text:
    In re AMENDMENTS TO the FLORIDA RULES OF CIVIL PROCEDURE.
    No. SC13-2384.
    Supreme Court of Florida.
    Dec. 11, 2014.
    Kevin Bayly Cook, Chair, Civil Procedure Rules Committee, Roger Towers, P.A., Ponte Vedra Beach, FL; Thomas Howell Bateman, III, Past Chair, Civil
    Procedure Rules Committee, Messer Ca-parello, P.A., Tallahassee, FL; John F. Harkness, Jr., Executive Director and Ellen H. Sloyer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar’s Civil Procedure Rules Committee (Committee) has filed a “fast-track” out-of-cycle report proposing amendments to the Florida Rules of Civil Procedure in response to statutory changes. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction.

The Committee proposes amendments to Florida Rule of Civil Procedure 1.110 and forms 1.944, 1.996(a), and 1.996(b). The Committee also proposes new rule 1.115 and several new forms. According to the report, the amended and new rules and forms are in response to legislation regarding mortgage foreclosure actions. Chapter 2013-173, Laws of Florida, created new section 702.015, Florida Statutes. This statutory provision sets forth new pleading requirements for mortgage foreclosure complaints intended to “expedite the foreclosure process by ensuring initial disclosure of a plaintiff’s status and the facts supporting that status, thereby ensuring the availability of documents necessary to the prosecution of the case.” Ch.2013-173, § 3, Laws of Fla. Chapter 2013-173 also amended section 702.10, Florida Statutes (2012), relating to orders to show cause why a judgment of foreclosure should not be entered and hearings held thereon. Ch.2013-173, § 6, Law of Fla. The legislation became effective on June 7, 2013. Ch.2013-173, § 10, Laws of Fla. The new pleading requirements are effective as to cases filed on or after July 1, 2013, and the new show cause provisions apply to cases pending on the effective date of the act. Ch.2013-173, § 8, Laws of Fla.

After considering the proposed amendments and reviewing the relevant legislation, we amend the Florida Rules of Civil Procedure and forms as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall take effect immediately upon the release of this opinion. Because the amendments were not published for comment prior to adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

RULE 1.110. GENERAL RULES OF PLEADING

(a) [No change]

(b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to pray for general relief.

When filing an action for- foreclosure-of-a mortgage-on-residential real property-the complaint shall be verified. When verification-of-a-document is required, the document filed shall include-an-oath, affirmation, or the following statements “Under penalty of-perjury, I declare that I have-read the foregoing, - and — the—fac-ts alleged-therein are true and correct-to-the best-of-my knowledge and-beliefi^

(c)-(h) [No change]

Committee Notes

1971 Amendment. Subdivision (h) is added to cover a situation usually arising in divorce judgment modifications, supplemental declaratory relief actions, or trust supervision. When any subsequent proceeding results in a pleading in the strict technical sense under rule 1.100(a), response by opposing parties will follow in the same course as though the new pleading were the initial pleading in the action. The- time for answering and authority for defenses under rule 1.140 will apply. The last sentence exempts post judgment motions under rules 1.480(c), 1.530, and 1.540, and similar proceedings from its purview.

2014 Amendment. The last two paragraphs of rule 1.110(b) regarding pleading requirements for certain mortgage foreclosure actions were deleted and incorporated in new rule 1.115.

RULE 1.115. PLEADING MORTGAGE FORECLOSURES

(a) Claim for Relief. A claim for relief that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives designed principally for occupation by one to four families which secures a promissory note, must: (1) contain affirmative allegations expressly made by the claimant at the time the proceeding is commenced that the claimant is the holder of the original note secured by the mortgage; or (2) allege with specificity the factual basis by which the claimant is a person entitled to enforce the note under section 673.3011, Florida Statutes.

(b) Delegated Claim for Relief. If a claimant has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the claim for relief shall describe the authority of the claimant and identify with specificity the document that grants the claimant the authority to act on behalf of'the person entitled to enforce the note. The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy of it. The term includes any renewal, replacement, consolidation, or amended and restated note or instrument given in renewal, replacement, or substitution for a previous promissory note. The term also includes a transferable record, as defined by the Uniform Electronic Transaction Act in section 668.50(16), Florida Statutes.

(c) Possession of Original Promissory Note. If the claimant is in possession of the original promissory note, the claimant must file under penalty of perjury a certification contemporaneously with the filing of the claim for relief for foreclosure that the claimant is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.

(d) Lost, Destroyed, or Stolen Instrument. If the claimant seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the claim for relief. The affidavit must: (1) detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action; (2) set forth facts showing that the claimant is entitled to enforce a lost, destroyed, or stolen instrument pursuant to section 673.3091, Florida Statutes; and (3) include as exhibits to the affidavit such copies of the note and the allonges to the note, audit reports showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the note as may be available to the claimant. Adequate protection as required under section 673.3091(2), Florida Statutes, shall be provided before the entry of final judgment.

(e) Verification. When filing an action for foreclosure on a mortgage for residential real property the claim for relief shall be verified by the claimant seeking to foreclose the mortgage. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:

“Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

FORM 1.944(a). MORTGAGE FORECLOSURE

(When location of original note known)

COMPLAINT

Plaintiff, A. B., sues defendant, C. D., and alleges:

1. This is an action to foreclose a mortgage on real property in .County, Florida.

2. On.(date)., defendant executed and delivered a promissory note and a mortgage securing payment of the note to .(plaintiff or plaintiffs predecessor. The mortgage was recorded on .(date)., in Official Records Book .at page.of the public records of.County, Florida, and mortgaged the property described in the mortgage then owned by and in possession of the mortgagor, a copy of the mortgage containing- a copy of and the note being attached.

3.Plaintiff-owns and-holds the note and-mortgage. (Select a, b, or c)

(a) Plaintiff is the holder of the original note secured by the mortgage.

(b) Plaintiff is a person entitled to enforce the note under applicable law because .(allege specific facts).

(c) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note. The document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note_is/are_as_follows

4. The property is now owned by defendant who holds possession.

5. Defendant has defaulted under the note and mortgage by failing to pay the payment due ..... (date)., and all subsequent payments .(allege other defaults as applicable).

6. Plaintiff declares the full amount payable under the note and mortgage to be due.-

7. Defendant owes plaintiff $...that is due on principal on the note and mortgage, interest from .(date)., and title search expense for ascertaining necessary parties to this action.

8'. Plaintiff is obligated to pay plaintiffs attorneys a reasonable fee for their services. Plaintiff is entitled to recover its attorneys’ fees under.(allege statutory and/or contractual 'bases, as applicable).

WHEREFORE, plaintiff demands judgment foreclosing the mortgage, for costs (and, when applicable, for attorneys’ fees), and, if the proceeds of the sale are insufficient to pay plaintiff’s claim, a deficiency judgment.

NOTE: An action for foreclosure of a mortgage on residential real property must contain an oath, affirmation, or the following statement as required by rule 1.115(e).

VERIFICATION

Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.

Executed on this.(date). . . . .

[Person Signing Verification]

CERTIFICATION OF POSSESSION OF ORIGINAL NOTE

The undersigned hereby certifies:

1. That plaintiff is in possession of the original promissory note upon which this action is brought.

2. The location of the original promissory note is: .(location). 3. The name and title of the person giving the certification is: .(name and title). 4. The name of the person who personally verified such possession is: .(name). 5. The time and date on which possession was verified were: ..... (time and date).

6. Correct copies of the note (and, if applicable, all endorsements, transfers, al-longes, or assignments of the note) are attached to this certification.

7. I give this statement based on my personal knowledge.

Under penalties of perjury, I declare that I have read the foregoing Certification of Possession of Original Note and that the facts stated in it are true.

Executed on.(date).

[Person Signing Verification]

NOTE: This form is for installment payments with acceleration. It omits allegations about junior encumbrances, unpaid taxes, unpaid insurance premiums, other nonmonetary defaults, and for a receiver. They must be added when properappropriate. CopiesA copy of the note and mortgage must be attached. This form may require modification. This form is designed to incorporate the pleading requirements of section 702.015, Florida Statutes (2013) and rule 1.115. It is also designed to conform to section 673.3011, Florida Statutes (2013), except that part of section 673.3011, Florida Statutes, which defines a person entitled to enforce an instrument under section 673.3091, Florida Statutes. See form 1.944(b). Pursuant to section 702.015, Florida Statutes (2013), a certification of possession of the original promissory note must be filed contemporaneously with the Complaint (form 1.944(a)) or, in the event that the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit setting forth the facts required by law must be attached to the complaint (form 1.944(b)).

FORM 1.944(b). MORTGAGE FORECLOSURE

(When location of original note unknown)

COMPLAINT

Plaintiff, ABC, sues defendant, XYZ, and states:

1. This is an action to foreclose a mortgage on real property in.County, Florida.

2. On.(date)., defendant executed and delivered a promissory note and a mortgage securing the payment of said note to .(plaintiff or plaintiffs predecessor) . I_The mortgage was recorded on .(date)., in Official Records Book.at page.of the public records of.County, Florida, and mortgaged the property described therein which was then owned by and in possession of the mortgagor. A copy of the mortgage and note are attached to the affidavit which is attached hereto as Composite Exhibit “1”; the contents of the affidavit are specifically incorporated by reference.

3. Plaintiff is not in possession of the note but is entitled to enforce it.

4. (select a, b, c, or d) Plaintiff cannot' reasonably obtain possession of the note because

(a) the note was destroyed.

(b) the note is lost.

(c) the note is in the wrongful possession of an unknown person.

(d) the note is in the wrongful possession of a person that cannot be found or is not amenable to service of process.

5. (select a, b, c, or d)

(a) At the time the original note was lost, plaintiff was the holder of the original note secured by the mortgage.

(b) At the time the original note was lost, plaintiff was a person entitled to enforce the note under applicable law because .(allege specific facts).

(c) Plaintiff has directly or indirectly acquired ownership of the note from a person who was entitled to enforce the note when loss of possession occurred as follows: .(allege facts as to transfer of ownership).

(d) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, and the document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note . is/are_as_follows ...(attach documents if not already attached).

6. Plaintiff did not transfer the note or lose possession of it as the result of a lawful seizure.

7. The property is now owned by defendant who holds possession.

8. Defendant has defaulted under the note and mortgage by failing to pay the payment(s) due --(date(s))., and all subsequent payments ..... (identify other defaults as applicable). 9. Plaintiff declares the full amount payable under the note and mortgage to be due.

10. Defendant_owes_plaintiff $.that is due on principal on the note and mortgage, interest from .(date)., and title search expense for ascertaining necessary parties to this action.

11. Plaintiff is obligated to pay its attorneys a reasonable fee for their services. Plaintiff is entitled to recover its attorneys’ fees for prosecuting this claim pursuant to .(identify statutory and/or contractual bases, as applicable).

WHEREFORE, Plaintiff demands .judgment foreclosing the mortgage, for costs (and, where applicable, for attorneys’ fees), and if the proceeds of the sale are insufficient to pay plaintiffs claim, a deficiency .judgment.

NOTE: An action for foreclosure of a mortgage on residential real property must contain an oath, affirmation, or the following statement as required by rule 1.115(e).

VERIFICATION

Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.

Executed on.(date).

(Person Signing Verification)

⅜ * * * ⅝

AFFIDAVIT OF COMPLIANCE

STATE OF FLORIDA COUNTY OF.

BEFORE ME, the undersigned authority, personally appeared.(name)., who, after being first duly sworn, deposes and states, under penalty of peijury:

1. I am the plaintiff (or plaintiffs .) (identify relationship to plaintiff).

2. I am executing this affidavit in support of plaintiffs Complaint against defendant and I have personal knowledge of the matters set forth herein.

3. On.(date)., the public records reflect that defendant executed and delivered a mortgage securing the payment of the note to .(plaintiff/plaintiffs predecessor). The mortgage was recorded on.(date)., in Official Records Book . at page . of the public records of . County, Florida, and mortgaged the property described therein, which was then owned by and in possession of the mortgagor, a copy of the mortgage and the note being attached.

4. (select a, b, c, or d) Plaintiff cannot reasonably obtain possession of the note because

(a) the note was destroyed.

(b) the note is lost.

(c) the note is in the wrongful possession of an unknown person.

(d) the note is in the wrongful possession of a person who cannot be found or is not amenable to service of process.

5. (select a, b, c, or d)

(a) At the time the original note was lost, plaintiff was the holder of the original note secured by the mortgage-

lb) At the time the original note was lost, plaintiff was a person entitled to enforce the note under applicable law because .(allege specific facts).

(c) Since the note was lost, plaintiff has directly or indirectly acquired ownership of the note from a person who was entitled to enforce the note when loss of possession occurred as follows: .(allege facts regarding transfer of ownership).

(d) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, and the document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note_is/are_as_follows (attach copy of document(s) or relevant portion(s) of thé document(s)).

6. Below is the clear chain of the endorsements, transfers, allonges or assignments of the note and all documents that evidence same as are available to Plaintiff: .(identify in chronological order all endorsements, transfers, assignments of, allonges to, the note or other evidence of the acquisition, ownership and possession of the note). Correct copies of the foregoing documents are attached to this affidavit.

7. Plaintiff did not transfer the note or lose possession of it as the result of a lawful seizure.

FURTHER, AFFIANT SAYETH NAUGHT.

[signature]

[typed or printed name of affiant]

STATE OF FLORIDA COUNTY OF.

BEFORE ME, the undersigned authority appeared .(name of affiant).. who .is personally known to me or . produced identification . and acknowledged that he/she executed the foregoing instrument for the purposes expressed therein and who did take an oath.

WITNESS my hand and seal in the State and County aforesaid, this .(date).

NOTARY PUBLIC, State of Florida Print Name:

Commission_Expires:

Committee Note

2014 Adoption. This form is for installment payments with acceleration. It omits allegations about .junior encumbrances, unpaid taxes, unpaid insurance premiums, other nonmonetary defaults, and for a receiver. Allegations must be added when appropriate. This form may require modification. This form is designed to incorporate the pleading requirements of section 702.015, Florida Statutes (2013), and rule 1.115. It is also designed to comply with section 673.3091, Florida Statutes (2013). Adequate protection as required by sections 702.11 (2013) and 673.3091(2), Florida Statutes (2013), must be provided before the entry of final judgment.

FORM 1.944(c) MOTION FOR ORDER TO SHOW CAUSE PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSE FOR ENTRY OF FINAL JUDGMENT OF FORECLOSURE

1. Plaintiff is a lienholder of real property located at.(address).or is a .Condominium Association/Cooperative Association/Homeowner’s Association .

2. The plaintiff has filed a verified complaint in conformity with applicable law, which is attached.

3. The plaintiff requests this court issue an order requiring defendant(s) to appear before the court to show cause why a final judgment of foreclosure should not be entered against defendant(s).

4. The date of the hearing may not occur sooner than the later of 20 days after service of the order to show cause or 45 days after service of the initial complaint.

OR

COMMENT: Use the following when service is by publication:

4. When service is obtained by publication, the date for the hearing may not be set sooner than 30 days after the first publication.

5. The accompanying proposed order to show cause affords defendant(s) all the rights and obligations as contemplated by applicable law.

6. Upon the entry of the order to show cause, plaintiff shall serve a copy of the executed order to show cause for entry of final judgment as required by law.

7. This is not a residential property for which a homestead exemption for taxation was granted according to the rolls of the latest assessment by the County Property Appraiser.

Plaintiff requests the court review this complaint and grant this motion for order to show cause for entry of final .judgment of foreclosure, and grant such further relief as may be awarded at law or in equity.

Plaintiff

Certificate of Service

Committee Note

2014 Adoption. This form is designed to comply with section 702.10, Florida Statutes (2013). FORM 1.944(d) ORDER TO SHOW CAUSE

ORDER TO SHOW CAUSE

THIS CAUSE has come before the court on.plaintiffs/lien holder’s. motion for order to show cause for entry of final judgment of mortgage foreclosure and the court having reviewed the motion and the verified complaint, and being otherwise fully advised in the circumstances, finds and it is

ORDERED AND ADJUDGED that:

1. The defendant(s) shall appear at a hearing_on_foreclosure_on .(date).at.(time).before the undersigned .judge, in the .(county). Courthouse at .(address)., to show cause why the attached final judgment of foreclosure should not be entered against the defendants) in this cause. This hearing referred to in this order is a “show cause hearing.”

2. This ORDER TO SHOW CAUSE shall be served on the defendant(s) in accordance with the Florida Rules of Civil Procedure and applicable law as follows:

a. If the defendant(s) has/have been served under Chapter 48, Florida Statutes, with the verified complaint and original process has already been effectuated, service of this order may be made in the manner provided in the Florida Rules of Civil Procedure; or, if the other party is the plaintiff in the action, service of the order to show cause on that party may be made in the manner provided in the Florida Rules of Civil Procedure.

b. If the defendant(s) has/have not been served under Chapter 48, Florida Statutes, with the verified complaint and original process, the order to show cause, together with the summons and a copy of the verified complaint, shall be served on the party in the same manner as provided by law for original process.

3. The filing of defenses by a motion or verified answer at or before the show cause hearing constitutes cause for which the court may not enter the attached final judgment.

4. Defendant(s) has/have the right to file affidavits or other papers at the time of the show cause hearing and may appear at the hearing personally or by an attorney.

5. If defendant(s) file(s) motions, they may be considered at the time of the show cause hearing.

6. Defendant(s)’ failure to appear either in person or by an attorney at the show cause hearing or to file defenses by motion or by a verified or sworn answer, affidavits, or other papers which raise a genuine issue of material fact which would preclude entry of summary judgment or which would otherwise constitute a legal defense to foreclosure, after being served as provided by law with the order to show cause, will be deemed presumptively a waiver of the right to a hearing. In such case, the court may enter a final judgment of foreclosure ordering the clerk of the court to conduct a foreclosure sale. An order requiring defendant(s) to vacate the premises may also be entered.

7. If the mortgage provides for reasonable attorneys’ fees and the requested fee does not exceed 3% of the principal amount owed at the time the complaint is filed, the court may not need to hold a hearing to adjudge the requested fee to be reasonable.

8. Any final judgment of foreclosure entered under section 702,10(1) Florida Statutes, shall be only for in rem relief; however, entry of such final judgment of foreclosure shall not preclude entry of an in personam money damages judgment or deficiency judgment where otherwise allowed by law.

9. A copy of the proposed final judgment is attached and will be entered by the court if defendant(s) waive(s) the right to be heard at the show cause hearing.

10. The court finds that this is not a residential property for which a homestead exemption for taxation was granted according to the rolls of the latest assessment by the county property appraiser.

DONE AND ORDERED at .... .(county) .', Florida.(date)

CIRCUIT JUDGE

Copies to:

Committee Note

2014 Adoption. This form is designed to comply with section 702,10(1), Florida Statutes (2013).

FORM 1.996(a). FINAL JUDGMENT OF FORECLOSURE FINAL JUDGMENT This action was tried before the court. On the evidence presented IT IS ADJUDGED that: 1. Amounts Due. Plaintiff,.(name and address)., is due Principal $. Interest to date of this judgment . Title search expenses . Taxes . Attorneys — fees... Finding-as-te reasonable number of hours:.. Finding as to reasonable hourly rate:.. Other4":..■.. . (*-The-i;equested-attomeys’ fees are a-flat rate fee that the film’s client has-agreed to pay in thism at ter — Given the amount of-the-fee-requested and the labor exp ended--the ■ Gourt-fmds that a lodestar ■analysis-is-net-necessary and that the flat fee is reasonable.) Attorneys’ fees total Court costs, now taxed -20-

5.Distribution of Proceeds. On filing the certificate of title the clerk shall distribute the proceeds of the sale, so far as they are sufficient, by paying: first, all of plaintiffs costs; second, documentary stamps affixed to the certificate; third, plaintiffs attorneys’ fees; fourth, the total sum due to plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 1 from this date to the date of the sale; and by retaining any remaining amount pending further order of this court.

6. Right of Redemption/Right of Possession. On filing the certificate of sale, defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property and defendant’s right of redemption as prescribed by section 45.0315, Florida Statutes (2013) shall be terminated, except as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any. Upon the filing of the certificate of title, the person named on the certificate of title shall be let into possession of the property.

7. Attorneys’ Fees. [If a default judgment has been entered against the mortgagor]

Because a default .judgment has been entered against the mortgagor and because the fees requested do not exceed 3% of the principal amount owed at the time the complaint was filed, it is not necessary for the court to hold a hearing or adjudge the requested attorneys’ fees to be reasonable.

[If no default judgment has been entered against the mortgagor]

The court finds, based upon the affidavits/testimony presented and upon inquiry of counsel for the plaintiff that_hours were reasonably expended by plaintiffs counsel and that an hourly rate of $ is appropriate. Plaintiff’s counsel represents that the attorneys’ fees awarded does not exceed its contract fee with the plaintiff. The court finds that there is/are no reduction or enhancement factors for consideration by the court pursuant to Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). (If the court has found that there are reduction or enhancement factors to be applied, then such factors must be identified and explained herein).

[If the fees to be awarded are a flat fee]

The requested attorneys’ fees are a flat rate fee that the firm’s client has agreed to pay in this matter. Given the amount of the fee requested and the labor expended, the court finds that a lodestar analysis is not necessary and that the flat fee is reasonable.

78. Jurisdiction Retained. Jurisdiction of this action is retained to enter further orders that are proper including, without limitation, a deficiency judgment.

IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THE FINAL JUDGMENT.

IF YOU ARE A SUBORDINATE LIEN-HOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.

[If the property being foreclosed on has qualified for the homestead tax exemption in the most recent approved tax roll, the final judgment shall additionally contain the following statement in conspicuous type:]

IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. PLEASE CONTACT THE CLERK OF THE COURT, (INSERT INFORMATION FOR APPLICABLE COURT) WITHIN 10 DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.

IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD TO PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) TO SEE IF YOU QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.

ORDERED at ..., Florida, on .... .(date)..._

Judge

NOTE: Paragraph 1 must be varied in accordance with the items unpaid, claimed, and proven. The form does not provide for an adjudication of junior lienors’ claims nor for redemption by the United States of America if it is a defendant. The address of the person who claims a lien as a result of the judgment must be included in the judgment in order for the judgment to become a lien on real estate when a certified copy of the judgment is recorded. Alternatively, an affidavit with this information may be simultaneously recorded. For the specific requirements, see section 55.10(1), Florida Statutes; Hott Interiors, Inc. v. Fostock, 721 So.2d 1236 (Fla. 4th DCA1998).

Committee Notes

1980 Amendment. The reference to writs of assistance in paragraph 7 is changed to writs of possession to comply with the consolidation of the 2 writs.

2010 Amendment. Mandatory statements of the mortgagee/property owner’s rights are included as required by the 2006 amendment to section 45.031, Florida Statutes. Changes are also made based on 2008 amendments to section 45.031, Florida Statutes, permitting courts to order sale by electronic means.

Additional changes were made to bring the form into compliance with chapters 718 and 720 and section 45.0315, Florida Statutes, and to better align the form with existing practices of clerks and practitioners. The breakdown of the amounts due is now set out in column format to simplify calculations. The requirement that the form include the address and social security number of all defendants was eliminated to protect the privacy interests of those defendants and in recognition of the fact that this form of judgment does not create a personal final money judgment against the defendant borrower, but rather an in rem judgment against the property. The address and social security number of the defendant borrower should be included in any deficiency judgment later obtained against the defendant borrower.

2014 Amendment. These amendments added titles, updated statutory reference to time for right of redemption, and added a paragraph on attorneys’ fees.

3. Sale of Property. If the total sum •with interest at the rate described in paragraph 1 and all costs accrued subsequent to this .judgment are not paid, the clerk of this court shall sell the property at public sale on.(date) __, to the highest bidder for cash, except as prescribed in paragraph 4, at the courthouse located at _(street address of courthouse).... in _County_in ....(name of city)., Florida, in accordance with section 45.031, Florida Statutes (2013), using the following method (CHECK ONE):

At.(location of sale at courthouse; e.p„ north door).. beginning at .(time of sale).on the prescribed date.

By electronic sale beginning at .(time of sale).on the prescribed date at.(website)

4. Costs. Plaintiff shall advance all subsequent costs of this action and shall be reimbursed for them by the clerk if plaintiff is not the purchaser of the property for sale, provided, however, that the purchaser of the property for sale shall be responsible for the documentary stamps payable on the certificate of title. If plaintiff is the purchaser, the clerk shall credit plaintiffs bid with the total sum with interest and costs accruing subsequent to this judgment, or such part of it as is necessary to pay the bid in full.

5. Distribution of Proceeds. On filing the certifícate of title the clerk shall distribute the proceeds of the sale, so far as they are sufficient, by paying: first, all of plaintiffs costs; second, documentary stamps affixed to the certifícate; third, plaintiffs attorneys’ fees; fourth, the total sum due to plaintiff, less the items paid, plus interest at the rate prescribed in paragraph 1 from this date to the date of the sale; and by retaining any remaining amount pending further order of this court.

6. Right of Redemption/Right of Possession. On filing the certifícate of sale, defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice of lis pendens shall be foreclosed of all estate or claim in the property and defendant’s right of redemption as prescribed by section 45.031, Florida Statutes (2013) shall be terminated, except as to claims or rights under chapter 718 or chapter 720, Florida Statutes, if any. Upon the filing of the certificate of title, the person named on the certificate of title shall be let into possession of the property.

7. Attorneys’ Fees.

[If a default judgment has been entered against the mortgagor]

Because a default judgment has been entered against the mortgagor and because the fees requested do not exceed 3% of the principal amount owed at the time the complaint was filed, it is not necessary for the court to hold a hearing or adjudge the requested attorneys’ fees to be reasonable.

[If no default judgment has been entered against the mortgagor]

The court finds, based upon the affidavits/testimony presented and upon inquiry of counsel for the plaintiff that_hours were reasonably expended by plaintiffs counsel and that an hourly rate of $.. is appropriate. Plaintiffs counsel represents that the attorney fee awarded does not exceed its contract fee with the plaintiff. The court finds that there are no reduction or enhancement factors for consideration by the court pursuant to Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). (If the court has found that there are reduction or enhancement factors to be applied, then such factors must be identified and explained herein).

[If the fees to be awarded are a flat fee]

The requested attorneys’ fees are a flat rate fee that the firm’s client has agreed to pay in this matter. Given the amount of the fee requested and the labor expended, the court finds that a lodestar analysis is not necessary and that the flat fee is reasonable.

8. Re-establishment of Lost Note. The court finds that the plaintiff has reestablished the terms of the lost note and its right to enforce the instrument as required by applicable law. Plaintiff shall hold the defendant(s) maker of the note harmless and shall indemnify defendant(s) for any loss defendant(s) may incur by reason of a claim by any other person to enforce the lost note. Adequate protection has been provided as required by law by the following means: .(identify means of security under applicable law: a written indemnification agreement, a surety bond, include specific detail).

Judgment is hereby entered in favor of the plaintiff as to its request to enforce the lost note.

9. Jurisdiction Retained. Jurisdiction of this action is retained to enforce the adequate protection ordered and to enter further orders that are proper including, without limitation, a deficiency judgment.

IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THE FINAL JUDGMENT.

IF YOU ARE A SUBORDINATE LIEN-HOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.

[If the property being foreclosed on has qualified for the homestead tax exemption in the most recent approved tax roll, the final judgment shall additionally contain the following statement in conspicuous type:]

IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, (INSERT INFORMATION FOR APPLICABLE COURT) WITHIN 10 DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.

IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD TO PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) TO SEE IF YOU QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.

ORDERED at ..., Florida, on.(date).

Judge

NOTE: Paragraph 1 must be varied in accordance with the items unpaid, claimed, and proven. The form does not provide for an adjudication of junior lienors’ claims or for redemption by the United States of America if it is a defendant. The address of the person who claims a lien as a result of the .judgment must be included in the .judgment in order for the judgment- to become a lien on real estate when a certified copy of the judgment is recorded. Alternatively, an affidavit with this information may be simultaneously recorded. For the specific requirements, see section 55.10(1), Florida Statutes; Hott Interiors, Inc. v. Fostock, 721 So.2d 1236 (Fla. 4th DCA 1998).

Committee Note

2014 Amendment. This new form is to be used when the foreclosure judgment reestablishes a lost note.

FORM 1.996(⅛). MOTION TO CANCEL AND RESCHEDULE FORECLOSURE SALE Plaintiff moves to cancel and reschedule the mortgage foreclosure sale because: 1. On.(datel.this Gcourt entered a Final Judgment of Foreclosure pursuant to which a foreclosure sale was scheduled for-^20.fdatet. 2. The sale needs to be canceled for the following reason(s): a. _Plaintiff and Bdefendant are continuing to be involved in loss mitigation; b. _Defendant is negotiating for the sale of the property that is the subject of this matter and gplaintiff wants to allow the Bdefendant an opportunity to sell the property and pay off the debt that is due and owing to Pplaintiff. c. _Defendant has entered into a contract to sell the property that is the subject of this matter and Pglainliff wants to give the Bdefendant an opportunity to consummate the sale and pay off the debt that is due and owing to plaintiff. d. _Defendant has filed a Chapter_Petition under the Federal Bankruptcy Code; e. _Plaintiff has ordered but has not received a statement of value/appraisal for the property; f. ' _Plaintiff and Bdefendant have entered into a Forbearance Agreement; g. Other 3.If this Court cancels the foreclosure sale, Pglaintiff moves that it be rescheduled.

I hereby certify that a copy of the foregoing Mmotion has been furnished by ¾⅜ mail postage prepaid — facsimile or hand delivery.(method of service)_ to .(name(s)). this day of,.20 on ..... (date).

NOTE. This form is used to move the court to cancel and reschedule a foreclosure sale.

      . Art. V, § 2(a), Fla. Const.

      . All comments must be filed with the Court on or before February 9, 2015, with a certificate of service verifying that a copy has been served on the Committee Chair, Kevin B. Cook, Rogers Towers, P.A., 818 A1A N., Suite 208, Ponte Vedra Beach, Florida 32082-8217, kcook@rtlaw.com, and on the Bar Staff Liaison to the Committee, Ellen Sloyer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, esloyer@flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until March 2, 2015, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927. No additional copies are required or will be accepted.


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA BOARD OF BAR EXAMINERS re A.L.H.
    No. SC14-2338.
    Supreme Court of Florida.
    Dec. 11, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and A.L.H. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of one year and eight months.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on October 28, 2011 and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings at such frequency as required by FLA; practice AA/NA principles in all of her affairs; and carry the AA/NA message to other individuals with a substance use disorder;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA;
(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA; and
(g) submit quarterly statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to her compliance with the conditions set forth in 2(a), (b), (c), (d), and (e) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender her license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


author: SLEET, Judge.

text:
    Daniel WOLKOFF and Aimee Wolkoff, Appellants, v. AMERICAN HOME MORTGAGE SERVICING, INC., Appellee.
    No. 2D12-6460.
    District Court of Appeal of Florida, Second District.
    May 30, 2014.
    Rehearing Denied July 16, 2014.

      Thomas Erskine Ice and Amanda L. Lundergan of Ice Appellate, Royal Palm Beach, for Appellants.
    Nancy M. Wallace and Michael J. Larson of Akerman Senterfitt, Tallahassee, and William P. Heller of Akerman Senter-fitt, Fort Lauderdale, for Appellee.
   SLEET, Judge.

Daniel and Aimee Wolkoff appeal the trial court’s final judgment of foreclosure in favor of American Home Mortgage Servicing, Inc. (AHMSI). The Wolkoffs contend that there was insufficient evidence to support the amount of indebtedness owed to AHMSI. We agree and reverse.

On May 16, 2007, the Wolkoffs executed a promissory note and mortgage for $580,300 with American Brokers Conduit. The original note and mortgage were transferred to AHMSI via blank endorsement and assignment shortly thereafter. When the Wolkoffs defaulted on the September 2007 payment, AHMSI issued a default notice to them on October 2, 2007. The Wolkoffs failed to cure the default, and AHMSI filed for foreclosure in January 2008.

At the bench trial in November 2012, AHMSI offered the testimony of Jay Vent, a default case resolution representative for AHMSI, who authenticated the promissory note, mortgage, and payment history. However, when Vent testified about the amount of debt owed by the Wolkoffs he merely confirmed that the totals given to him on a proposed final judgment “seemed accurate”; he never openly recited the total amount of indebtedness, nor did counsel for AHMSI ask him to. AHMSI did not submit the proposed final judgment or any business records relevant to the Wol-koffs’ mortgage payment history as evidence. At trial, the Wolkoffs, who are both experienced in real estate, admitted to executing the note and testified that “money was owed to somebody.” The trial court ultimately entered a final judgment of foreclosure in the amount of $960,660.96, which included costs and an award of attorney’s fees.

It is axiomatic that the party seeking foreclosure must present sufficient evidence to prove the amount owed on the note. Typically a foreclosure plaintiff proves the amount of indebtedness through the testimony of a competent witness who can authenticate the mortgagee’s business records and confirm that they accurately reflect the amount owed on the mortgage. Thereafter, the business records are admitted into evidence. Here, AHMSI attempted to prove the amount of indebtedness by presenting Vent with a proposed final judgment, presumably prepared by AHMSI’s counsel. A document that was identified but never admitted into evidence as an exhibit is not competent evidence to support a judgment. Correa v. U.S. Bank Nat’l Ass’n, 118 So.3d 952, 955 (Fla. 2d DCA 2013).

To the extent that AHMSI argues that the Wolkoffs failed to preserve a challenge to the use of the proposed final judgment through contemporaneous objection, its argument is without merit. Florida Rule of Civil Procedure 1.530(e) provides:

When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

The Wolkoffs were not required to make a contemporaneous objection to the sufficiency of the evidence in order to preserve the issue for appeal. See Correa, 118 So.3d at 954.

During discovery, the Wolkoffs attempted to obtain copies of all business records that AHMSI intended to introduce into evidence at trial. Despite these efforts and over four years of litigation, AHMSI never provided the records that established the total amount of indebtedness. The mortgage payment history records introduced through Vent were incomplete, out of date, and failed to reflect the current debt owed on the mortgage. These records do not support the dollar amounts contained in the final judgment. There was no testimony or evidence to support the award of interest, taxes, property inspections, property evaluations, or attorney’s fees. Accordingly, we must reverse the final judgment of foreclosure.

At oral argument, AHMSI argued for the first time that under Sas v. Federal National Mortgage Ass’n, 112 So.3d 778 (Fla. 2d DCA 2013), the proper remedy is for this court to reverse and remand for further proceedings so that AHMSI may properly establish the amounts allegedly due and owing under the Wolkoffs’ mortgage. Although this argument may not be properly before the court, see Powell v. State, 120 So.3d 577, 593 (Fla. 1st DCA 2013) (noting that an appellate court should consider arguments raised for the first time at oral argument only in “[r]are or unusual instances”), Sas is distinguishable from the present case. In Sas, the bank submitted evidence of the amount of indebtedness through witness testimony without producing the business records on which the amount was based. 112 So.3d at 779. The trial court overruled Sas’s objection to the testimony as hearsay, and Sas sought review of that ruling in this court. Id. We held that the trial court abused its discretion when it allowed the loan servi-cer’s witness to recite over objection the amount of indebtedness as reflected in the mortgagee’s business records without first admitting those records. Id.

Similarly, in Kelsey v. SunTrust Mortgage, Inc., 131 So.3d 825 (Fla. 3d DCA 2014), the Third District reviewed the trial court’s evidentiary ruling. Kelsey objected to admission of the bank’s records because the records custodian was unqualified and incompetent to testify. The trial court overruled the objection, and the bank submitted the business records that established the amount due on the mortgage. On appeal, the Third District held that it was error for the trial court to admit the documents over objection without proper authentication and reversed and remanded for a rehearing. Id. at 826.

Unlike the lenders in both Sas and Kelsey, AHMSI failed to submit into evidence either the amount of indebtedness or the business records on which the amount was based. Although it appears that the trial court may have relied on the proposed final judgment to enter its order, the proposed final judgment was not entered into evidence, is not a part of the record on appeal, and is not likely an admissible business record of AHMSI. The defendants in the Sas and Kelsey cases objected to the banks’ evidence on hearsay grounds; however AHMSI presented no evidence detailing any amounts due and owing, and under rule 1.530(e) the Wolkoffs did not need to object to challenge the sufficiency of the evidence. In Sas and Kelsey, the focus was the admissibility of the evidence of indebtedness and the equities were balanced in favor of remand. Because we are not reviewing an evidentiary ruling, our standard of review is different than the standard applied in Sas and Kelsey. We review the trial court’s findings for competent, substantial evidence supporting the verdict. Crawford Residences, LLC v. Banco Popular N. Am., 88 So.3d 1017, 1019 (Fla. 2d DCA 2012).

This court’s Correa opinion is instructive. 118 So.3d 952. In Correa, the bank failed to present evidence of the terms of a lost note under section 673.3091(2), Florida Statutes (2007), or its right to enforce the lost note under section 673.3091(l)(b). Although the bank presented the testimony of a records custodian who identified a copy of the lost note, the bank did not submit the document into evidence and the custodian did not testify as to its terms. Correa, 118 So.3d at 955. Accordingly, this court reversed and remanded for the trial court to enter an involuntary dismissal of the complaint. Id. at 957. Similarly, AHMSI’s failure to prove a prima facie case warrants dismissal. See Fla. R. Civ. P. 1.420(b); Allard v. Al-Nayem Int’l, Inc., 59 So.3d 198, 201 (Fla. 2d DCA 2011). Because there is no evidence to support the amounts contained in the final judgment, we are constrained to reverse.

“[Ajppellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.” Correa, 118 So.3d at 956 (quoting Morton’s of Chi, Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010)). When a party seeking monetary damages fails to establish an evidentiary basis for the damages ultimately awarded at trial, reversal for entry of an order of dismissal is warranted. Morton’s, 48 So.3d at 80. AHMSI had over four years to produce business records that could prove the amount of the Wolkoffs’ indebtedness, and it had the opportunity at trial to prove its case. Instead, at trial, it relied on an unauthenticated document prepared in anticipation of litigation. AHMSI failed to satisfy its burden to prove the amount of debt owed. Therefore, dismissal is appropriate. See Allard, 59 So.3d at 201.

Accordingly, we see no reason to afford AHMSI a second opportunity to prove its case. We reverse and remand with directions for the trial court to enter an order of involuntary dismissal.

DAVIS, C.J., and SILBERMAN, J., Concur.


author: NORTHCUTT, Judge.

text:
    COASTAL CAPITAL VENTURE, LLC; Coastal Medical Imaging, LLC; Brian H. Merritt; and Lynda Merritt, Appellants, v. INTEGRITY STAFFING SOLUTIONS, INC., d/b/a Integrity Staffing Solutions and Services, Inc., a/a/o Fortran Group International, Inc., Appellee.
    No. 2D13-2915.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
    Rehearing Denied Dec. 12, 2014.

      Daniel A. Bushell of Bushell Appellate Law, P.A., Fort Lauderdale, for Appellants.
    R.G. McCormick, Jr., of The Bleakley Bavol Law Firm, Tampa, for Appellee.
   NORTHCUTT, Judge.

Coastal Capital Venture LLC, Coastal Medical Imaging LLC, and Brian and Lynda Merritt challenge the denial of their motion to set aside a default judgment. They argue that the plaintiff below, Integrity Staffing Solutions Inc., failed to properly serve them with process. We agree and reverse.

Integrity Staffing’s complaint alleged that its assignor, Fortran Group International- Inc., bought a mobile MRI unit and leased it to the Coastal LLCs. Brian Merritt was a managing member of the Coastal entities; and both he and Lynda Merritt, his wife, signed personal guaranties of the lease obligations. After the Coastal LLCs failed to pay as required under the lease, Integrity Staffing filed suit against the Coastal LLCs and the Merritts.

Integrity Staffing filed an amended complaint alleging that the Merritts were Florida residents who were “concealing their location.” It effected substituted service of process on the defendants by delivering it to the Florida Secretary of State pursuant to section 48.181(1), Florida Statutes (2012). That statute permits substitute service on Florida residents who conceal their whereabouts. After none of the defendants responded to the suit, a default judgment was entered against them.

In Integrity Staffing’s amended complaint, its motion for default, and an affidavit of its attorney, it recounted that the Merritts lived in a Sarasota condominium but that they had not been seen there in several months. Two different process servers attempted to serve them multiple times at the condominium without success. It was further alleged that the Merritts also owned a single-family residence but that it appeared abandoned. A private investigator had performed a “skip trace” but identified no other addresses for the Merritts.

However, the evidence before the circuit court at the hearing on the defendants’ motion to set aside the judgment established without contradiction that during the relevant period the Merritts were on an extended business trip in California. Further, during this time the president of Fortran was in regular telephone and text communication with Brian Merritt and was aware that the Merritts were in California. Despite this, Fortran’s president did not inform the Merritts of the attempts to serve them or seek to arrange for service in California.

Substitute service is unauthorized if personal service could be obtained through reasonable diligence. McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 880 (1926). The test is

whether the' complainant reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant.

Id. at 830-31 (citation omitted).

Obviously, the necessary diligence is not established by repeatedly sending a process server to an address when the resident is known to be out of town. Cf. Robinson v. Cornelius, 377 So.2d 776, 778 (Fla. 4th DCA 1979) (concluding that diligent search was not performed, and substituted service was not justified, when the serving party knew that the opposing party did not reside at a particular address but attempted service at that address on multiple occasions).

As aptly explained in Knabb v. Morris, 492 So.2d 839, 841 (Fla. 5th DCA 1986),

[tjhere is a strong public policy interest in seeing that a defendant receives notice of any actions against him so that he may have his day in court in accordance with due process requirements. For this reason, substituted service of process statutes must be strictly complied with. Thus, failure to utilize obvious and available leads to locate the defendant is fatal to a finding of due diligence.

Id. at 841 (citations omitted); see also Mayo v. Mayo, 344 So.2d 933 (Fla. 2d DCA 1977) (reversing default judgment based on invalid constructive service; serving party failed to show that he had inquired of persons likely to know the whereabouts of the opposing party).

Here, Fortran’s president was in regular communication with Brian Merritt during the pertinent time, and he knew that the Merritts were out of town. But he did not ask Merritt where they could be served. This failure to use an “obvious and available” resource was fatal to Integrity Staffing’s resort to substituted service. Accordingly, we reverse. On remand, the circuit court shall vacate the default judgment.

Reversed and remanded with directions.

SILBERMAN and CRENSHAW, JJ., Concur.


author: KHOUZAM, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Tomas BURGESS, Appellee/Cross-Appellant.
    No. 2D12-4482.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2014.
    Rehearing Denied Oct. 31, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    Tomas Burgess, pro se.
   KHOUZAM, Judge.

The State of Florida appeals, and Tomas Burgess cross-appeals, an order granting in part and denying in part Burgess’s motion for discharge. The order dismissed three of six pending charges based on the trial court’s conclusion that Burgess had not waived his right to a speedy trial by the time the State filed a superseding information. But because the record reflects that Burgess did waive his right to a speedy trial before the superseding information was filed, we reverse the portion of the order dismissing the pending charges. We find no merit in Burgess’s cross-appeal and therefore affirm the denial of the motion to discharge as to the remaining counts.

Burgess was arrested on March 26, 2010, and was originally charged by information on April 22, 2010. That information charged Burgess with three counts of burglary of unoccupied areas (one dwelling, one structure, and one conveyance) and two counts of grand theft. A detailed review of Burgess’s pretrial hearings is not necessary; suffice it to say that Burgess became dissatisfied with appointed counsel’s representation and repeatedly requested that his attorney be discharged.

During a pretrial hearing on October 14, 2010, the trial court found that Burgess had given up his right to be represented by counsel after conducting both a Nelson and a Faretta inquiry. Immediately thereafter, the following exchange occurred:

Court: In this ease, [appointed counsel] ■will stay on as standby counsel and — do you need some time to prepare your trial for Monday?
Burgess: [no audible response]
Court: Are you ready to go on Monday? Burgess: No.
Court: All right. How much time do you need to prepare your case?
Burgess: I don’t know how to answer that. I guess I’m going to have to learn about the law—
Court: Okay.
Burgess: — since I’m [indiscernible]. I guess I’m going to have to learn and I don’t know how long that’s going to take.
Court: We’ll set your case over until December the 9th at 8:30. You can let me know then.

At the December hearing, the court set another pretrial hearing for February 22, 2011, and set trial for February 28, 2011.

On February 21, 2011, the State filed a superseding information. The superseding information added one count and augmented two of the existing counts. The added count (labeled as count one of the superseding information) was a second burglary of an unoccupied dwelling alleged to have occurred during the same criminal episode. The augmented counts (counts three and six of the superseding information) contained additional detáils clarifying the victims and items stolen in the two already-existing grand theft counts. The remaining three counts were retained from the original information and were real-leged verbatim.

On February 28, 2011, the morning scheduled for trial, Burgess again told the court he was not ready, and the case was again continued. During the following eighteen months Burgess filed a variety of motions, some of which addressed the speedy trial rule. But the record does not reflect that a demand for speedy trial was ever filed, either pro se or on Burgess’s behalf.

On August 8, 2012, Burgess filed a pro se motion for discharge, arguing that the superseding information filed February 21, 2011, violated his right to a speedy trial. The trial court entered an order on August 9, 2012, granting the motion in part and denying in part. In the order, the trial court concluded that although Burgess “eventually” waived his right to speedy trial on some unspecified date, he had not yet done so by the time the State filed its superseding information on February 21, 2011. Based on its speedy trial analysis, the trial court further concluded 1) that the new count in the superseding information arose from the same set of facts underlying the original information, and 2) that the two amended grand theft counts were “sufficiently different” to result in prejudice to Burgess. Without any further explanation, the order dismissed counts one, three, and six of the superseding information. The trial court denied the motion as to the three counts which were identical in both charging documents. From this order, the State appealed and Burgess cross-appealed.

Florida Rule of Criminal Procedure 3.191(a) provides that a person accused of a felony generally has the right to be brought to trial within 175 days of arrest. The rule, however, is not self-executing and requires affirmative action on behalf of the defendant to avail himself or herself of the proper remedies. State v. Nelson, 26 So.3d 570, 574 (Fla.2010). “Florida’s speedy trial rule is a procedural protection and, except for the right to due process under the rule, does not reach constitutional dimension.” State v. Naveira, 873 So.2d 300, 308 (Fla.2004) (quoting State v. Bivona, 496 So.2d 130, 133 (Fla.1986)) (internal quotations omitted).

Generally, a defense request for a continuance waives the right to speedy trial. Banks v. State, 691 So.2d 490, 491 (Fla. 4th DCA 1997). And “[a]ny defense request to postpone a case for any period of time, whatever called, constitutes a motion for a continuance waiving speedy trial rule rights.” Blackstock v. Newman, 461 So.2d 1021,1022 (Fla. 3d DCA 1985). This is true even for continuances requested after the expiration of the speedy trial period, so long as the defendant has not yet filed a notice of expiration of speedy trial time. Nelson, 26 So.3d at 580 (holding that the recapture period provisions of rule 3.191 compel the conclusion that “a continuance that is chargeable to the defense and made after the expiration of the speedy trial period but before a defendant files a notice of expiration waives a defendant’s speedy trial rights under the default period of the rule”). Once waived, the defendant can “start the clock running again,” but only by invoking a demand for speedy trial under rule 3.191(b). See Atkins v. State, 785 So.2d 1219, 1220 (Fla. 4th DCA 2001). Interpretation of rule 3.191 is a legal question subject to de novo review. See Nelson, 26 So.3d at 573-74.

Here, the trial court erred as a matter of law when it determined that Burgess had not waived his right to a speedy trial before February 21, 2011.

The transcript of the October 14, 2010, hearing demonstrates that Burgess unequivocally stated he was not ready for his imminent trial and needed more time to prepare. This statement constituted a motion for continuance and operated as a waiver of Burgess’s right to a speedy trial. Although the 175-day window following Burgess’s March 26, 2010, arrest had already expired in September 2010, no notice of expiration of speedy trial was filed before the continuance. Consequently, “when [Burgess] requested a post-expiration continuance ... without filing a notice of expiration, he necessarily waived his right to a speedy trial within the default period.” Nelson, 26 So.Bd at 579.

Because Burgess waived his right to a speedy trial prior to the date the State filed the superseding information, we must now determine whether the new information resulted in prejudice to Burgess. “It is well-settled that the state may amend its information pre-trial or even during trial, either as to substantive or non-substantive matters, unless the defendant is prejudiced thereby.” State v. Clifton, 905 So.2d 172, 178 (Fla. 5th DCA 2005) (quoting State v. Erickson, 852 So.2d 289, 291 (Fla. 5th DCA 2003)) (internal quotations omitted). Where the defendant is afforded an adequate opportunity to investigate the evidence and prepare a defense, an amendment to the information is not improper even where the amendment adds a new charge with different elements of proof. Cf Peevey v. State, 820 So.2d 422, 424 (Fla. 4th DCA 2002) (observing that, although an amendment which added a new victim and a new offense to the information on the day of trial was not permissible, “[h]ad the State added the charge earlier, the Defendant could have investigated what evidence the State could present and formulate a defense”).

Here, it is difficult to imagine that the superseding information impermissibly prejudiced Burgess. As noted above, the superseding information added a new charge and details to existing charges. But, given that the superseding information was filed more than seventeen months before the motion to discharge — without a trial occurring on these charges — Burgess cannot claim prejudice because he has had more than ample time to investigate the evidence and formulate a defense. The trial court’s conclusion that the superseding information impermissibly prejudiced Burgess simply cannot stand.

Consequently, the trial court erred in dismissing the counts. Accordingly, we reverse the part of the order that dismisses counts one, three, and six of the superseding information. We affirm the remainder of the order denying the motion to discharge as to the three counts that were not amended in the superseding information. On remand, the trial court shall reinstate counts one, three, and six in the superseding information.

Affirmed in part; reversed in part; case remanded.

LaROSE and BLACK, JJ., Concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. . 2525, 45 L.Ed.2d 562 (1975).

      . Our focus on the October 14, 2010, dialogue should not be read to address whether any other conduct would independently constitute a waiver of that right; rather, the existence of even one such waiver during the relevant period is sufficient to demonstrate the error in the trial court’s analysis.


author: SILBERMAN, Judge.

text:
    Nicola HERBST, Appellant, v. Peter HERBST, Appellee.
    No. 2D13-2745.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2014.
    Rehearing Denied Oct. 30, 2014.
    Peter N. Meros of Meros, Smith, Laz-zara, Brennan & Olney, P.A., St. Peters-burg, for Appellant.
    Ceci Culpepper Berman of Brannoek & Humphries, Tampa, for Appellee.
   SILBERMAN, Judge.

Nicola Herbst, the Former Wife, and Peter Herbst, the Former Husband, entered into a marital settlement agreement (MSA) that provided for nonmodifiable alimony payable to the Former Wife for the remainder of her life. But when the parties divorced and the Former Wife remarried another, the Former Husband moved to have his alimony obligation terminated. The Former Wife seeks review of postdis-solution orders terminating the Former Husband’s alimony obligation, establishing the Former Husband’s overpayment of alimony, and setting off the Former Wife’s attorney’s fee and cost award against that overpayment. We reverse because the MSA unambiguously requires payment continuing beyond the Former Wife’s remarriage and therefore controls over the statutory provision relied on by the trial court.

The parties had been married twenty-two years and had four minor children when the Former Wife filed her petition for dissolution of marriage. In the course of the divorce proceedings, the parties attended mediation conferences and ultimately entered into the MSA. Paragraph 7 of the MSA awarded the Former Wife alimony as follows:

Alimony—

The Petitioner agrees to pay the Respondent alimony in the amount of $4,500 beginning the date of the final judgment and continuing for the life of the Petitioner. The parties agree that this alimony is non-modifiable.

The MSA was incorporated into the final judgment of dissolution which was rendered in August 2009.

The Former Wife remarried in July 2010, and the Former Husband stopped paying her alimony when he learned of the remarriage. The Former Wife subsequently filed a petition to enforce the alimony provision of the MSA. The Former Husband responded by filing a motion to terminate alimony and for return of the alimony he paid after the date of the Former Wife’s remarriage.

The trial court entered an order determining that the alimony provision was ambiguous because it failed to specify whether the alimony (1) was in the nature of support or equitable distribution and (2) continued in the event of the Former Wife’s remarriage. Thus the court ordered that an evidentiary hearing would be held to adduce parol evidence on those issues.

At the onset of the evidentiary hearing, the parties stipulated that any evidence regarding discussions at the mediation conference was confidential and would not be adduced. The Former Wife testified that the parties agreed the Former Husband would pay the Former Wife alimony for her entire life and she could never seek more or get less. The Former Husband testified that his understanding was the alimony would terminate if the Former Wife cohabited or remarried.

The trial court found the parties’ testimony to be “self-serving” and did not consider the parol evidence in ruling on the parties’ motions. Instead, it based its decision on a legal construction of the MSA. The court determined that the alimony was in the nature of spousal support and was intended to be permanent alimony which is governed by section 61.08, Florida Statutes (2011). The court noted that section 61.08(8) provides for the termination of permanent alimony “upon the death of either party or upon the remarriage of the party receiving alimony.” Notwithstanding that the alimony provision specified that the Former Wife would receive non-modifiable alimony for life, the court concluded that the alimony provision did not expressly address termination. The court held that section 61.08(8) therefore applied and entered an order finding that the alimony terminated upon the Former Wife’s remarriage. The court reserved jurisdiction to determine the amount of alimony the Former Husband overpaid.

After another hearing, the court entered an order finding that the Former Husband had overpaid $50,207.42 in alimony. The court also awarded $26,000 in attorney’s fees and costs to the Former Wife. The court ordered the Former Husband to pay $7500 within thirty days and reserved jurisdiction to address payment of the remaining amount. In October 2018, the trial court entered a final order setting off the remaining $18,500 in attorney’s fees and costs against the Former Husband’s award of $50,207.42 for alimony overpayment.

On appeal, the Former Wife argues that the trial court erred by concluding that the alimony terminated upon the Former Wife’s remarriage pursuant to section 61.08(8). The Former Wife asserts that the provision in the MSA obligating the Former Husband to pay nonmodifiable alimony “for the life of [the Former Wife]” controlled. The Former Wife additionally argues that the trial court erred in setting off her attorney’s fee and cost award against the Former Husband’s alimony overpayment.

It is well-settled in dissolution of marriage proceedings that the parties may enter into settlement agreements imposing obligations the trial court could not otherwise impose under the applicable statutes. Taylor v. Lutz, 134 So.Bd 1146, 1148 (Fla. 1st DCA 2014). Thus, if the parties’ MSA requires payment beyond the recipient’s remarriage, the agreement’s terms will control over section 61.08. Id. at 1148; Porter v. Porter, 521 So.2d 290, 291 (Fla. 1st DCA 1988).

We review the trial court’s interpretation of the MSA de novo. See Pipi-tone v. Pipitone, 23 So.3d 131,134 (Fla. 2d DCA 2009). Such agreements are construed the same as any other contract. Taylor, 134 So.3d at 1148. If the terms of the agreement are unambiguous, they are treated as evidence of the parties’ intention and the agreement’s meaning. In construing the terms of the agreement, the court may not isolate a single term' or phrase. Instead, the goal is to come to a reasonable interpretation of the language in the context of the entire agreement. Id.

In this case the MSA unambiguously addresses the circumstances under which alimony may be terminated by obligating the Former Husband to pay alimony “for the life of the [Former Wife]” and by making it nonmodifiable. While this provision does not expressly address remarriage or cohabitation, it implicitly does so by requiring that payments continue in a specified amount until the Former Wife dies. Because this provision requires payment continuing beyond the Former Wife’s remarriage, its terms control over section 61.08(8).

The facts of this case are analogous to those in Porter. In Porter, the parties’ marital settlement agreement provided for alimony for the former wife’s life and stated that it “would ‘terminate only upon the death of wife or remarriage of the parties to each other.’ ” 521 So.2d at 291. When the former wife remarried a man who was not the former husband, the former husband stopped paying alimony. The former wife filed a motion for contempt or for entry of a judgment on the arrearage. The court entered a judgment on the ar-rearage based on its conclusion that the terms of the agreement required the payment of alimony beyond the 'wife’s remarriage to a third party.

On appeal, the First District agreed that the terms of the marital settlement agreement prevailed because they were contrary to the law providing for termination upon remarriage. Id,.; see also Taylor, 134 So.3d at 1147-48 (construing a marital settlement agreement which required the former husband to pay “Bridge-the-Gap alimony which is non-modifiable in the amount of $500.00 a month for three (3) years” to preclude termination when the former wife remarried within that three years).

We reject the Former Husband’s argument that the parties’ failure to expressly address remarriage in the alimony provision makes it ambiguous. The Former Husband relies on a line of cases requiring settlement agreements to expressly provide that alimony does not terminate upon the death of the obligor in order for it to continue after the obligor’s death. See O’Malley v. Pan Amer. Bank of Orlando, N.A., 384 So.2d 1258, 1260 (Fla.1980); Hannon v. Hannon, 740 So.2d 1181, 1184 (Fla. 4th DCA 1999). But those cases apply “the well established rule [ ] that an obligation to pay alimony ceases upon the death of the obligor, unless that person expressly agrees that the estate shall be bound to continue to pay alimony after his death.” O’Malley, 384 So.2d at 1260. Thus, language providing that the husband shall pay alimony “until wife becomes remarried or deceased” does not indicate an intent to bind the husband’s estate to continue to pay alimony after his death. Id. at 1259-60; see also Farrar v. Keyser, 212 So.2d 677, 678 (Fla. 1st DCA 1968) (holding that there was no intent to bind the former husband’s estate to pay alimony after his death in language stating that the “alimony will cease upon the death or remarriage of [the former wife]”).

This case does not involve termination upon the obligor spouse’s death and the liability of that spouse’s estate as did O’Malley. Because this case does not involve binding the Former Husband’s estate to continue paying alimony upon his death in contravention of well-settled common law, O’Malley and similar cases relied upon by the Former Husband are inapplicable. Instead, this case addresses the issue of termination upon the obligee spouse’s remarriage as did Taylor and Porter, and we conclude that the reasoning in those cases is correct.

In summary, the terms of the alimony provision in the parties’ MSA unambiguously obligate the Former Husband to pay the Former Wife nonmodifiable alimony until she dies. Because this provision requires payment beyond the Former Wife’s remarriage, its terms control over section 61.08(8). Thus, the trial court erred in concluding that section 61.08(8) applied to provide for termination of alimony upon the Former Wife’s remarriage.

We therefore reverse the orders terminating the Former Husband’s alimony obligation, establishing the Former Husband’s overpayment of alimony, and setting off the Former Wife’s attorney’s fee and cost award against that overpayment. On remand the trial court should enter an order granting the Former Wife’s petition to enforce the alimony provision of the MSA and awarding her any other relief she is due.

Reversed and remanded.

MORRIS and SLEET, JJ., Concur.

      . The parties have agreed that this sentence erroneously designated "[t]he Petitioner" as the obligor and "the Respondent” as the obli-gee. There is no dispute that the Former Husband agreed to pay monthly alimony to the Former Wife.

      . The parties do not dispute this finding.

      . Notwithstanding the trial court’s initial determination that the MSA was ambiguous, its ruling as to the dispositive issue was based on its interpretation of the contract language and statute and not on the parol evidence that it rejected as "self-serving.”


text:
    Daniel SAWYER, Appellant, v. Dennis Edward BOOTHE, Vincen A. Boothe, Rebecca Boothe, Elaine Danielle Boothe, Vanesse Boothe, Appellees.
    No. 2D13-6117.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2014.
    Rehearing Denied Oct. 30, 2014.
    Daniel Sawyer, pro se.
    Albert C. Penson and Stephanie R. Hayes of Penson Law Firm, P.A., Tallahassee, for Appellees.
   KHOUZAM, Judge.

Daniel Sawyer appeals an order dismissing with prejudice his complaint in which he alleged that the attorney who represented him at a criminal trial committed legal malpractice. Although the trial court erred when it dismissed the complaint based on the statute of limitations, we nevertheless affirm the dismissal with prejudice because it is apparent the complaint cannot be amended to state a cause of action. See Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 495 (Fla. 4th DCA 2001) (“If a complaint does not state a cause of action, the opportunity to amend a complaint should be liberally given, unless it is apparent the pleading cannot be amended to state a cause of action.”).

For his legal malpractice claim to be successful, Sawyer needed to prove that he had obtained postconviction relief and that he was actually innocent. See Cira v. Dillinger, 903 So.2d 367, 370-71 (Fla. 2d DCA 2005). Attached to the complaint was a postconviction order vacating Sawyer’s sentence and allowing him to plead guilty. The stated basis for the postconviction relief was Sawyer’s testimony that he was guilty and would have pleaded guilty had his attorney conveyed a plea offer to him. Therefore, in establishing the “exoneration” element of his legal malpractice claim, Sawyer has negated the “innocence” element and he cannot state a cause of action. Because the trial court reached the correct result, albeit for the wrong reasons, we affirm. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002).

Affirmed.

ALTENBERND and MORRIS, JJ., Concur.


author: CLARK, J.

text:
    Daniel John MATTHEWS, Appellant, v. Michael STEINBERG, Craig Latimer, in his Official Capacity as Supervisor of Elections of Hillsborough County, Florida, Deborah Clark, in her Official Capacity as Supervisor of Elections of Pinellas County, Florida, and Ken Detzner, in his Official Capacity as Secretary of the State of Florida, Department of State, Appellees.
    No. 1D14-3477.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Rehearing Denied Nov. 6, 2014.

      Harry 0. Thomas, Christopher B. Lun-ny, and Laura M. Dennis of Radey Law Firm, Tallahassee, for Appellant.
    Michael A. Steinberg, Tampa, J. Andrew Atkinson, General Counsel, and Ashley E. Davis, Assistant General Counsel, Florida Department of State, Tallahassee; Jewel White, Pinellas County Chief Assistant County Attorney, Clearwater; Mary Helen Farris, Hillsborough County Attorney, Tampa, for Appellees.
   CLARK, J.

There is one simple fact necessary in this appeal: Daniel John Matthews sought to be a write-in candidate for the Florida House of Representatives, but he did not reside within the district he wished to represent at the time he filed his qualifying paperwork with the Division of Elections. Mr. Matthews contends he is only required to reside in the district at the time of election — not filing. Because the Florida Constitution clearly delineates a residency requirement for legislators, which a statute cannot contravene, we agree.

The Florida Constitution mandates a legislator “shall be at least twenty-one years of age, an elector and resident of the district from which elected and shall have resided in the state for a period of two years prior to election.” Art. Ill, § 15(c), Fla. Const. This mandates residency within the district at the time of election. Norman v. Ambler, 46 So.3d 178, 183 (Fla. 1st DCA 2010) (citing Miller v. Mendez, 804 So.2d 1243, 1245-46 (Fla.2001)). This constitutional eligibility requirement applies to every legislator — regardless of party affiliation or whether the legislator appeared on the ballot as a write-in or not.

In addition, “[a]t the time of qualification, all write-in candidates must reside within the district represented by the office sought.” § 99.0615, Fla. Stat. (emphasis added). Thus, by statute, write-in candidates must reside within the district at an earlier point than other candidates—the time of qualification. § 99.0615, Fla. Stat.

Florida law distinguishes between “constitutional eligibility for office, on the one hand, and, on the other, a constitutionally eligible candidate’s taking the necessary, statutory steps to qualify to run for office.” Norman, 46 So.3d at 182. Eligibility is constitutional, while qualification is statutory and concerns ballot access matters. Id, at 182-83 (citing Levey v. Dijols, 990 So.2d 688, 692 (Fla. 4th DCA 2008)). The key is that such qualifications “cannot impose additional eligibility requirements beyond those set forth in the constitution.” Norman, 46 So.3d at 183. Statutory qualification may not add to or limit constitutional eligibility requirements. Id. Put another way: “statutes imposing additional qualifications for office are unconstitutional where the basic document of the constitution has already undertaken to set forth those requirements.” State ex rel. Askew v. Thomas, 293 So.2d 40, 42 (Fla.1974). Appellees here claim the statutory residency requirement applicable to only write-in candidates equates to nothing more than a statutory qualification, ballot-access step. We do not agree.

Qualification requirements, mandated by statute, include steps such as making “a full and public disclosure of financial interests,” taking an oath, and paying filing fees or gathering constituent signatures. See § 99.061(5), (7)(a)(l)-(2), Fla. Stat. These qualifications do not appear in the Constitution. See Art. Ill, § 15(c), Fla. Const. Yet as solely qualifications to obtain entry onto the ballot, they are permissible. See Norman, 46 So.3d at 182-83; Levey, 990 So.2d at 692-93.

Here however, the statutory residency obligation is not equivalent to such qualifications as fees, signatures, oaths, and financial disclosures. Importantly, the residency “qualification” addresses a requirement already delineated—and controlled—by express constitutional mandate. The statutory requirement directly contravenes and adds to the constitutional fiat that legislators reside in the district at the time of election. See Francois v. Brinkmann, 147 So.3d 613, 616 (Fla. 4th DCA 2014) (finding section 99.0615 facially unconstitutional “because the timing of its residency requirement for write-in candidates conflicts with the timing of the residency requirement for county commission candidates as established by [the Constitution]”).

Appellees maintain the Legislature is permitted to make reasonable restraints on write-in candidates; and they are correct. Nevertheless, a statute may not usurp the Constitution’s direct expression of an eligibility requirement. Appellees also contend the requirement is permissible because it only pertains.to write in candidates. See State v. Grassi, 532 So.2d 1055 (Fla.1988) (invalidating residency-at-time-of-filing requirement where it applied to all candidates regardless of how they sought ballot access: payment of. fees, write-in, collecting signatures, or otherwise). We find this to be a distinction without a difference. See also Francois, 147 So.3d at 615-616 (using Grassi to find section 99.0615 facially unconstitutional). The key here, again, is that the statute addresses, m a differing manner, a requirement already addressed by the Constitution. The Legislature is free to make its reasonable restraints — -just not those which directly contravene explicit constitutional mandates for eligibility.

We acknowledge statutes pertaining to the conduct of elections carry “an extremely strong presumption of validity.” Id. at 615 (quoting Pasco v. Heggen, 314 So.2d 1, 8 (Fla.1975)). To find an elections statute unconstitutional, a court “must be convinced beyond a reasonable doubt that the act contravenes the superior law.” Id. (quoting Mairs v. Peters, 52 So.2d 793, 795 (Fla.1951)). And as was the Fourth District, we are convinced beyond a reasonable doubt. Id. at 616.

Accordingly, we find section 99.0615, Florida Statutes, facially unconstitutional. We REVERSE the circuit court’s order (i) finding Mr. Matthews is not a qualified candidate for office and (ii) “opening” the primary pursuant to Article VT, section 5(b), of the Florida Constitution. We REMAND for further proceedings and for the circuit court to address the issues of any necessary special elections, including the required “closed” primary and subsequent “general” election between the winner of the primary and Mr. Matthews.

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

      . Pasco v. Heggen, 314 So.2d 1, 3-4 (Fla.1975) (making oaths or obtaining signatures are not unreasonable); see also Smith v. Smathers, 372 So.2d 427, 429 (Fla.1979) (finding legislature may "reasonably regulate[]” the write-in process to maintain "orderly and effective elections,” but the legislature may not completely abolish the ability to write in a candidate).

      . Because we find the statute facially unconstitutional, we do hot address the remainder of Mr. Matthews' arguments on appeal.