete.
    Before WHIPPLE, C.J., PARRO, McClendon, welch and HIGGINBOTHAM, JJ.
   McClendon, j.

pin this appeal, Desirea R. Eschete seeks review of a judgment declaring an act of donation null and void for lack of form. For the following reasons, we affirm.

FACTS

Brian Louis Eschete filed a petition for divorce on April 23, 2010, seeking a divorce from Desirea R. Eschete, appellant herein. On November 8, 2010, Mr. Eschete signed an act of donation, donating his one-half interest in the parties’ matrimonial home to Ms. Eschete. On June 13, 2011, a judgment of divorce was rendered. Six months later, on December 14, 2011, Mr. Eschete filed a petition for nullity, alleging the act of donation was absolutely null.

The petition for nullity stated that the act of donation was signed at the law office of Rebecca N. Robichaux, who was Ms. Eschete’s attorney in the divorce proceedings, and further alleged that the document should be declared null and void as it was signed outside the presence of a notary public, the two required witnesses, and the donee. Attached to the petition was a copy of the act of donation that Mr. Es-chete received after signing. This copy reflected only his and Ms. Eschete’s signatures, with the signature lines for the notary public and witnesses left blank. The petition also included a copy of the fully executed act of donation that was later filed in the public records, which was signed by Rebecca N. Robichaux, as notary public, and Connie Bourgeois and Ash-leigh Smith, as witnesses.

At the trial on the petition for nullity, the trial court heard testimony from Mr. and Ms. Eschete, Ms. Robichaux, Ms. Bourgeois, and Ms. Smith. The trial court then rendered judgment, declaring the November 8, 2010 act of donation null and void because it was not executed “before” a notary public and two witnesses and it was not signed by the donor and by the donee at the same time and place.

On appeal, Ms. Eschete contends that the trial court erred: (1) in finding that Mr. Eschete did not sign in the presence of a notary and two witnesses; (2) in finding that Mr. Eschete offered sufficient evidence to overcome the legal presumption of the genuineness of an authentic act; and (3) in applying the rules governing interspousal | ^donations, which state that the act of donation shall be signed by the donor and donee at the same time and place.

ANALYSIS

Assignments of Error 1 and 2

Louisiana Civil Code article 1541 requires that donations inter vivos be done by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law. An “authentic act” is defined by LSA-C.C. art. 1833 as a “writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.” A material deviation from the manner of execution prescribed by the codal article governing authentic acts will be fatal to the act which purports on its face to be authentic. Hardin v. Williams, 468 So.2d 1302, 1304 (La. App. 1 Cir.1985), ajfd, 478 So.2d 1214 (La. 1985). However, one seeking to invalidate an apparently authentic act must present strong and convincing proof of such magnitude as to overcome the presumption of verity of notarial acts. Meltzer v. Meltzer, 95-0551, 95-0552 (La.App. 4 Cir. 9/28/95), 662 So.2d 58, 61, writ denied, 95-2616 (La.1/5/96), 666 So.2d 293.

In the present case, all of the parties agree that the document was signed by the donor, the donee, a notary, and two witnesses. All parties also agree that it was a donation of immovable property, not a sale. The issue with regard to the first and second assignments of error is whether the act of donation was “executed before” a notary public and “in the presence” of two witnesses.

Conflicting testimony was presented at the trial of this matter regarding the events surrounding Mr. Eschete’s signing of the act of donation. Mr. Eschete candidly admitted that he signed the act of donation and testified that he signed the document at Ms. Robichaux’s office around 10:30 a.m. on November 8, 2010 in the presence of Ms. Robichaux’s secretary, Connie Bourgeois. Mr. Eschete claimed that he did not see Ms. Robichaux or Ms. Smith when he was signing the document.

|4In contrast, Ms. Robichaux, Ms. Bourgeois, and Ms. Smith testified that Mr. Eschete signed the document around 12:00 p.m., during the lunch hour. Ms. Robi-chaux, Ms. Bourgeois, and Ms. Smith all specifically testified that Mr. Eschete signed the document on a clipboard in the waiting room of the law office, after reviewing it with Ms. Bourgeois.

Ms. Robichaux testified that she was on the telephone in Ms. Bourgeois’ office area, twelve feet away from the waiting room with the open door, and she could see Mr. Eschete as he signed. Ms. Robi-chaux testified that “I don’t know what [Ms. Bourgeois] brought out for him to sign,” but that she “saw him signing it.” However, she indicated that “[t]he protocol is we go out with a clipboard and the document is on the clipboard. I assume that’s ... what it was.”

Ms. Smith acknowledged that she never went into the waiting room when Mr. Es-chete was signing the document, although she understood the importance of actually “being there” and seeing the signature on a notarized document. However, Ms. Smith testified that she could see Mr. Es-chete while she was making copies at the copy machine in Ms. Bourgeois’ office area.

Ms. Bourgeois acknowledged that no one was in the waiting room with her when Mr. Eschete signed the act of donation.

She further testified that if Ms. Robichaux and Ms. Smith were in the adjoining room, they could have seen the motion made by Mr. Eschete in signing, but they would not be able to see his signature on the document.

While the trial court appears to have accepted the testimony of Ms. Robi-chaux and Ms. Smith as credible and that they were, in fact, in an adjoining office with the door open with Ms. Robichaux on the phone and Ms. Smith making copies, the trial court found that “the writing was not executed before Ms. Robichaux and that ... Mr. Eschete was not in the presence of Ms. Smith at the signing of the document.” Under these specific facts, we cannot conclude that the trial court erred in finding that the act did not meet the requirements of an authentic act as contemplated by LSA-C.C. art. R1833. Clearly, the physical separation prevented the notary and one of the witnesses from observing Mr. Eschete affix his signature onto the act of donation.

As the trial court obviously recognized, the purpose of the authentic act requirements is to ensure the validity of a signature on a document and that the person whose name appears thereon is the person who actually signed the document. The notary and witnesses attest to seeing the party sign the document. Zamjahn v. Zamjahn, 02-871 (La.App. 5 Cir. 1/28/03), 839 So.2d 309, 315, writ denied, 03-0574 (La.4/25/03), 842 So.2d 410. The notary and both witnesses are not required to sign the document at the same time as all parties to the contract, but they must be present to witness the contracting parties’ signatures. Brumfield, v, Brumfield, 457 So.2d 763 (La.App. 1 Cir.1984).

Last, we note that while we have reviewed the case of Finance Security Co. v. Williams, 42 So.2d 902 (La.App. 1 Cir. 1949), cited and relied on by Ms. Eschete, we find the case to be distinguishable from the present matter. In that case, there was no question that the document was signed before a notary and the witnesses were called in by the notary while the parties were still present. Further, while this court recognized in Finance Security Co. that substantial compliance may be sufficient to meet the authentic act requirements, the Louisiana Supreme Court in Hardin recognized that the requirements for an authentic act must be strictly followed. See Bonnett v. Mize, 556 So.2d 228, 233 (La.App. 2 Cir.), writ denied, 559 So.2d 1360 (La.1990). As such, the “substantial compliance” standard for authentic acts enunciated by this court in Finance Sec. Co. may no longer be viable.

Accordingly, we find no merit in assignment of error numbers one and two.

I ^CONCLUSION

The judgment of the trial court is hereby affirmed. Costs of this appeal are assessed to appellant, Desirea R. Eschete.

AFFIRMED.

WHIPPLE, C.J.,

dissenting.

| )An authentic act in Louisiana is presumed to be valid, and this presumption is established in the interest of public order, to maintain peace among men and to prevent contestations concerning the proof or evidence of their conventions. One seeking to invalidate an apparently authentic act must present strong and convincing proof of such magnitude as to overcome the presumption of verity of notarial acts. Meltzer v. Meltzer, 95-0551, 95-0552 (La. App. 4th Cir. 9/28/95), 662 So.2d 58, 61, writ denied, 95-2616 (La.1/5/96), 666 So.2d 293.

Accordingly, the issue currently before us is whether the evidence presented by Mr. Eschete constitutes strong and convincing proof that he did not sign the act of donation “before a notary public” and “in the presence of two witnesses,” as contemplated by LSA-C.C. art. 1833. I find that Mr. Eschete failed to satisfy this required high burden of proof and, therefore, I respectfully dissent from the majority herein.

In Hardin v. Williams, 468 So.2d 1302 (La.App. 1st Cir.), affd by, 478 So.2d 1214 (La.1985), this Court addressed the meaning of “before a notary public” and “in the presence of two witnesses.” In Hardin, the notary testified that he did not see either the witnesses or the donor sign the act of donation; rather, the draftsman brought the document out for the notary to sign and the draftsman represented that he witnessed the donor’s and witnesses’ signatures to the act in an adjoining room. This Court found that the act of donation was null and void because the requirements of an authentic act were not complied with. Specifically, this Court stated, “We hold, as a matter of law, that unless the notary and attesting | ¿witnesses are able to visually observe each other and the donor during the execution of the act of donation inter vivos, the instrument is not entitled to the status of authentic act.” Hardin, 468 So.2d at 1304. (Emphasis added).

Unlike the facts in Hardin, the notary and witnesses in this case all testified that they saw, i.e., “visually observed,” Mr. Es-chete sign the document. Ms. Robichaux readily admitted that she was on the telephone in Ms. Bourgeois’ office when Mr. Eschete signed the act of donation, and Ms. Smith readily admitted that she was making copies at a copy machine in Ms. Bourgeois’ office area when Mr. Eschete signed the document. However, Ms. Robi-chaux and Ms. Smith also provided lengthy explanations as to the law office layout, noting, in particular, the small size of the office area and the fact that they were able to see Mr. Eschete sign the document despite being engaged with another task in the area adjoining the area where he was signing. Ms. Robichaux, Ms, Smith, and Ms. Bourgeois testified that Ms. Bourgeois’s desk area is adjacent to the waiting room, that the door was open between the waiting room and desk area, and that someone at the desk area could see into the waiting room. Further, there was testimony that Ms. Robichaux’s office policy is that she keeps the door open between the desk area and the waiting room when an opposing party who is not represented by counsel, such as Mr. Eschete, comes to the law office. Notably, the distance between the desk area and the furthest point in the waiting room was measured on the morning of the trial, and the total distance was shown to be only twelve (12) feet. Under these circumstances, I am unable to find that Mr. Eschete, who undisputedly signed the act, nonetheless established, by “strong and convincing proof’ that the act was signed outside the presence of the notary and the witnesses.

Instead, the testimony and the record show that the notary and the two witnesses visually observed Mr. Eschete when he signed the act of donation. The only evidence offered to dispute the notary and two witnesses’ testimony that they 13saw Mr. Eschete execute the document was the self-serving testimony of Mr. Es-chete. Given the burden imposed on him as the party challenging his authentic act, I am unable to find, as a matter of law, that Mr. Eschete’s testimony alone is sufficient to overcome the strong presumption of validity of the authentic act. Therefore, I respectfully disagree from the majority and find that the trial court erred in concluding that the act of donation was null and void for failure to meet the requirements of LSA-C.C. art. 1833.

Moreover, I also find that the trial court erred in declaring the act of donation null and void for failing to meet the requirements of LSA-C.C. art. 1747. Louisiana Civil Code article 1747 adds additional requirements for executing inter vivos inter-spousal donations, stating that such acts must state that the donor makes the donation in contemplation of his prospective marriage or in consideration of his present marriage, as the case may be, and shall be signed at the same time and at the same place by the donor and by the donee.

All parties herein agree that the act of donation was not signed at the same time by Mr. and Ms. Eschete. Nevertheless, I question whether the subject act of donation is even governed by LSA-C.C. art. 1747. Also, assuming this act of donation is subject to the additional requirements of LSA-C.C. art. 1747, I do not find that the failure to meet said requirements renders the act of donation null and void. Article 1747 must be read in conjunction with the other code articles in the Civil Code chapter governing inter vivos interspousal donations, including, specifically, LSA-C.C. art. 1744, which provides in pertinent part:

A donation inter vivos by a person to his future or present spouse in contemplation of or in consideration of their marriage that is not |4made in accordance with the provisions of this Chapter shall be governed solely by the rules applicable to donations inter vivos in general. (Emphasis added)

Accordingly, in my view, the subject act of donation is not null and void for failure to meet the additional requirements of LSA-C.C. art. 1747, given that the act of donation is valid under - LSA-C.C. art. 1838, the code article which generally governs authentic act requirements for inter vivos donations.

For the foregoing reasons, I respectfully dissent.

      . While we recognize that the trial court, in its oral reasons, also alluded to “multitasking” and that "one must not multitask in performing an authentic act,” we find it unnecessary to address this issue on appeal. Appeals are taken from judgments, not written reasons for judgment. Wooley v. Luck-singer, 09-0571 (La.4/1/11), 61 So.3d 507, 572.

      . Given our reasoning herein, we pretermit: consideration of the issue of whether this act of donation is governed by LSA-C.C. art. 1747 and invalid thereunder as it was not signed at the same time and same place by the donor and by the donee.

      . In so concluding, I again note that Mr. Eschete does not dispute that he signed the act of donation. I find the following statement, albeit contained in the dissenting opinion in American Bank & Trust Co. in Monroe v. Carson Homes, Inc., 316 So.2d 732, 736 (La.1975) to be persuasive, as follows: "The party executing the acts made a judicial acknowledgment that the acts were his. Juridical acts can not be more authentic than are these.”

      . Upon concluding that the act of donation was invalid under LSA-C.C. art. 1833, the majority pretermitted consideration of this issue.