author: MARSTILLER, J.

text:
    Joseph H. BROWN, Appellant, v. Frank BROWN, Jr., Appellee.
    No. 1D13-4452.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Rehearing Denied Oct. 31, 2014.

      E. Leon Jacobs, Jr. of Williams & Jacobs, LLC, Tallahassee, for Appellant.
    Brant Hargrove, Tallahassee, for Appel-lee.
   MARSTILLER, J.

This is an appeal from a final order of the circuit court directing that certain joint and Pay-on-Death (“POD”) deposit accounts be included in the Estate of Elizabeth M. Brown (“Estate”) and the funds distributed equally among Mrs. Brown’s six children, according to her Last Will and Testament. For the reasons explained below, we affirm the order as to the joint accounts, but reverse as to the POD accounts.

Mrs. Brown, who died on January 24, 2007, was the mother of Appellant, Appel-lee and four other adult children. Her will contains several specific devises, and provides that all other property not specifically bequeathed be distributed equally among her children. Appellee, curator of the Estate, filed a complaint against Appellant seeking, inter alia, a declaratory judgment that certain of Mrs. Brown’s accounts are assets of the Estate. The accounts at issue are either joint accounts naming Appellant as co-owner or POD accounts naming Appellant as a beneficiary:

A. 1996 Capital City Bank CD (# 821561825) jointly held by the decedent and Appellant. Balance: $52,145.68
B. 1997 Capital City Bank CD (# 151348043) jointly held by the decedent and Appellant (redeemed and closed on January 10, 2007). Balance: $8,782.59
C. 1998 Wachovia POD CD (#011832050719921) naming Appellant as sole beneficiary (redeemed and closed on February 12, 2007). Balance: $10,690.52
D. 2003 Farmers & Merchants Bank POD Savings (# 0803926520) naming Appellant as sole beneficiary (closed on January 9, 2006 and converted to 2006 FMB POD CD (#0803926540)). Balance: $17,308.82
E. 2006 Farmers & Merchants Bank POD CD (# 0803926540) naming Appellant, Dorothy Knowles and Burnett Knight as beneficiaries. Balance: $18,097.47

The circuit court appointed a magistrate to conduct an evidentiary hearing on the complaint and consider the parties’ legal arguments. The testimony at the hearing concerned whether, despite the apparent nature of the accounts, Mrs. Brown actually intended that all her children share the funds equally after her death. The magistrate ultimately issued a report concluding that section 655.79, Florida Statutes, governed the disposition of all the above-listed accounts, and further that Appellee had satisfied section 655.79, which creates a presumption that title to a joint deposit account vests in the surviving owner(s) and provides that the presumption may be overcome with clear and convincing proof of contrary intent. Specifically, the magistrate determined

[Appellee] has demonstrated by clear and convincing evidence, which includes the admissions of Defendant, that the decedent’s intent was for her “cash accounts,” including her certificates of deposit, to first be used to pay expenses associated with her death and the balance to be divided equally among her six children.

Accordingly, the magistrate recommended that all funds be deposited into the Estate account. The circuit adopted the magistrate’s report in toto.

Appellate review of the trial court’s adoption and ratification of a magistrate’s report and recommendation is for abuse of discretion. See generally Vargas v. Deutsche Bank Nat. Trust Co., 104 So.3d 1156, 1165 (Fla. 3d DCA 2012); Burnstine v. Townley, 976 So.2d 624, 626 (Fla. 5th DCA 2008). Examining the magistrate’s report in the instant case, we conclude first that section 655.79, by its express terms, applies only to joint deposit accounts — i.e., accounts bearing the names of two or more co-owners — and not to POD accounts. The statute reads, in pertinent part:

655.79 Deposits and accounts in two or more names; presumption as to vesting on death.—
(1) Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons shall be presumed to have been intended by such persons to provide that, upon the death of any one of them, all rights, title, interest, and claim in, to, and in respect of such deposit account ... vest in the surviving person or persons....
(2) The presumption created in this section may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent. ...

§ 655.79, Fla. Stat. (2007) (emphasis added). Neither of the three POD accounts at issue is a “deposit account in the names of two or more persons.” Consequently, the magistrate erred in applying the statutory presumption in section 655.79 and, more importantly, the mechanism for overcoming the presumption to the POD accounts.

The magistrate should have relied on section 655.82, Florida Statutes, which governs POD accounts. It provides that a “Pay-on-death designation” means the designation of:

A beneficiary in an account payable on request to one party during the party’s lifetime and on the party’s death to one or more beneficiaries, or to one or more parties during their lifetimes and on death of all of them to one or more beneficiaries.

§ 655.82(l)(h)l„ Fla. Stat. (2007). A “party” is “a person who, by the terms of an account, has a present right, subject to request, to payment from the account other than as a beneficiary.” § 655.82(l)(f), Fla. Stat. (2007). A “beneficiary” is “a person named as one to whom sums on deposit in an account are payable on request after death of all parties .... ” § 655.82(l)(b), Fla. Stat. (2007). Regarding ownership of the funds in a POD account when the account owner dies, the statute provides, “On the death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries.” § 655.82(3)(b), Fla. Stat. (2007) (emphasis added). No rebuttable presumption applies. Because the magistrate applied the incorrect statute to the POD accounts, the trial court abused its discretion in adopting the portions of the magistrate’s report and recommendations relating to those accounts.

However, we find in the record competent substantial evidence supporting the magistrate’s finding that Appellee overcame the statutory presumption as to Mrs. Brown’s intended disposition of the two joint accounts denoting Appellant as a co-owner. “Where a general master has been appointed for fact-finding and to recommend disposition of pending issues, the trial court is bound by the general master’s factual findings unless, they are not supported by competent substantial evidence or are clearly erroneous.” Garcia v. Garcia, 743 So.2d 1225, 1226 (Fla. 4th DCA 1999). The trial court should approve the master’s factual findings and recommendations unless the master has “misconceived the legal effect of the evidence.” Id. (quoting Fodor v. Fodor, 379 So.2d 466, 468 (Fla. 4th DCA 1980)). The trial court here correctly adopted the magistrate’s report and recommendations regarding the joint accounts.

Accordingly, we affirm the final order on appeal as to disposition of the two joint accounts — 1995 Capital City Bank CD (# 821561825) and 1997 Capital City Bank CD (# 151348043). We reverse the order as to disposition of the three POD accounts — 1998 Wachovia POD CD (#011832050719921); 2006 Farmers & Merchants Bank POD CD (# 0803926540); and 2006 Farmers & Merchants Bank POD CD (# 0803926540) — and remand for entry of a revised order consistent with this opinion.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

BENTON and WETHERELL, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Arthur ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1045.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2014.

      Arthur Ross, pro se.
   PER CURIAM.

Affirmed. See Martin v. State, 888 So.2d 661 (Fla. 2d DCA 2004); Austin v. State, 968 So'.2d 1049 (Fla. 5th DCA 2007); State v. Manning, 839 So.2d 849 (Fla. 5th DCA 2003); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

DAVIS, C.J., and CRENSHAW and BLACK, JJ., Concur.


text:
    Shereon Leonard DUKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2415.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Ellison v. State, 132 So.3d 291 (Fla. 4th DCA 2014).

DAMOORGIAN, C.J., CIKLIN and FORST, JJ., concur.


text:
    Jeanne E. CHARLES, Appellant, v. H & R BLOCK BANK, Appellee.
    No. 4D13-2895.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.
    Ramon Rubio of the Law Office of Ramon Rubio, P.L., Fort Lauderdale, for appellant.
    Wm. David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale, for ap-pellee.
   PER CURIAM.

In this mortgage foreclosure case, we accept appellee’s concession that the trial court erred in granting appellee final summary judgment because appellee did not properly serve pleadings, including an amended complaint, motion for summary judgment and hearing notice, on appellant at the designated e-mail address. Accordingly, we reverse this case and remand it to the trial court for further proceedings.

Reversed and Remanded.

GROSS, TAYLOR and MAY, JJ„ concur.


author: LEWIS, C.J. BENTON, J.,

text:
    Kevyn TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5633.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2014.
    Rehearing Denied Oct. 31, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender; Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, C.J.

In this direct appeal, Appellant, Kevyn Terry, argues that the trial court erred in denying his unopposed motion for a continuance. Notwithstanding the State’s concession of error, we affirm. Appellant, who pled nolo contendere to the charged offenses, did not reserve the right to appeal the denial of his motion for a continuance, and the order denying his motion was not dispositive. See Fla. R. App. P. 9.140(b)(2)(A)(i) (providing that a defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved); Williams v. State, 134 So.3d 975, 976 (Fla. 1st DCA 2012) (holding that although the appellant reserved the right to challenge the competency order on appeal, the order was not legally dispositive and was, therefore, not cognizable on appeal); M.N. v. State, 16 So.3d 280, 281 (Fla. 2d DCA 2009) (en banc) (affirming the order placing the appellant on. probation, which wás entered pursuant to a nolo contendere plea, because the challenged order on the appellant’s motion to continue was not disposi-tive).

AFFIRMED.

MARSTILLER, J., concurs.

BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

I would accept the state’s concession of error in this case, which involved the denial of an initial motion for continuance filed by replacement counsel who had actually made an appearance in the case. See generally Madison v. State, 132 So.3d 237, 239 (Fla. 1st DCA 2013) (reversing for failure to grant a successive motion for continuance where “replacement counsel had [reportedly] agreed to take Madison’s case if the continuance was granted”). The state’s brief asserts not only that denial of the motion for continuance was an abuse of discretion but also that appellant’s “plea was not voluntary.”

      . We find the dissent's reliance upon Madison v. State, 132 So.3d 237 (Fla. 1st DCA 2013), to be misplaced. Although we reversed the appellant’s convictions and sentences in that case based upon our conclusion that the trial court erred in denying the appellant's second motion for continuance, there was no reservation of rights issue given that the appellant proceeded to trial instead of pleading.


author: CIKLIN, J.

text:
    Derek KNUDSON, Appellant, v. Monique DROBNAK, Appellee.
    No. 4D13-3714.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.
    Roger Levine and Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and Charles A. Sullivan of Sullivan & Sullivan, Yero Beach, for appellant.
    No brief filed on behalf of appellee.
   CIKLIN, J.

Derek Knudson (“father”) appeals from an order modifying child support. He raises multiple issues on appeal, only one of which warrants reversal. The father asserts that the trial court’s calculation of arrearages erroneously included childcare costs not actually incurred by Monique Drobnak (“mother”). Because the record confirms the father’s contention, we reverse and remand for the trial court to recalculate the arrearages.

Some years after the parties’ marriage was dissolved, the father petitioned for a modification of his child support obligation based on a reduction in his income. During the hearing on the father’s petition, the mother testified that she was unemployed for a six-month period ending in December 2012. Additionally, an exhibit the mother submitted at trial reflected that because she was not working outside of the home, she incurred no child care costs between June 2012 and November 2012.

The court found a substantial change in circumstances and reduced the father’s child support obligation retroactive to April 2012. The mother’s childcare expenses were included in the court’s calculation of the modified child support obligation. However, the order on appeal contains no indication that the father’s ar-rearages were credited for the period of time the mother did not actually incur childcare expenses. It was error for the trial court to include in the arrearages childcare expenses that were not incurred by the mother. See § 61.30(7), Fla. Stat. (2011) (requiring, for certain purposes, “incurred” childcare costs to be added to the basic obligation in calculating child support); G.S.P. v. KB., 30 So.3d 667, 669-70 (Fla. 2d DCA 2010) (remanding to trial court to adjust child support obligation in modification order where evidence reflected that child support amount included childcare costs that were not incurred after a specified date); Anderko v. Nicholson, 997 So.2d 519 (Fla. 1st DCA 2008) (finding error in award of childcare costs in the absence of evidence they were incurred).

Accordingly, we remand to the trial court to recalculate the arrearages, subtracting childcare expenses for the months the mother did not incur them. In all other respects, we affirm.

Affirmed in 'part, reversed in part, and remanded with instructions.

GROSS and MAY, JJ., concur.


text:
    Steven Jermaine DIXON, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT and Krisanne Marie Taipalus, Appellees.
    No. 4D14-1678.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.
    Steve Dixon, Loxahatchee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

We accept the State’s concession of error, vacate the Final Administrative Support Order, and remand to the Department of Revenue for further proceedings.

Reversed and remanded.

DAMOORGIAN, C.J., STEVENSON and CIKLIN, JJ., concur.


text:
    Delseta M. HESLOP, Appellant, v. The TOWNHOMES OF PLANTATION CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D13-4803.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.

      Margery E. Golant, Stuart M. Golant and Richard R. Widell of Golant & Golant, Boca Raton, for appellant.
    Jeremy M. Zubkoff of Law Offices of Jeremy M. Zubkoff, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

We affirm the circuit court’s post-judgment orders: (1) denying the defendant’s motion to quash service and to vacate foreclosure sale; (2) overruling the defendant’s objection to sale; (3) denying the defendant’s emergency amended motion to vacate final judgment; (4) denying the defendant’s emergency motion for reconsideration; and (5) denying the defendant’s emergency motion to preclude issuance of writ of possession. However, we remand for the circuit court to amend the final judgment to reflect that it was entered as a final summary judgment upon the plaintiffs motion for summary judgment, not as a final default judgment upon the plaintiffs motion for final default judgment.

Affirmed and remanded.

WARNER, STEVENSON and GERBER, JJ., concur.


text:
    Renette GABRIEL and Jean Robert Dorestin, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 4D13-3830.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.
    Joshua A. Blacksten and Vyacheslav Borshchukov Of Duboff Law Firm, North Miami, for appellants.
    David C. Borucke and Aram P. Megeri-an of Cole Scott & Kissane, P.A., Tampa, for appellee.
   PER CURIAM.

Based on appellee’s confession of error, we agree that appellants’ purported assignment of benefits was- invalid and we reverse the summary judgment entered below.

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


text:
    Marisa Oliveira ALMEIDA, Appellant, v. JP MORGAN CHASE BANK, N.A., Appellee.
    No. 4D13-3639.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.
    Walter Strauss of Walter Strauss, P.A., Deerfield Beach, for appellant.

      Joseph D. Wargo and Susan Capote of Wargo & French, LLP, Miami, for appel- • lee.
   On Confession of Error

PER CURIAM.

The defendant appeals from the circuit court’s final judgment of foreclosure following the court’s order granting the plaintiff’s motion for summary judgment. The defendant argues, among other things, that her affidavit in opposition to the motion for summary judgment created a genuine issue of material fact as to whether she was in default on her mortgage payments. The plaintiff concedes this argument has merit and that the court’s order granting summary judgment and final judgment of foreclosure should be reversed. We agree.

Reversed and remanded for further proceedings.

WARNER, GROSS and GERBER, JJ„ concur.


text:
    Norrel SUTHERLAND and Nadina Sutherland, Appellants, v. Brian ALLISON, Deputy Perez and Ric L. Bradshaw, in his official capacity as Sheriff of Palm Beach County, Florida, Appellees.
    No. 4D13-1573.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.
    Rehearing Denied Oct. 20, 2014.
    G. William Alen, Jr., Fort Lauderdale, for appellants.
    Harriet R. Lewis and Gary Oldehoff of Lewis, Stroud & Deutsch, P.L., Boca Ra-ton, for appellee Ric L. Bradshaw.
   PER CURIAM.

Affirmed. See Amador v. Fla. Bd. of Regents ex rel. Fla. Int’l Univ., 830 So.2d 120 (Fla. 3d DCA2002).

WARNER, CONNER and KLINGENSMITH, JJ., concur.


text:
    Gibson PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2418.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.
    Gibson Paul, Perry, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Because appellant’s related criminal case is currently the subject of a direct appeal, we affirm the circuit court’s denial of his motion to return property seized at the time of his arrest. Cf. McKeever' v. State, 764 So.2d 688, 689 (Fla. 1st DCA 2000) (observing that once the “direct appeal concludes[,] ... the trial court cannot rely on the state’s unsupported assertion that it needs to retain private property.”).

Affirmed.

WARNER, GROSS and MAY, JJ., concur.


text:
    Clifford Leon REID, Petitioner, v. DEPARTMENT OF CORRECTIONS, Florida Commission on Offender Review, et al., Respondents.
    No. 1D14-1212.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2014.
    Rehearing Denied Nov. 4, 2014.
    Clifford L. Reid, pro se, Petitioner.
    Jennifer Parker, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee; Sarah J. Rumph, General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

WOLF, BENTON, and MAKAR, JJ., concur.


author: WARNER, J.

text:
    MCG FINANCIAL SERVICES, L.L.C. d/b/a Approved Associates, also d/b/a NHC Hospitality Consultants & Accountants, Inc. and Joel Mason, Appellants, v. TECHNOGROUP, INC., d/b/a Accelerated Business Solutions, Appellee.
    No. 4D13-1470.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2014.

      Ronald E. D’Anna of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for appellants.
    Lynne S.K. Ventry of Lynne S.K. Ven-try, P.A., Delray Beach, for appellee.
   WARNER, J.

After appellants prevailed on the breach of contract and fraud claims brought by the appellee, they moved for attorney’s fees based upon a provision in the contract. Appellee then defended, claiming that appellants were not a party to the contract, even though it claimed they were the real parties in interest in its complaint and at trial. The trial court agreed and denied attorney’s fees. We reverse, concluding that appellee is estopped from disavowing its contention that appellants were bound by the contract.

In its complaint, appellee, Technogroup, d/b/a Accelerated Business Solutions (ABS), alleged that it entered into a contract for lease and maintenance of a copier. Although the contract showed that it was to be billed to Lawen Corp., ABS alleged in its complaint that the contract was signed by appellant, Joel Mason, on behalf of his corporation MCG Financial Services LLC, doing business as Approved Associates and Joel Mason individually. It sued both for breach of contract and fraud as to Mason individually. As part of the allegations, it sought attorney’s fees under the contract. MCG and Mason filed an answer and affirmative defenses. They also demanded attorney’s fees under the contract.

At the non-jury trial, ABS admitted the contract without objection. In its case in chief, ABS published portions of the deposition of Mason in which he admitted that he signed the contract for MCG and not for Lawen. Both counsel also stipulated that MCG was the real party in interest. MCG’s predecessor in interest, Lawen, was named in the contract, because ABS’ sales agent simply had not changed the title to reflect that the agreement was with MCG. In his own testimony, Mason acknowledged the contract and the intention to bind MCG. MCG defended on the ground that it had paid a collection agency all sums that were due and received a release. Ultimately, the trial court found in favor of Mason and MCG.

MCG and Mason then moved for attorney’s fees relying on the contractual provision allowing fees. At the hearing, ABS was represented by a new attorney who argued that she was not bound by what ABS’ prior attorney had alleged. ABS now claimed that the contract was between ABS and Lawen, not between ABS and MCG/Mason. The trial court accepted this argument and denied MCG and Mason fees because they were not parties to the contract.' MCG and Mason appeal the denial of fees.

ABS is estopped from arguing, in opposition to the contractual provision for attorney’s fees, the completely inconsistent position that MCG and Mason were not parties to the contract, where it had based its case on its claim that MCG and Mason were bound by the contract. “[L]itigants are not permitted to take inconsistent positions in judicial proceedings and [ ] a party cannot allege one state of facts for one purpose and at the same action or proceeding deny such allegations and set up a new and different state of facts inconsistent thereto for another purpose.” Fed’d Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38, 41 (Fla. 1st DCA 1970). For instance, in Ross v. Hacker, 284 So.2d 399 (Fla. 3d DCA 1973), Hacker brought suit, for specific performance of a contract for a sale of real property assigned to him. Ross successfully defended by arguing that the contract was cancelled prior to its assignment. Subsequently, Ross sought attorney’s fees under the contract. Hacker argued that because the contract was cancelled prior to its assignment there could be no attorney’s fees awarded under the contract. The trial court denied fees. The appellate court reversed and ruled that Hacker, who had sought specific performance of the contract, was estopped from claiming that the contractual attorney’s fees provision was terminated when the contract was can-celled.

Similarly, in Nudel v. Flagstar Bank, 60 So.3d 1163 (Fla. 4th DCA 2011), we relied on Ross and held that a bank could not take inconsistent positions with respect to the applicability of a mortgage so as to avoid attorney’s fees. There, Flagstar sued to foreclose Nudel’s mortgage and then sought attorney’s fees. Nudel moved to dismiss on grounds that the mortgage had not been assigned to Flagstar until after the suit had been filed. The court granted the motion to dismiss and Nudel sought an award of attorney’s fees which were denied. We reversed the denial of fees, because Flagstar sought affirmative relief under the mortgage and could not subsequently take the position that the provisions of the mortgage did not apply to it.

In this case, as in Ross and Nudel, ABS sought to enforce the contract against MCG and Mason but then disavowed the contract when it came to the assessment of attorney’s fees pursuant to its provisions.

. ABS argues that it is not estopped from challenging the award of fees because, although ABS sued on a contract, the contract was between ABS and Lawen. Because it was unsuccessful in its argument that Mason had authority to bind Lawen and should be responsible for honoring the contract, ABS argues, it shouldn’t be required to pay fees under the contract. The trial, however, belies this contention. All parties agreed that the contract was signed by Mason, and all parties stipulated that Mason and MCG were the parties in interest to the contract. ABS claimed that Mason and MCG were bound by the contract, and Mason and MCG never argued otherwise. Instead, they claimed that they had been released from the contract’s obligations by payment of sums due.

Moreover, even if ABS were not es-topped from denying the contract, the trial court’s conclusion that MCG and Mason were not parties to the contract is contrary to all the evidence and stipulations at trial. The cases on which ABS relied in convincing the trial court to deny fees are both distinguishable. In both David v. Richman, 568 So.2d 922 (Fla.1990), and Gibson v. Courtois, 589 So.2d 459 (Fla.1989), motions for fees were denied because the court found that the contract on which the request was based was never formed between the parties. The David court cited Blackhawk Heating and Plumbing Co. v. Data Lease Financial Corp., 302 So.2d 404, 408 (Fla.1974), which held that an agreement may be binding if the parties agree on the essential terms and understand and intend the agreement to be binding on them. David, 568 So.2d at 924. In the present case, a contract was formed because the parties agreed on the essential terms and intended to be bound. ABS sued on the contract and alleged that MCG and Mason were bound by it. MCG stipulated it had intended to bind MCG when Mason signed the contract. The mistake in the name on the contract was not relied on by ABS as a ground for defeating the contract until it lost, and MCG and Mason sought attorney’s fees under the contract.

For- the foregoing reasons, we reverse the order denying fees and remand for the court to determine the amount of fees due.

STEVENSON and GERBER, JJ., concur.


text:
    REAL ESTATE MORTGAGE NETWORK, INC., Appellant, v. Richard KNIGHT and Janet Knight, Appellees.
    No. 4D13-1880.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2014.

      Melissa A. Giasi of Kass Shuler, P.A., Tampa, for appellant.
    David A. Jaynes of Law Office of David A. Jaynes, West Palm Beach, for appel-lees.
   WARNER, J.

Real Estate Mortgage Network, Inc. (“REMN”), mortgagee and the plaintiff below, appeals a final summary judgment in favor of mortgagors Richard and Janet Knight (“Knights”). The trial court found REMN failed to meet a condition precedent to foreclosure by failing to comply with certain federal regulations. Because there are disputed issues of fact, we reverse.

REMN sought to foreclose the Knights’ mortgage. The mortgage was federally insured and provided:

In many circumstances regulations issued by the Secretary [of Housing and Urban Development (“HUD”) ] will limit Lender’s rights in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize . acceleration or foreclosure if not permitted by regulations of the Secretary.

As an affirmative defense, the Knights alleged that REMN had failed to comply with certain HUD regulations, which the Knights argued were conditions precedent to foreclosure. Those regulations require lenders to make certain loss mitigation efforts prior to initiating foreclosure. The Knights moved for summary judgment and attached an affidavit stating that REMN had not engaged in any loss mitigation and had never contacted them with respect to any mortgage modification. REMN filed copies of sworn interrogatory answers alleging their compliance with the loss mitigation requirements of 24 C.F.R. § 203.605, including sending various documents to the Knights. The court granted summary judgment finding that the action was premature, because REMN had not fulfilled a condition precedent to foreclosure.

REMN argues on appeal that the court erred in applying the HUD regulations ' and finding that they were a mandatory condition precedent. We have held that non-compliance with HUD regulations may be asserted as an equitable defense in mortgage foreclosure proceedings. Cross v. Fed. Nat’l Mortg. Ass’n, 359 So.2d 464, 465 (Fla. 4th DCA 1978).

REMN is entitled to reversal, however, because its sworn interrogatories stating that loss mitigation efforts had been made and the Knights’ affidavits stating that they had never heard from the bank reveal a disputed issue of material fact. Therefore, summary judgment dismissing the foreclosure was error. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (summary judgment is proper only if the record shows no genuine issue of material fact).

Reversed and remanded for further proceedings.

STEVENSON and GERBER, JJ„ concur.


text:
    2010-3 SFR VENTURE, LLC, Appellant, v. Melissa A. GARCIA; Unknown Spouse of Melissa A. Garcia; Unknown Tenant I; Unknown Tenant II; Boca Gardens Homeowners Association, Inc.; Capital One Bank; Portfolio Recovery Associates, LLC; and any unknown heirs, devisees, grantees, creditors, and other unknown persons or unknown spouses claiming by, through and under any of the above named appellees, Appellees.
    No. 4D13-1992.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2014.
    Curtis A. Wilson of McCalla Raymer, LLC, Orlando, for appellant.
    John S. Bernstein of Tucker & Tighe, P.A., Fort Lauderdale, for appellee Boca Gardens Homeowners Association, Inc.
   CIKLIN, J.

Appellant, 2010-3 SFR Venture, LLC (“the bank”), challenges a final judgment quieting title to property in favor of the Boca Gardens Homeowners Association, Inc. (“the association”), which extinguished the mortgage on the residential property held by the bank. We agree with the bank that, despite an adjudication on the merits in a prior action to foreclose the mortgage, res judicata does not render the mortgage unenforceable by precluding enforcement actions on subsequent defaults. The trial court erred in quieting title against the bank’s valid and enforceable mortgage and therefore we reverse.

In October 2006, the borrower, Melissa Garcia, executed a note and mortgage in order to purchase the property at issue. The mortgage and note were acquired by the bank and had a maturation date of November 2036. Garcia defaulted on the note shortly thereafter. Additionally, she failed to pay homeowner association fees assessed by the association.

The bank’s predecessor in interest filed suit to-foreclose in August 2007, alleging a default in the payment due on April 1, 2007 and accelerating the balance due. The complaint named the association as a co-defendant because of its potential junior lien interest.

Because the bank delayed the prosecution of its foreclosure action, the trial court dismissed the suit. The bank filed a second foreclosure action as a result of the trial court’s involuntary dismissal of the first.

Between the dismissal of the first action and the bank’s filing of its second foreclosure action, the association obtained title to the subject property by foreclosing its own homeowner association lien and purchasing the property at the court-ordered foreclosure sale.

As to the bank’s second foreclosure action, the complaint, again, alleged a default on a scheduled payment; indicated that all payments left due and owing were accelerated; and named the association as a code-fendant in an effort to foreclose its inferior homeowner association fee lien. The association moved for final summary judgment, arguing that the involuntary dismissal of the bank’s first foreclosure action operated as an adjudication on the merits pursuant to Florida Rule of Civil Procedure 1.420(b), and thus, the bank was barred from relitigating the claim. The trial court granted the association’s summary judgment motion.

In addition to filing its motion for summary judgment, the association also filed a counterclaim to quiet title on the basis of res judicata, therein seeking a court order removing the bank’s mortgage as an encumbrance on the property. At trial on the association’s counterclaim, the association argued that, because res judicata barred the bank from filing further foreclosure suits, the bank’s first mortgage was no longer enforceable as a lien on the property.

Following the trial, the court entered judgment on the counterclaim in favor of the association. The final judgment, which is the subject of the instant appeal, provides that the association’s title is quieted against the bank’s claim, that the bank’s mortgage is released and no longer encumbers the property, and that the bank is enjoined from seeking to foreclose the mortgage.

Before us, the bank correctly argues that — regardless of the adjudication on the merits in the first action — res judi-cata does not preclude a subsequent action based on a subsequent default. Therefore, as the bank correctly asserts, the trial court erroneously quieted title in that a valid and enforceable mortgage does not constitute a cloud on title.

“[T]he doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit.” Singleton v. Greymar Assocs., 882 So.2d 1004, 1008 (Fla.2004). This is because “[a] new default, based on a different act or date of default not alleged in the dismissed action, creates a new cause of action.” Star Funding Solutions, LLC v. Krondes, 101 So.3d 403, 403 (Fla. 4th DCA 2012) (citing Singleton, 882 So.2d at 1005). Accordingly, the holding applies even where the prior action was adjudicated on the merits. See Singleton, 882 So.2d at 1007 (citing Capital Bank v. Needle, 596 So.2d 1134, 1138 (Fla. 4th DCA 1992)); cf. U.S. Bank Nat’l Ass’n v. Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA 2014) (holding that a subsequent default creates a new cause of action for statute of limitations purposes even where a prior case was dismissed on its merits).

Neither the acceleration of the debt nor the adjudication on the merits in the bank’s first foreclosure action triggered the application of res judicata to bar actions based on subsequent defaults. As we recently explained, “[w]hile a foreclosure action with an acceleration of the debt may bar a subsequent foreclosure action based on the same event of default, it does not bar subsequent actions and acceleration based upon different events of default.” Evergrene Partners, Inc. v. Citibank, N.A., 143 So.3d 954 (Fla. 4th DCA 2014) (citing Singleton, 882 So.2d at 1008). Thus, the mortgage remains enforceable based on subsequent defaults.

Because the bank’s mortgage may be enforced through an action alleging a subsequent default, it is a valid lien and does not constitute a cloud on title to support a quiet title claim. See Evergrene, 143 So.3d 954 (“ ‘[EJach payment default ... created a basis for a subsequent foreclosure.... Accordingly, the note and mortgage remain a valid and enforceable lien against Plaintiffs property, and do not, as a matter of law, constitute a cloud on Plaintiff’s property supporting a quiet title claim.’ ” (quoting Kaan v. Wells Fargo Bank, N.A., 981 F.Supp.2d 1271, 1274 (S.D.Fla.2013))).

Accordingly, we remand this case to the trial court with directions to vacate the final judgment quieting title and to thereafter conduct such further proceedings as may be appropriate.

We find the remaining issues raised by the bank to be either without merit or moot in light of our holding.

Reversed and remanded with instructions.

STEVENSON and FORST, JJ., concur.

      . In pertinent part, rule 1.420(b) provides, "Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.”

      . Similar reasoning extends to application of the statute of limitations to a subsequent foreclosure action based on a different period of default. See Evergrene, 143 So.3d 954; Bar-tram, 140 So.3d at 1013.


text:
    Howard Fitzgerald ORR, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4800.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2014.
    Howard Fitzgerald Orr, Moore Haven, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   On Confession of Error

PER CURIAM.

The State concedes that this matter should be remanded for the trial court to consider appellant’s amended motion for postconviction relief which included the oath, the court found lacking in the original motion. See Spera v. State, 971 So.2d 754 (Fla.2007).

The trial court in its order found that, even if properly sworn, the motion would still be denied as untimely because appellant did not appeal following the judgments and sentences entered on October 14, 2010. As noted in the motion, and reflected in this Court’s records, appellant did in fact appeal his convictions and sentences in circuit court case number 2009CF011153AXX. Orr v. State, 83 So.3d 738 (Fla. 4th DCA 2012) (4D10-1575) (table). Our mandate affirming these convictions and sentences issued on May 30, 2012. Thus, the postconviction motion filed December 5, 2012 was timely as to this case number.

We therefore reverse and remand for further proceedings.

Reversed and Remanded.

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


text:
    Brian W. AREND, Petitioner, v. STATE of Florida, Respondent.
    No. 4D14-2488.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2014.
    Michael D. Weinstein of Michael D. Weinstein, P.A., Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of prohibition is granted. Petitioner’s motion to disqualify the trial judge was legally sufficient. See Fla. R. Jud. Admin. 2.330(d)(1). The facts alleged would prompt a reasonably prudent person to fear that he could not get a fair hearing. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla.1990); Franco v. State, 777 So.2d 1138, 1140 (Fla. 4th DCA 2001) (recognizing that a judge’s hostility toward counsel can, in some circumstances, provide a reasonable basis for a client to fear bias); Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981).

STEVENSON, GROSS and TAYLOR, JJ., concur.


author: GROSS, J.

text:
    Yulia Forest KOHL, Appellant, v. Norman Dean KOHL, Jr., Appellee.
    No. 4D13-1194.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2014.

      James P. Curry, Curry, PL, Jupiter, for appellant.
    Bryan J. Yarnell of Gilbert Yarnell, Palm Beach Gardens, for appellee.

      . See, e.g., State v. Lankford, 102 A. 63 (Del. 1917); Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206, 208 (1920); Kathleen K. v. Robert B., 150 Cal.App.3d 992, 198 CaI.Rptr. 273, 276-77 (1984); Berner v. Caldwell, 543 So.2d 686, 690 (Ala. 1989), overruled on other grounds by Ex parte Gen. Motors Corp., 769 So.2d 903 (Ala. 1999); Long v. Adams, 175 Ga.App. 538, 333 S.E.2d 852, 854-55 (1985); Doe v. Johnson, 817 F.Supp. 1382, 1393 (W.D.Mich.1993).

   GROSS, J.

The circuit court dismissed appellant Yulia Forest Kohl’s claim of negligent transmission of a sexually transmissible disease with prejudice for her failure to track the language of section 384.24, Florida Statutes (2013). An issue on appeal is one of first impression for this state: whether a cause of action for negligent transmission of a sexually transmissible disease may be asserted upon common law negligence principles. Although we hold that such a claim may sound in common law negligence, we nonetheless affirm the dismissal of the complaint; the pleading failed to demonstrate even the defendant’s constructive knowledge that he carried a sexually transmissible disease, much less the actual knowledge that would be required to state a claim for transmitting the specific disease at issue in this case.

The Pleadings in the Circuit Court

On an appeal from an order granting a motion to dismiss, we “treat the factual allegations of the complaint as true and ... consider those allegations in the light most favorable to the plaintiff[ ].” Hollywood Lakes Section Civic Ass’n v. City of Hollywood, 676 So.2d 500, 501 (Fla. 4th DCA 1996) (citing Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1030 (Fla. 4th DCA 1994)).

In January 2009, the former wife filed a two-count petition in the circuit court, seeking (I) to dissolve her marriage with appellee Norman Kohl (“the former husband”) and (II) to extract damages from him “for assault by way of the transmission of the” human papillomavirus (“HPV”). Upon the former husband’s motion, the trial court severed Count II, permitting entry of an amended final judgment of dissolution of marriage.

By June 2012, the former wife’s second amended complaint attempted to state a cause of action for negligent transmission of a sexually transmissible disease, specifically HPV. This claim was based upon the former husband’s failure to warn the former wife during their marriage that he had HPV. The disease manifested in June 2008, when the former wife learned from a routine pap smear that she had contracted “high risk” HPV, resulting in the development of “preeancerous cell changes.”

The complaint asserted two bases to establish the former husband’s constructive knowledge that he had the virus. First, the pleading alleged that the former husband “engaged in extra-marital affairs and hired multiple prostitutes and escorts during the course of their marriage.” Second, the complaint asserted that the former husband “knew or should have known he was exposed to HPV as his ex-wife [ (prior to the former wife) ] had undergone a hysterectomy.” There were no allegations that the former husband had been diagnosed with HPV or that he had experienced symptoms of the disease.

Given such characterization of the former husband’s knowledge that he carried HPV, the former wife alleged that her former husband “had a duty of reasonable care ... either to warn her or take other precautions to prevent the spread of the [HPV] with which [former husband] was infected.” By failing to issue such a warning, the pleading alleged that the former husband breached this duty and, in turn, proximately caused the former wife to contract HPV, resulting in damages for “past and future pain and suffering, past and future medical expenses, past and future mental pain and suffering, and past and future loss of full function of mind and body.”

Procedural Posture

The former husband moved to dismiss the negligence count, asserting pursuant to the Second District’s decision in Gabriel v. Tripp, 576 So.2d 404 (Fla. 2d DCA 1991), that a civil cause of action for negligent transmission of a sexually transmissible disease is cognizable only where the plaintiff tracks the language of section 384.24, Florida Statutes (2018). To satisfy the statute, the former husband contended that the former wife was required to allege (1) that he had actual knowledge he “was infected with one of the sexually transmissible diseases enumerated in section 384.24” and (2) that he “had been informed that said disease could be communicated through sexual intercourse.” The former husband argued the complaint alleged “no basis for asserting [he] ‘knew’ he had HPV.”

The circuit court dismissed the negligence count with prejudice, due primarily to the former wife’s failure to “track the allegations required for a civil action predicated upon § 384.24 Florida Statutes.” Classifying the matter as an “attempt to create a new cause of action,” the trial court explained that “Florida courts have required plaintiffs to strictly track th[e] statute.” Thus, the former wife failed to state a cause of action in negligence, since she did not assert “actual knowledge of infection on the part of the tortfeasor or actual knowledge that the infection could be transmitted through sexual intercourse.”

Statutory Violations and Negligence

“Because the issue of whether a com-' plaint is sufficient to state a cause of action is a question of law,” our review is de novo. James v. Crews, 132 So.3d 896, 898 (Fla. 1st DCA 2014) (citations omitted).

As developed by the common law, a cause of action for negligence arises where one’s “failure to use that degree of care which a reasonably careful person would use under like circumstances” causes injury. London v. Atl. Mut. Ins. Co., 689 So.2d 424, 425 (Fla. 4th DCA 1997). Common law negligence is open-ended and divorced from intent, Booth v. Mary Carter Paint Co., 182 So.2d 292, 299 (Fla. 2d DCA 1966), “allow[ing] the plaintiff to claim that any given conduct was negligent.” Dan B. Dobbs, The Law of Torts § 110, at 257 (2000). Its focus is on the relationship between the actor and person in fact injured. See, e.g., Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99,101 (1928).

While negligence has its roots in common law, legislative enactments play an important role in shaping standards of conduct. W. Page Keeton et al., Handbook on the Law of Torts § 35 (3d ed.1964). Proof that a defendant violated a statute — including a criminal statute— can be categorized in a negligence case in one of three ways, depending on the statute’s purpose:

(1) violation of a strict liability statute designed to protect a particular class of persons who are unable to protect themselves, constituting negligence per se;
(2) violation of a statute establishing a duty to take precautions to protect a particular class of persons from a particular type of injury, also constituting negligence per se; (3) violation of.any other kind of statute, constituting mere prima facie evidence of negligence.

Chevron U.S.A., Inc. v. Forbes, 783 So.2d 1215, 1219 (Fla. 4th DCA 2001) (quoting Grand Union Co. v. Rocker, 454 So.2d 14, 15 (Fla. 3d DCA 1984)).

Focusing on the final category, Floi’ida courts permit proof of a statutory violation to serve as prima facie evidence of negligence because “the standard of conduct or care embraced within such [a] legislative ... measure[ ] represents] a standard of at least reasonable care which should be adhered to in the performance of any given activity.’” Dusine v. Golden Shores Convalescent Ctr., Inc., 249 So.2d 40, 41-42 (Fla. 2d DCA 1971) (quoting Alford v. Meyer, 201 So.2d 489, 491 (Fla. 1st DCA 1967)); see also Fla. Std. Jury Instr. (Civ.) 401.9. Such statutory violation evidence thus will not overhaul the negligence cause of action, as “the claimant still needs to prove all elements of actionable negligence.” Tierney v. Black Bros. Co., 852 F.Supp. 994, 1000 (M.D.Fla. 1994) (citing deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198, 201 (Fla. 1973); Hurd v. Munford, Inc., 378.So.2d 86, 89 (Fla. 1st DCA 1979)).

Negligent Transmission of a Sexually Transmissible Disease

Nationwide, courts “have long imposed liability on individuals who have harmed others by transmitting communicable diseases,” paving the way for recognition of “a cause of action for the negligent transmission of sexually transmitted diseases.” John B. v. Superior Court, 38 Cal.4th 1177, 45 Cal.Rptr.3d 316, 137 P.3d 153, 159 (2006). While Florida courts have embraced this national consensus, see Hogan v. Tavzel, 660 So.2d 350, 351 n. 1 (Fla. 5th DCA 1995) (“Lawsuits on the negligent transmission of genital herpes have been recognized in this state.” (citation omitted)); Gabriel v. Tripp, 576 So.2d 404, 405 (Fla. 2d DCA 1991), Florida case law has suggested that such a suit must be predicated on a statutory violation.

This limitation on a common law cause of action derives from the application of section 384.24, Florida Statutes (2013), a criminal statute that makes it a first-degree misdemeanor to knowingly transmit certain sexually transmissible diseases.

See §§ 384.34, 775.082(4)(a), 775.083(l)(d), Fla. Stat. (2013). The statute provides in relevant part:

It is unlawful for any person who has chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, genital herpes simplex, chlamydia, nongonococcal urethritis (NGU), pelvic inflammatory disease (PID)/acute sal-pingitis, or syphilis, when such person knows he or she is infected with one or more of these diseases and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

§ 384.24(1), Fla. Stat. (2013).

In Gabriel, the Second District ostensibly made tracking section 384.24 a necessary component to a claim for negligent transmission of a sexually transmissible disease. There, the trial court dismissed a negligence suit in which the plaintiff attempted to track the language of section 384.24 and alleged she contracted genital herpes after engaging in sexual intercourse with the defendant. 576 So.2d at 404. The Second District agreed with the plaintiff that “such a negligence cause of action is cognizable in Florida.” Id. However, the court disagreed that a violation of section 384.24 constitutes negligence per se, holding that the statute is “not designed to protect a particular class of persons, but rather the public in general.” Id. at 405. With that ruling, we do not disagree.

From this determination, the Second District explained “that if a plaintiff is able to file a complaint that tracks section 384.24, that plaintiff will have presented prima facie evidence of negligence, not absolute proof of negligence.” Id. The court then took its reasoning a step further, however, by holding that

in order to state a cognizable cause of action for negligent transmission of a sexually transmissible disease, a plaintiff must allege that the defendant knew he or she was infected with one of the sexually transmissible diseases enumerated in section 38⅛.24, that the defendant had been informed that said disease could be communicated through sexual intercourse, and that the defendant had sexual intercourse with the plaintiff without informing the plaintiff of the presence of the disease and without securing the plaintiffs consent to sexual intercourse under such circumstances.

Id. (emphasis added). Since the plaintiff in that case “fail[ed] to set forth the allegations necessary to track section 384.24, Florida Statutes (1989),” the court held she failed “state a cognizable cause of action.” Id.

We disagree with Gabriel ⅛ broad holding that section 384.24 exclusively controls the elements of the negligence cause of action to which it applies. Unless “liability is limited or abrogated by legislative enactments,” Kitchen v. K-Mart Corp., 697 So.2d 1200, 1207 (Fla.1997), a plaintiff asserting common law negligence need not “establish the violation of a relevant safety statute or regulation.” Wenzel v. Boyles Galvanizing Co., 920 F.2d 778, 782 n. 1 (11th Cir.1991) (applying Florida law). Further, a statute accomplishes such displacement only where it “unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist.” Thornber v. City of Fort Walton Beach, 568 So.2d 914, 9Í8 (Fla.1990). Therefore, in a case of common law negligence based on the transmission of a sexually transmissible disease, section 384.24 does not exclusively delineate the elements of the cause of action.- Nor are the diseases specified in section 384.24 the only diseases that might form the basis of a negligence cause of action; even though HPY is not one of the diseases enumerated in the statute, its transmission could still form the basis of a common law negligence claim. A violation of section 384.24 is evidence of negligence, not a catalog of the (Civ.) 401.9.

The coexistence of common law negligence and a garden variety statutory violation is grounded in the common law’s role as “an evolving body of law.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 533 n. 28, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). The common law “ ‘must keep pace with changes in our society’ and ‘may [even] be altered when the reason for the rule of law ceases to exist, or when the change is demanded by public necessity or required to vindicate fundamental rights.’ ” Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1104 (Fla.2008) (quoting Stone v. Wall, 734 So.2d 1038,1043 (Fla.1999)). As one court has explained:

One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Dean Pound posed the problem admirably in his Interpretations of Legal History (1922) when he stated, ‘Law must be stable, and yet it cannot stand still.’

Hack v. Hack, 495 Pa. 300, 433 A.2d 859, 868-69 (1981). One way that common law negligence evolves with changes in society is that it incorporates contemporary standards of conduct evidenced by legislative enactments.

[Í5] This is not, therefore, a case tasking us with “creating” a new cause of action unrecognized at common law. See, e.g., Jews for Jesus, Inc., 997 So.2d at 1104 (recognizing that “the tort of false light did not exist at common law”); Estate of McCall v. United States, 134 So.3d 894, 915 (Fla.2014) (“At common law, Florida did not recognize a cause of action for wrongful death.” (citation omitted)). Negligence is a traditional .tort; negligent transmission of a sexually transmissible disease is merely a variant of it. We join the majority of states in recognizing negligent transmission of a sexually transmissible disease as a common law negligence action.

The Contours of the Claim

Our next task is to determine whether the former wife’s complaint stated a cause of action. “To state a claim for negligence, the plaintiff must allege the existence of a duty, breach of that duty, causation, and damages.” Horton v. Free man, 917 So.2d 1064, 1066 (Fla. 4th DCA 2006). Regarding the duty element, “ ‘imposition of a duty is nothing more than a threshold requirement that if satisfied, merely opens the courthouse doors.’ ” Demelus v. King Motor Co. of Fort Lauderdale, 24 So.3d 759, 763 (Fla. 4th DCA 2009) (quoting Whitt v. Silverman, 788 So.2d 210, 221 (Fla.2001)). As we have explained:

[Wjhether a duty exists is a question of law for the court. Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110 (Fla.2005). Crucial to the duty inquiry is “whether the defendant’s conduct foreseeably create[s] a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992). “[T]he zone of risk created by a defendant defines the scope of the defendant’s legal duty and the scope of the zone of risk is in turn determined by the foreseeability of a risk of harm to others.” Smith v. Fla. Power & Light Co., 857 So.2d 224, 229 (Fla. 2d DCA 2003).

Knight v. Merhige, 133 So.3d 1140, 1144-45 (Fla. 4th DCA 2014); see also Malicki v. Doe, 814 So.2d 347, 362 (Fla.2002) (“The core predicate for imposing liability is one of reasonable foreseeability—the cornerstone of our tort law.”).

“In applying the ‘foreseeable zone of risk’ test to determine the existence of a legal duty, the supreme court has focused on the likelihood that a defendant’s conduct will result in the type of injury suffered by the plaintiff.” Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So.2d 343, 345 (Fla. 4th DCA 1998). When a sexually transmissible disease—such as HPV—“is almost exclusively spread through sexual contact, it is foreseeable that one’s sexual partner is susceptible to the contagion if the infected partner is aware he has the disease or suffers from symptoms of the disease.” Deuschle v. Jobe, 30 S.W.3d 215, 219 (Mo.Ct.App.2000). As a consequence, a person who knows that he or she suffers such an illness has “a duty either to avoid sexual contact with uninfected persons or, at least, to warn potential sex partners that they have [it] before sexual contact occurs.” R.A.P. v. B.J.P., 428 N.W.2d 103, 108 (Minn.Ct.App.1988); see also B.N. v. K.K., 312 Md. 135, 538 A.2d 1175, 1179 (1988) (stating that an “infected person has a duty to take reasonable precautions— whether by warning others or by avoiding contact with them—to avoid transmitting the disease”); Hogan, 660 So.2d at 352 (recognizing that “[a] certain amount of trust and confidence exists in any intimate relationship, at least to the extent that one sexual partner represents to the other that he or she is free from venereal or other dangerous contagious disease” (quoting Kathleen K. v. Robert B., 150 Cal.App.3d 992, 198 Cal.Rptr. 273, 276-77 (1984)).

The linchpin of liability for imposing a legal duty to avoid negligent transmission of a sexually transmissible disease is the defendant’s knowledge that he or she harbors the disease. A duty will not lie where the defendant is unaware of the condition, since the risk created by his or her sexual activity is unforeseen. See Restatement (Second) of Torts § 289 cmt. b (1965) (stating that “[i]n order that an act may be negligent it is necessary that the actor should realize that it involves a risk of causing harm to some interest of another”).

In other states, courts require the plaintiff to “show that the defendant had actual or constructive knowledge that he or she was infected with the transmitted STD.” Endres v. Endres, 185 Vt. 63, 968 A.2d 336, 340 (2008) (emphasis added); Rossiter v. Evans, No. 08-1815, 2009 WL 5125922, at *3 n. 5 (Iowa Ct.App. Dec. 30, 2009) (“The majority of courts that have dealt with this issue have concluded that constructive knowledge of a sexually transmitted disease is sufficient for the imposition of liability.”); John B., 45 Cal.Rptr.3d 316, 137 P.3d at 160 (“[W]e are not persuaded that California should be the first jurisdiction in the country to limit liability for the negligent transmission of HIV only to those who have actual knowledge they are HIV positive.”); Berner, 543 So.2d at 689; McPherson v. McPherson, 712 A.2d 1043, 1046 (Me.1998); Deuschle, 30 S.W.3d at 219. The availability of a constructive knowledge showing is critical, since “[a] plaintiff will rarely be able to show that a defendant had actual knowledge of his or her infection.” Endres, 968 A.2d at 341.

In Florida, many negligence actions that are predicated upon the defendant’s knowledge apply the “actual or constructive knowledge” standard. See, e.g., Freeman v. BellSouth Telecomms., Inc., 954 So.2d 45, 46-47 (Fla. 1st DCA 2007) (owner’s duty to maintain his or her premises in a reasonably safe condition); Williams v. Joseph L. Rozier Machinery Co., 135 So.2d 763, 765 (Fla. 2d DCA 1961) (retailer of a defective product); Grant v. Thornton, 749 So.2d 529, 532 (Fla. 2d DCA 1999) (negligence against landlord). We see no reason to depart from the majority view incorporating actual or constructive knowledge into the elements of the tort here at issue, particularly in light of our legislature’s declaration that “sexually transmissible diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state and to visitors to the state.” § 384.22, Fla. Stat. (2013).

Applying an actual or constructive knowledge standard, our sister states have carved out two situations sufficient to impose a duty in negligence for transmitting a sexually transmissible disease. First, a defendant will have the requisite knowledge if he or she has been formally diagnosed with a sexually transmissible disease by a medical professional. See John B., 45 Cal.Rptr.3d 316, 137 P.3d at 160. Second, the existence of obvious symptoms — such as rashes, genital warts, or discharge — will suffice to impute constructive knowledge. See, e.g., M.M.D. v. B.L.G., 467 N.W.2d 645, 647 (Minn.Ct.App.1991) (“A reasonable person with recurring sores on the genitals, who also has been told by a physician that a herpes culture may be advisable, should know there is a reasonable possibility that herpes has been contracted. In addition, a reasonable person should know an acne-type condition on the genitals could be communicated to others through sexual contact.”); Meany v. Meany, 639 So.2d 229, 234 (La.1994) (“Certainly, the presence of open, oozing genital sores indicates a serious problem, whether or not a diagnosis exists. If a defendant has experienced an attack or has sought medical advice concerning such symptoms, he would likely be deemed by the courts to possess the requisite knowledge, whether or not an actual diagnosis could be proved.”).

As we discuss below, however, a requirement of actual knowledge to establish a legal duty is applicable where the disease at issue is HPV, which is uniquely prevalent and often not symptomatic.

The Instant Case

In this ease, the former wife’s complaint raises two allegations to infer the former husband’s knowledge of his HPV infection. Both are insufficient to satisfy even a constructive knowledge requirement, and are far below the actual knowledge standard applicable to HPV.

First, the complaint contended that the former husband engaged in “high-risk” sexual behavior, such as having sexual relations outside his marriage and sleeping with prostitutes. Second, it contends that the former husband “knew or should have known he was exposed to HPV as his ex-wife had undergone a hysterectomy.” Both grounds seek to extend liability beyond constructive knowledge, from what the defendant “should have known,” to what “may have happened” — a privacy invasion we believe “open[s] a door better left closed.” Doe v. Johnson, 817 F.Supp. 1382,1393 (WD.Mich.1993).

The complaint’s “high-risk” allegation is similar to one rejected in Endres, where a plaintiff asserting negligent transmission of HPV alleged her husband “knew that by engaging in an extramarital relationship he exposed himself to potential risk of becoming infected with an incurable infection which he could then transmit.” 968 A.2d at 338. Surveying Vermont case law and decisions from other jurisdictions, the court took a “narrower” approach, requiring “at least some evidence that [the] defendant had reason to know he was infected with an STD.” Id. at 341. We agree with the approach in En-dres, in that “constructive knowledge” encompasses only “[knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law.” Black’s Law Dictionary 888 (8th ed. 2004); see also Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720, 721 (1948). “Policy considerations strongly suggest that merely engaging in ‘high risk’ activity does not satisfy the should-have-known standard and does not, nor should it, impose a duty upon individuals to disclose previous high-risk behavior.” Timothy J. Hasken, A Duty to Kiss and Tell? Examining the Uncomfortable Relationship Between Negligence and the Transmission of HPV, 95 Iowa L. Rev. 985, 998 (2010).

From a logistical standpoint, developing the contours of “high-risk” behavior would be an unwieldy, unpredictable task. As the court explained in Johnson, 817 F.Supp. at 1394:

[imposition of a duty to disclose one’s “high risk” status raises a number of questions: as a matter of law, what is “high risk” activity? Who is in this “high risk” group? How should “high risk” be defined? Even if a workable definition of “high risk” were discovered, would a duty be imposed on non-high risk group members to disclose to every potential sex partner all prior sexual contacts with partners who were so-called “high risk” group members? Would the duty of disclosure encompass prior sexual contacts with others known to be “promiscuous” or “sexually active?” What are the equal protection implications of imposing such a standard on a class of people? What are the privacy implications of imposing such a standard on a class of people? Would the duty eventually extend to everyone who has had any sexual contact outside of a monogamous relationship?

Id. Like Johnson, we decline to open Pandora’s box by imposing a duty in negligence for engaging in “high risk” sexual behavior.

Similar logic bars the imposition of a legal duty based on the former wife’s allegation that the former husband knew of his HPV because his prior wife underwent a hysterectomy. A hysterectomy is “an operation to remove a woman’s uterus.” Rebecca L. Van Court, Uterine Fibroids and Women’s Right to Choose, 26 J. Legal Med. 507, 510 (2005) (citation omitted). It can be justified for myriad reasons, not the least of which include: fibroid tumors, endometriosis, prolapse of the uterus, ovarian cysts, cancer of the reproductive organs, ectopic pregnancy, pelvic inflammatory disease, abnormal uterine bleeding, or premenstrual syndrome. Gynecological Malpractice Litigation, 64 Am. Jur. Trials 1, § 70.

Without evidence linking the hysterectomy to HPV, there is no justifiable reason to believe a reasonable person in the former husband’s shoes should have known he had HPV from that fact alone. The former husband’s “knowledge” in this case cannot be predicated on remote chance and guesswork.

For these reasons, we hold that the former wife’s complaint failed to state a claim for negligent transmission of a sexually transmissible disease.

The Nature of HPV Requires That a Defendant Have Actual Knowledge That He or She Harbors the Disease in Order to be Liable in Common Law Negligence

As an alternative basis for affir-mance, the former husband urges this Court, upon public policy grounds, to hold that HPV is excluded from the tort of negligent transmission of a sexually transmissible disease. ■ Although we do not agree that transmission of the disease should be excluded from negligence liability, we agree that the tort can be based only on a person’s actual knowledge that he or she carries the disease, and not on constructive knowledge.

Recently, this Court confirmed that “[considerations of public policy are appropriate in determining whether a negligence cause of action will lie.” Knight, 138 So.3d at 1150. As we explained:

Finding that a legal duty exists in a negligence case involves the public policy decision that a “defendant should bear a given loss, as opposed to distributing the loss among the general public.” Levy v. Fla. Power & Light Co., 798 So.2d 778, 780 (Fla. 4th DCA 2001), rev. den. 902 So.2d 790 (Fla.2005). A legal “[d]uty is-an allocation of risk determined by balancing the foreseeability of harm, in light of all the circumstances, against the burden to be imposed.” Id. (quoting Vaughan v. Eastern Edison Co., 48 Mass.App.Ct. 225, 719 N.E.2d 520, 523 (1999)).

Id. at 1149-50 (quoting Biglen v. Fla. Power & Light Co., 910 So.2d 405, 409 (Fla. 4th DCA 2005)).

The crux of the former husband’s argument is that “HPV presents unique challenges in the context of assigning liability for injury” since it is uniquely prevalent in modern society and many HPV carriers do not even know they are infected. HPV is the most common and fastest growing sexually transmissible infection in this country, affecting nearly 79 million Americans, with 14 million people becoming newly infected each year. Ctrs. For Disease Control & Prevention, Genital HPV Infection — Fact Sheet (2014), http://cdc.gov/std/ HPV/STDFact-HPV.htm. The result is that “[a]t least half of sexually active men and women will contract HPV during the course of their lifetimes.” Elizabeth J. Chen, Equal Protection: Why the HPV Vaccine Should Be Mandated for Both Boys and Girls, 38 Wash. U. J.L. & Pol’y 289, 292-93 (2012).

“HPV is most often contracted during vaginal and anal sex, but may also be passed through other sexual activities including oral sex and genital-to-genital contact.” Anthony D. Pegion and Andrew Zacher, Mandating HPV Vaccinations in the United States, 14 DePaul J. Health Care L, 169, 171 (2011). Currently, scientists have found “at least thirty distinct strains of HPV that can infect human genitalia.” Deana A. Pollard, Sex Torts, 91 Minn. L.Rev. 769, 776 (2007).

„ Low-risk strains may cause genital warts, whereas high-risk strains may cause cervical cancer or other more rare types of cancer. However, in the vast majority of HPV cases, the infected persons are unaware of their infections. With most HPV infections, the infected person experiences no symptoms and there is no commercially available way to test for HPV. Therefore, HPV is very often unknowingly passed between sexual partners.

Hasken, supra, at 993. It has been said “the more dangerous strains cause ‘sub-clinical’ infections, so-called because they are invisible and often.go undetected or may lie dormant for years.” Pollard, supra, at 776.

Currently, the CDC does not even recommend an HPV test for men. Ctrs. For Disease Control & Prevention, HPV and Men — Fact Sheet (2014), http://cdc.gov/std/ hpv/stdfact-hpv-and-men.htm. Thus, in most cases — particularly those where the defendant is male — “establishing constructive knowledge of infection will be difficult.” Endres, 968 A.2d at 343.

Given the disease’s prevalence, and the fact that its effects may remain dormant for years if not decades, we hold that only a defendant with actual knowledge that he or she has HPV should be subject to liability in negligence for its transmission. Accordingly, a separate reason for affirmance is the absence of allegations in the former wife’s second amended complaint establishing the former husband’s actual knowledge of his predicament.

Affirmed.

GERBER, J., concurs.

CONNER, J., concurs in result only.

      . We note that, as a criminal statute, section 384.24 requires proof that a person “know[] he or she is infected with one or more" of the enumerated diseases and that "such person has been informed that he or she may communicate this disease to another person through sexual intercourse.” Proof of the criminal violation, which requires such knowing conduct, will also be powerful evidence of . negligence. '


author: DAMOORGIAN, C.J. FORST, J.,

text:
    Ivory BRUNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1758.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2014.
    Rehearing Denied Nov. 3, 2014.

      Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, C.J.

Ivory Brunson pled no contest to possession of cocaine but reserved the right to appeal the trial court’s dispositive ruling on his motion to suppress. He argues that the search of his person leading to the discovery of the cocaine was illegal because it was tainted by the illegal search of a hotel room. We agree and reverse for the reasons discussed below.

By way of background, Appellant was arrested and charged with possession of cocaine after officers investigating a tip from hotel management entered Appel-' lant’s hotel room and found cocaine on his person. Appellant moved to suppress all evidence found during the search, arguing that the officers illegally entered the hotel room.

At the hearing on Appellant’s motion, the arresting officers testified that they were dispatched to a hotel on the date of Appellant’s arrest, after management called complaining that one of the rooms was being used for prostitution and drug use. Upon arriving at the hotel, the officers spoke with the manager who provided them with the room number and the name of the person renting the room — Appellant. The manager also indicated that she saw another man with Appellant.

The officers went to the room and knocked on the door, and a “younger black male” answered. The officers asked the man if they could come in, and the man consented. Once inside, the officers encountered another male (Appellant) and two females, and noted the presence of marijuana, pills, and drug paraphernalia. The officers asked who the room was checked out to, at which point Appellant acknowledged that the room was his. The officers then asked Appellant if they could search the room, and Appellant consented. After finding marijuana, crack cocaine, pills, and a gun, the officers asked to search Appellant’s person. Once again, Appellant consented and the officers found crack cocaine in his pocket.

Based on the foregoing, Appellant argued that the search was invalid as the officers entered the room without a warrant or valid consent. Specifically, Appellant argued that the man who answered the door and allowed the officers in did not have the authority to do so. Moreover, the officers should have known better because they knew Appellant was renting the room but did not ask for him when they knocked on the door.

After considering Appellant’s argument, the trial court agreed that the officers’ initial search of the hotel room was' illegal because a reasonable person would not conclude that the individual who answered the door had the authority to consent without confirming that he was the person renting the hotel room. We agree with this ruling. See Williams v. .State, 788 So.2d 334, 337 (Fla. 5th DCA 2001) (holding that officers’ entry into a hotel room was illegal based on consent provided by unidentified woman who answered the door because it was unreasonable for the officers to assume the woman had the authority to let them in just by virtue of the fact she answered the door); see also Cooper v. State, 706 So.2d 369, 371-72 (Fla. 2d DCA 1998) (“The mere fact that an unknown person opens the door when a police officer knocks cannot, standing 'alone, support a reasonable belief that the person possesses authority to consent to the officer’s entry.”).

However, the trial court found that the subsequent search of Appellant’s person was legal because Appellant consented to the search. Thus, the court denied Appellant’s motion to suppress the cocaine found on his person. We disagree with this ruling and reverse.

In considering the court’s ruling on Appellant’s motion to suppress, we defer to its findings of fact, but review its legal conclusions de novo. Castella v. State, 959 So.2d 1285, 1289 (Fla. 4th DCA 2007).

“Consent given after police conduct determined to be illegal is presumptively tainted and deemed involuntary, unless the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint.” Navamuel v. State, 12 So.3d 1283, 1286 (Fla. 4th DCA 2009) (citations and quotations omitted). A “clear break” occurs when the police inform the suspect of his right to refuse consent to the subsequent search. Findley v. State, 771 So.2d 1235, 1237 (Fla. 2d DCA 2000).

Here, the testimony given at the suppression hearing did not establish that Appellant was informed of his right to decline the officers’ request to search his person after the officers illegally entered the room. Therefore, there was no unequivocal break in the chain of events between the illegal search and the search of Appellant’s person. Accordingly, Appellant’s consent is deemed involuntary and the court should have fully granted Appellant’s motion to suppress.

Reversed and Remanded.

TAYLOR, J., concurs.

FORST, J., concurs specially with opinion.

FORST, J.,

concurring.

I concur in the decision to reverse Appellant’s conviction. The trial court made two suppression rulings. It first found that “[a] reasonable person could not conclude [that the individual who answered the door and invited the officers to enter Appellant’s hotel room had] the apparent authority to permit consent.” The court then ruled that “the material that was found upon entering the room based on that consent is going to be suppressed.” This material included marijuana, pills, and drug paraphernalia. The State did not file a cross-appeal of this adverse suppression ruling. As such, we need not offer our agreement (or disagreement) with this suppression ruling. See Fla. R. App. P. 9.030(b) (“District courts of appeal shall review, by appeal. ...” (emphasis added)); State ex rel. Cantera v. Dist. Court of Appeal, Third Dist., 555 So.2d 360, 362 (Fla.1990) (“An appellate court cannot exercise jurisdiction over a cause of action where a notice of appeal has not been timely filed.”). In light of the tainted initial search (per the trial court’s ruling), I agree with the majority that the contraband found as a result of the subsequent search of Appellant’s person should have also been suppressed. In so doing, I do not address the merits of the trial court’s granting the motion to suppress with respect to the initial search.

      . Although the court did not explicitly indicate that its ruling on Appellant’s motion to suppress was dispositive, “where a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive” despite the lack of an express finding. J.J.V. v. State, 17 So.3d 881, 883 (Fla. 4th DCA 2009). As Appellant was charged with possession of cocaine and the suppression ruling dealt with the admissibility of the cocaine, the suppression ruling was dispositive. See Diaz v. State, 34 So.3d 797, 801 (Fla. 4th DCA 2010).


text:
    Brian PINNOCK, Appellant, v. Nicole TAYLOR, Appellee.
    No. 4D13-1836.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2014.
    Brian Pinnock, Sunrise, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

GERBER, LEVINE and KLINGENSMITH, JJ„ concur.


author: PER CURIAM,

text:
    Joan CRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3791.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2014.
    Benjamin Scutellaro and Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM,

Joan Cramer appeals the summary denial of her rule 3.850 motion, alleging that the State failed to make sentencing recommendations pursuant to the terms of a substantial assistance agreement, which was agreed upon prior to entry of her plea. The State alleged that it was not obligated to fulfill the agreement in light of Cram-er’s failure to appear at her first sentencing hearing. Both parties state that the substantial assistance agreement was memorialized on tape. Because that agreement is not part of this Court’s record, nor were the terms discussed during the plea hearing or shown in the written plea agreement, the record does not refute her allegations. We reverse and remand for the trial court to attach portions of the record refuting her claim or to conduct an evidentiary hearing on the motion.

Reversed and Remanded.

DAMOORGIAN, C.J., STEVENSON and CIKLIN, JJ., concur.


text:
    Kevin R. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2139.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2014.
    Kevin R. Miller, Wewahithcka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order summarily denying appellant’s facially sufficient rule 3.853 motion for DNA testing. As the State concedes in its response to this court, the trial court’s order erroneously construed the motion as untimely filed, under rule 3.850. This matter is remanded for the trial court to consider the merits of appellant’s rule 3.853 motion.

Reversed and remanded.

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


text:
    John Thomas DORSEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3891.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.
    Rehearing Denied Nov. 3, 2014.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Thomas Dorsey (“defendant”) appeals his conviction and sentence on two counts of manslaughter. Because we find the jury instructions given at trial regarding Florida’s “Stand Your Ground” law created fundamental error, we reverse and remand for a new trial.

This is defendant’s second appeal. The facts adduced from defendant’s second trial are nearly identical to the facts of defendant’s first trial, as detailed in this court’s prior opinion. In the prior opinion, this court reversed defendant’s convictions for second-degree murder because of insufficient evidence and improper jury instructions and remanded for a new trial on manslaughter. Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011).

At the close of the second trial and before deliberations, the trial court informed the jury that “whether the Defendant acted in self-defense” was an issue in the case and instructed the jury as follows:

Now, if you find the Defendant was engaging in an unlawful activity or was attacked in a place where he did not have the right to be, then you must consider if the Defendant had a duty to retreat. If the Defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable. Now, a felon in possession of a firearm constitutes unlawful activity.

(emphasis added). Defendant did not object to the instruction. The jury returned a verdict of guilty as charged.

The state asserts that this court should decline to address the issue under the law of the case doctrine. The doctrine provides that “all questions of law which have been decided by the highest appellate court become the law of the case which, except in extraordinary circumstances, must be followed in subsequent proceedings, both in the lower and the appellate courts.” Brunner Enters., Inc. v. Dep’t of Rev., 452 So.2d 550, 552 (Fla.1984). We find that the doctrine does not apply here, because the question of law raised in this appeal was not “actually presented and considered on [the] former appeal,” as required for application of the doctrine. Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001) (citation and emphasis omitted).

Defendant argues that the trial court erred by instructing the jury that being a felon in possession of a firearm was “unlawful activity,” and that if he was engaged in unlawful activity, the jury had to consider his duty to retreat. Defendant claims that under section 776.012(1), Florida Statutes (2012), he had no duty to retreat even if engaged in an unlawful activity.

Because defendant did not object to the instruction, it “can be raised on appeal only if fundamental error occurred.” State v. Delva, 575 So.2d 643, 644 (Fla.1991). “For jury instructions to constitute fundamental error, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Barnett v. State, 121 So.3d 643, 646-47 (Fla. 4th DCA 2013) (citation omitted).

Section 776.012, Florida Statutes (2012), prorides:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony ....

Section 776.012 does not contain any requirement that the person claiming protection under the statute not be engaged in “unlawful activity,” unlike section 776.013(3), Florida Statutes (2012), which provides:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

In Rios v. State, 143 So.3d 1167 (Fla. 4th DCA 2014), the trial court ruled that the defendant, who was carrying a concealed weapon, was engaged in “unlawful activity” and refused to give an instruction on his “right to stand his ground.” Instead, the court instructed the jury regarding the defendant’s duty to retreat. On appeal, the defendant raised an unpreserved argument that he had no such duty under section 776.012(1) of Florida’s Stand Your Ground law. This court reversed upon finding fundamental error, because the defendant “was entitled to the protection of the Stand Your Ground law” under “section 776.012(1), which does not include language on ‘unlawful activity,’ [and] is separate from section 776.013(3).” Id. at 1170. See also Hill v. State, 143 So.3d 981, 985 (Fla. 4th DCA 2014) (holding that a felon in possession of a firearm could still rely upon Stand Your Ground under section 776.012, because that section had “no language precluding the justifiable use of deadly force where the person claiming self-defense is engaged in an unlawful activity” as compared to section 776.013(3)); State v. Wonder, — So.3d —, 2014 WL 3928449, 39 Fla. L. Weekly D1695 (Fla. 4th DCA Aug. 13, 2014) (explaining that a person engaged in an unlawful activity “would look to section 776.012(1) to determine whether the use of deadly force was justified”); Little v. State, 111 So.3d 214, 222 (Fla. 2d DCA 2013) (holding that because the defendant “was a felon in illegal possession of a firearm, his use of force did not fall within the protections of section 776.013,” but that did not preclude him claiming immunity under section 776.012).

We find that the trial court’s instruction to the jury constitutes fundamental error. As in Rios, the instruction’s reference to the defendant’s “duty to retreat” was “not necessary because Defendant did not have a duty to retreat under Florida’s Stand Your Ground law,” and it “effectively eliminated Defendant’s sole affirmative defense.” 143 So.3d at 1170; see also Richards v. State, 39 So.3d 431, 434 (Fla. 2d DCA 2010) (finding that jury instructions referencing a “duty to retreat” rose “to the level of fundamental error” where the defendant’s “sole defense at trial was that he acted in self-defense” thereby entitling him to a Stand Your Ground defense).

Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

STEVENSON, MAY and LEVINE, JJ., concur.

      . Defendant also appealed the trial court's refusal to allow him to cross-examine a state witness regarding the witness’s- knowledge of prior bad acts committed by one of the victims. We find no abuse of discretion in the trial court’s ruling and affirm the court's ruling on this issue.

      . As noted in Rios v. State, 143 So.3d 1167 (Fla. 4th DCA 2014), the recently amended section 776.012, effective June 20, 2014, applies only to "[a] person ... not engaged in a criminal activity.” Id. at 1170 n. 3 (citing § 776.012, Fla. Stat. (2014)). Thus, defendant would not get the benefit of Stand Your Ground under the amendment. "However, because this affirmative defense is substantive in nature, the change in law would not affect Defendant's case,” as he will be entitled to the 2012 version on re-trial. Id. (citing Smiley v. State, 966 So.2d 330, 335-36 (Fla.2007)).


author: MAY, J.

text:
    Eric Patrick FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3146.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals a final order revoking his probation on one count of manslaughter and sentencing him to a term of fifteen years imprisonment. We have reviewed the record and find no error with the exception that the written order revoking the defendant’s probation fails to comport with the trial court’s oral pronouncement.

The trial court pronounced that the State met its burden of proving a violation of probation based on the following offenses: (1) simple battery, a lesser included offense of felony battery; (2) false imprisonment; and (3) aggravated assault with a deadly weapon. The order revoking probation however, indicates that the defendant violated his probation by committing a felony, rather than a simple, battery.

The order revoking probation “must conform to the court’s oral pronouncement.” Perez v. State, 98 So.3d 1216,1216 (Fla. 3d DCA 2012). We therefore remand the case to the trial court for the sole purpose of amending the order revoking probation to conform to the trial court’s oral pronouncement.

Affirmed, but remanded for the correction of the order revoking the defendant’s probation.

STEVENSON and KLINGENSMITH, JJ., concur.


text:
    Kenneth CANNATO a/k/a Kenneth Cannato Jr., and Diana Cannato, Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series, 2007-1, Appellee.
    No. 4D13-3007.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2014.
    Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellants.
    MaryEllen M. Farrell and Dean A. Mo-rande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee.
   On Confession of Error

PER CURIAM.

Kenneth and Diana Cannato appeal from a final summary judgment of foreclosure. The Cannatos argue that there remains a genuine issue of material fact as to whether HSBC Bank had standing at the time it filed the foreclosure complaint. HSBC Bank concedes this argument has merit. We agree with the parties that there is still a genuine issue of material fact as to this issue. Accordingly, we reverse the entry of final summary judgment and remand for further proceedings.

Reversed and Remanded.

DAMOORGIAN, C.J., STEVENSON and KLINGENSMITH, JJ., concur.


text:
    Ahmad J. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4326.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.
    Rehearing Denied Nov. 19, 2014.
    Ahmad J. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, BENTON, and MAKAR, JJ., concur.