author: ROTHENBERG, J.

text:
    Ava G. BYRNE, Appellant/Cross-Appellee, v. Daniel R. BYRNE, Appellee/Cross-Appellant.
    No. 3D10-2323.
    District Court of Appeal of Florida, Third District.
    March 21, 2012.

      Marks & West, P.A., and Evan R. Marks, and Carolyn W. West, Miami, for appellant/cross-appellee.
    Ferdie and Lones, Chartered, and Stuart A. Lones, Coral Gables, for appel-lee/cross-appellant.
    Before CORTIÑAS, ROTHENBERG and LAGOA, JJ.
   On Motion for Rehearing and/or Clarification

ROTHENBERG, J.

We grant appellee/cross-appellant’s motion for rehearing, withdraw our opinion filed on January 18, 2012, and substitute the following opinion in its stead.

Ava G. Byrne (“Ava”) appeals from a final judgment of dissolution of marriage and order denying her post-trial motions. Daniel R. Byrne (“Dan”) cross-appeals. Both parties challenge specific aspects of the trial court’s equitable distribution and award of permanent alimony. We reverse and remand for proceedings consistent with this opinion.

EQUITABLE DISTRIBUTION

The trial court erred by distributing the entirety of the negative value of the marital residence solely to Ava.

Ava and Dan purchased a condominium which is now underwater by approximately $76,000. The trial court classified the condominium as marital property. In its equitable distribution, the trial court assigned the marital residence and the negative value associated with it entirely to Ava, and awarded Dan half of the remaining valuable marital assets. Ava argues that by assigning to her the entirety of the condominium’s negative value without offsetting it in the remainder of the equitable distribution, the trial court fashioned an unequal distribution without sufficient legal justification. We agree.

Section 61.075(1), Florida Statutes (2010), states, in pertinent part: “[I]n distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.... ” Any justification for fashioning an unequal distribution must be “legally sufficient.” Foley v. Foley, 19 So.3d 1031, 1032 (Fla. 5th DCA 2009). Relying on the “equity” factor articulated in section 61.075(l)(j), the trial court justified its decision not to assign half of the condominium’s debt to Dan by stating that, although Ava wished to preserve her reputation by preventing foreclosure, “most homeowners in the circumstances of the parties would simply abandon the residence and/or return the keys to the banks holding the indebtedness.” The trial court therefore concluded that it would be inequitable to require Dan to pay half of the condominium’s negative value solely because Ava desired to protect her own reputation.

The trial court’s justification was not “legally sufficient” because it erroneously assumed that the negative value associated with the condominium would simply vanish if the parties were to “abandon the residence” or “return the keys to the banks holding the indebtedness.” It is well settled Florida law that, absent contractual agreement, debtors remain liable for the portion of their debt not satisfied in a foreclosure sale. See Webber v. Blanc, 39 Fla. 224, 22 So. 655, 656 (1897) (“The fact that a mortgage was taken to secure the note did not deprive the holder thereof of the legal remedy to collect it, nor is there any legal obstacle in the way of his suing at law for the balance due on the note after the sale under the foreclosure decree in equity, if no judgment for the deficiency was entered in such proceedings.”); see also Clements v. Leonard, 70 So.2d 840, 844 (Fla.1954). Consequently, even if Ava and Dan agreed to surrender the property to the bank, absent a contractual release, the $76,000 outstanding debt on the property would survive. Thus, the sole justification provided by the trial court in fashioning an unequal distribution was without merit, and, consequently, the trial court erred in failing to add the condominium’s negative value to the marital liabilities.

ALIMONY

We next turn to the trial court’s alimony award. The trial court awarded Dan $1,500 per month as permanent periodic alimony based on the following factors: Dan and Ava’s marriage lasted “nine” years, and therefore was of moderate duration; Dan became disabled from working during the course of the marriage; Ava earns approximately “$10,000” per month; and Dan, based on his Sprint and Social Security disability income, earns approximately $44,000 per year, and does not have sufficient money to pay for his living or medical expenses. The trial court, in its order regarding Ava’s post-trial motions, awarded Dan an additional $18,000 in retroactive alimony. Ava challenges various aspects of the trial court’s alimony award on the basis of section 61.08, Florida Statutes (2010), which governs alimony awards.

We reverse the trial court’s award of $1,500 per month in permanent periodic alimony, and $18,000 in retroactive alimony, as we conclude that the trial court’s financial analysis was tainted by its failure to properly consider all of the relevant factors pursuant to section 61.08. Specifically, the trial court did not properly consider: each spouse’s pre-dissolution debts; the income Dan receives from his Fidelity Magellan Retirement account; and the $7,000 reduction to Ava’s annual salary.

Section 61.08(2) provides:

2) In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance, the court shall consider all relevant factors, including, but not limited to:

(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employa-bility of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to .find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.

Failure to consider each spouse’s pre-dissolution debts.

Section 61.08(2)(d) provides that in determining the proper type and amount of alimony, a trial court “shall” consider, among other things, “the financial resources of each party, including the non-marital and marital assets and liabilities distributed to each.” Despite this provision’s clear mandate, the trial court did not make ány findings regarding Ava’s or Dan’s pre-dissolution liabilities, and, therefore, erred. We note that, based ón a review of the record, Ava’s total debt was approximately $54,076, which she was paying off at a rate of $2,233 per month, while Dan’s total debt was approximately $39,319, which he was paying off at a rate of $1,203 per month.

Failure to consider the income Dan receives from his Fidelity Magellan Retirement account.

The trial court additionally erred in failing to consider Dan’s Fidelity Magellan Retirement account, a non-marital asset valued at $65,000, but encumbered by a $36,553 loan. Dan’s Fidelity Magellan Retirement account was a “financial resource” meant to be drawn on during retirement. The trial court, therefore, erred in determining that Dan’s only income was the $44,000 per year he received from Sprint and Social Security Disability payments, and this error necessarily affected the trial court’s determination regarding whether Dan had a “need” for alimony.

Failure to reopen the evidence to consider a $7,000 salary reduction in Ava’s salary.

Ava contends that the trial court erred in denying her unopposed motion to reopen the evidence to take into consideration a $7,000 reduction in salary that she incurred after the close of evidence but prior to dissolution. We agree. To begin with, we note that the trial court based its initial alimony calculations on the premise that Ava earned “$10,000” per month. As shown in Ava’s financial affidavit, however, she earned only $9,059 per month. The trial court recognized its error, and, in its order on Ava’s post-trial motions, noted that she earned “$9,000 instead of $10,000” per month.

Ava’s annual salary was subsequently reduced on July 27, 2010 by $7,000, and the trial court entered its final judgment of dissolution of marriage on August 11, 2010. On August 23, 2010, Ava, pursuant to Florida Rule of Civil Procedure 1.530(a), filed a motion to reopen the proceedings to consider the reduction in her salary, arguing that her post-trial salary reduction directly impacts her ability to pay the trial court’s permanent alimony award.

Florida Rule of Civil Procedure 1.530(a) enables a trial court to evaluate matters that it did not consider prior to judgment, and to correct any error if the trial court becomes convinced that it has erred. Car-olio v. Carollo, 920 So.2d 16, 20 (Fla. 3d DCA 2005). Although rule 1.530(a) is permissive, the statute governing alimony awards, section 61.08(2), contains various mandatory considerations a trial court must make when awarding alimony.

“In determining whether to award alimony ..., the trial court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” § 61.08 (emphasis added). Ava’s substantial salary reduction, when viewed in conjunction with the marital debt for which she is responsible, is indispensible to the trial court’s determination of whether she has the ability to pay alimony.

Although we reverse the trial court’s award of $1,500 a month in permanent periodic alimony and $18,000 in retroactive alimony based on the trial court’s flawed financial analysis, we briefly address the principles that must be applied when considering whether permanent periodic alimony is appropriate, and if so, in what amount.

We recognize that “the nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court.” Lule v. Lule, 60 So.3d 567, 569 (Fla. 4th DCA 2011) (quoting Mondel-lo v. Torres, 47 So.3d 389, 396 (Fla. 4th DCA 2010)). However, the trial court’s discretion is circumscribed by the parameters set forth in section 61.08(8). Section 61.08(8) provides that, “[pjermanent alimony may be awarded following a marriage of ... moderate duration if such an award is appropriate upon consideration of the factors set forth in subsection (2).... ” It follows that, to properly exercise its discretion in awarding alimony, the trial court must accurately consider all of the evidence relevant to the factors set forth in subsection (2). We note that while factors (c) and (e) of subsection (2) unequivocally lend some support to Dan’s award of permanent alimony, they are the only factors that do so. More importantly, as has been established above, the trial court did not properly consider all of the financial evidence relevant to the factors set forth in subsection (2).

In determining the proper amount of alimony to award, “the court shall consider all relevant factors, including, but not limited to: [t]he standard of living established during the marriage[,] ... the financial resources of each party[,] ... the earning capacities ... of the parties[,] and all sources of income available to either party ....” § 61.08(2) (emphasis added). The trial court’s failure to consider Ava’s reduction in salary caused the trial court to award an excessive amount of alimony.

Generally, the rubric for determining the amount of an alimony award is the standard of living established during the marriage. Griffin v. Griffin, 906 So.2d 386, 389 (Fla. 2d DCA 2005) (“In determining the amount of alimony, the trial court should ensure that each party’s standard of living comes as close as possible to the prior lifestyle, given the available financial resources.”) (quoting Laz v. Laz, 727 So.2d 966, 967 (Fla. 2d DCA 1998)). However, it is well settled that a spouse “cannot be required to maintain the [other spouse’s] standard of living when this maintenance stretches beyond his [or her] financial capacity.” Pirino v. Pirino, 549 So.2d 219, 220 (Fla. 5th DCA 1989).

In this case, the trial court based its decision to award $1,500 per month in permanent alimony, in part, on its determination that Dan and Ava enjoyed a “comfortable” standard of living. A careful analysis of the record, however, reveals that, without the alimony award, Ava’s reasonable expenses exceed her income while Dan’s reasonable expenses only slightly exceed his income. Thus, it is clear that the award stretches beyond Ava’s financial capacity.

The trial court erred in retroactively increasing the alimony award by $18,000.

We also conclude that the trial court erred by awarding Dan an additional $18,000 in alimony based on the worthlessness of the TD Ameritrade account.

The trial court, in its order on Ava’s post-trial motions, found that since Dan:

is receiving his Ameritrade account at a value of $50,467.00 when in fact at the time of distribution this account is worth zero dollars or thereabout the court must adjust its alimony finding. The court will make its award of alimony retroactive to the July 2009 separation and debit the Wife an additional $18,000 in alimony.

In adjusting its award in this way, the trial court essentially penalized Ava for Dan’s unauthorized expenditure of her marital portion of the TD Ameritrade account by using the account’s lack of value as a justification for retroactively increasing Dan’s alimony award by $18,000. This was error.

CONCLUSION

In sum, the trial court’s sole justification for assigning the entirety of the negative value of the marital home to Ava, and thereby creating an unequal distribution, was not legally sufficient. Moreover, the trial court’s failure to properly consider each party’s liabilities, debts, and sources of income, including Ava’s reduction in salary and Dan’s Fidelity Magellan Retirement account, distorted the trial court’s view of the comparative financial position of each party in favor of Dan and to the detriment of Ava. Finally, the trial court erred in retroactively increasing the alimony award by $18,000 based on the TD Ameritrade account’s worthlessness.

Upon remand, the trial court is directed to re-evaluate Dan’s need for alimony, Ava’s ability to pay, and all of the relevant factors articulated in section 61.08(8), including the standard of living established during the marriage, the length of this second marriage (less than nine years), and Dan’s minimal contribution to the marriage, in determining whether permanent alimony is appropriate, and if so, in what amount.

Reversed and remanded.

      . The deed and note were titled solely in Ava's name due to Dan's ongoing litigation with his ex-wife at the time of purchase.

      . We note that the foundation of Ava and Dan’s arguably ''comfortable” lifestyle was a large sum of debt.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Reginald WILKERSON, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D12-739.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Reginald Wilkerson, in proper person,

      Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for respondent., for respondent.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

Reginald Wilkerson seeks a writ of mandamus regarding a motion for postconviction relief filed in 2001. We grant the petition.

In his petition, Wilkerson states he filed his motion in February 2001, and, that after the trial court denied relief, he moved for rehearing. Wilkerson claims that the trial court never ruled on the motion for rehearing. At our request, the State filed a response which confirms the filing of the motion for rehearing. In response to Wilkerson’s 2010 motion to hear and rule, the trial judge apparently wrote a memo denying rehearing. We agree with the State’s concession, however, that this memo does not constitute a properly filed written order. See State v. Wagner, 863 So.2d 1224 (Fla.2004) (holding that signed court minutes are not proper orders). Accordingly, we grant the petition and remand for the trial court to enter a written order.

Petition granted.


text:
    Bernardo MARQUETTI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1191.
    District Court of Appeal of Florida, Third District.
    June 13, 2012.
    Claudia Ima, Miami Lakes, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and CORTIÑAS and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: ROTHENBERG, J. SHEPHERD, J., PER CURIAM. SHEPHERD, J., ROTHENBERG, J.

text:
    Monica VIVES, Appellant, v. WELLS FARGO BANK, N.A., etc., Appellee.
    No. 3D11-1453.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.
    Rehearing Denied Oct. 23, 2013.

      Wasson & Associates, Chartered, and Roy D. Wasson and Annabel C. Majewski, Miami; Wald, Castillo & Wald, and Jennifer P. Wald, Miami, for appellant.
    Kelly E. Elkins, P.A., Plantation, and Katherine J. Walke, Fort Lauderdale, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, Monica Vives (“Ms. Vives”), appeals from the denial of her motion to vacate the final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A., etc. (“Wells Fargo”), and motion to cancel the foreclosure sale. We remand with instructions.

This appeal stems from a foreclosure action filed on March 4, 2009, by Wells Fargo against Ms. Vives, in which Wells Fargo sought to re-establish a lost or destroyed promissory note (Count I), and foreclose a mortgage on Ms. Vives’ home that Wells Fargo now owns and holds (Count II). The process server’s verified return of service was returned on March 21, 2009, indicating that substitute service of process was effected at Ms. Vives’ home on March 19, 2001, on an unnamed individual.

Ms. Vives did not file a responsive pleading. See Fla. R. Civ. P. 1.100(a) (“Pleadings. There shall be a complaint or, when so designated by statute or rule, a petition, and an answer to it....”); Fla. R. Civ. P. 1.140(a)(1) (“Unless a different time is prescribed in a statute of Florida, a defendant shall serve an answer within 20 days after service of original process and initial pleading on the defendant....”). Although Wells Fargo did not file a motion for default, it filed a motion for summary final judgment of foreclosure on May 28, 2009, and the service list indicates the motion was mailed to Ms. Vives.

On April 9, 2010, more than a year after Wells Fargo initiated the foreclosure action, it filed a copy of a letter Ms. Vives wrote on April 3, 2009, to her mortgage servicing agent’s attorney, Kahane & Associates, P.A., which Wells Fargo claimed was Ms. Vives “Pro Se Answer.” The letter provides, in pertinent part, as follows:

I have been in contact with my mortgage lender and will be using a Repayment Plan in order to avoid foreclosure.
I appreciate any further information you can provide as any other steps that I need to take, including forwarding this to the courts as I had only a few days left to respond to them....
Again, I am going to work with my lender using the Repayment Plan they offered me in order to stop this foreclosure process.

After Kahane & Associates took it upon itself to file Ms. Vives’ “Pro Se Answer,” Wells Fargo filed other items, including the original promissory note and mortgage executed by Ms. Vives, an original assignment of mortgage, and two original allong-es.

On December 2, 2010, Judge Jennifer D. Bailey heard Wells Fargo’s Motion for Summary Final Judgment of Foreclosure, which Ms. Vives did not attend. On that same day, Judge Bailey entered a Final Judgment of Foreclosure in favor of Wells Fargo, finding that “[s]ervice of process has been duly and regularly obtained over” Ms. Vives, and setting the sale of the property for January 21, 2011. A copy of the final judgment was mailed to Ms. Vives.

Three days before the scheduled foreclosure sale, Ms. Vives filed an emergency motion to cancel the foreclosure sale. This was Ms. Vives’ first appearance in the foreclosure action. Senior Judge Gillman entered an order rescheduling the sale to March 3, 2011, due to “service of process questions.”

On March 1, 2011, Ms. Vives filed a Motion to Vacate Final Judgment and Cancel Sale, pursuant to Florida Rule of Civil Procedure 1.540(b), attaching her sworn affidavit. The motion to vacate asserts, in part, that Ms. Vives was never served with the complaint, and, therefore, the trial court did not have personal jurisdiction over her when the final summary judgment in favor of Well's Fargo was entered on December 2, 2010. In support of this assertion, the motion to vacate provides that the process server averred in his verified return of service that the unnamed person who was served is a brown-haired female who is thirty-five to forty-nine years old, 5'4" to 5'8" tall, and weighs between 100 to 129 pounds, and that this description is not of Ms. Vives who is thirty-one years old, 5'6" tall, weighs 175 pounds, and, at the time of service, had blonde hair.

In addition to averring that she was not served with process, Ms. Vives stated that she first learned of the foreclosure action on December 22, 2010, when her uncle saw her home on a foreclosure sales list. Although the record demonstrates that numerous items filed by Wells Fargo were mailed to Ms. Vives, she claimed that she “never received any notices or pleadings regarding this lawsuit” and “had no knowledge that a judgment was entered.”

In her affidavit, Ms. Vives described the circumstances relating to the letter she wrote to Kahane & Associates on April 3, 2009. In April 2009, her mortgage servicing agent, American Home Mortgage Servicing (“AHM”), contacted her and offered her a repayment plan to avoid foreclosure. Ms. Vives accepted the plan, and as requested by AHM, she contacted AHM’s attorney, Kahane & Associates. She spoke with an employee at Kahane & Associates who requested that she write a letter indicating that she had accepted the repayment plan. This employee assured her the letter “would stop the law firm from filing foreclosure” against her. During her conversations with AHM and Ka-hane & Associates, Ms. Vives claims she was not told that Wells Fargo had already filed a foreclosure action against her. As part of the repayment plan, from June to December 2009, Ms. Vives made payments to AHM, totaling $13,760. However, in December 2009, a $2500 payment was returned to Ms. Vives without an explanation.

Senior Judge Silver rescheduled the March 3, 2011, foreclosure sale to May 2, 2011. Thereafter, on March 25, 2011, Ms. Vives filed an Amended Motion to Vacate Final Judgment and Motion to Cancel Sale, which is substantively similar to the previously filed motion to vacate.

The hearing on the amended motion to vacate was scheduled for April 21, 2011, before Judge Donner. When Judge Donner cancelled her calendar for that day, Ms. Vives’ counsel re-noticed the hearing for April 28, 2011. Ms. Vives’ counsel appeared at the April 28th hearing, but was notified that the motion was not placed on the calendar because the notice of hearing was not provided at least seven business days prior to the hearing, as required by Judge Donner. Ms. Vives’ counsel re-noticed the hearing on the amended motion to vacate for May 12, 2011.

On April 29, 2011, Ms. Vives filed an emergency motion to cancel the May 2, 2011, sale, explaining that the amended motion to vacate would not be heard by Judge Donner until May 12, 2011. At the hearing on the emergency motion to cancel the sale, Judge Gillman, the presiding judge of the Foreclosure Master Calendar Court, questioned defense counsel as to when Ms. Vives first requested that the final judgment be vacated. In response, Ms. Vives’ counsel handed Judge Gillman the February 28, 2011, motion to vacate, and explained that the delay in filing the motion to vacate was due, in part, to the confusion as to which trial judge would be hearing the motion — the trial judge who entered the final judgment (Judge Bailey) or a trial judge in the division in which the foreclosure case was assigned. Thereafter, Judge Gillman signed a form order denying the emergency motion to cancel the sale and an order prepared by Wells Fargo’s counsel denying Ms. Vives motion to vacate the judgment.

On May 2, 2011, the subject property was sold to Wells Fargo; on May 6, 2011, Ms. Vives filed an Objection to Sale; and on May 12, 2011, at the hearing scheduled before Judge Donner, Ms. Vives’ counsel learned that Judge Gillman had executed an order denying Ms. Vives’ motion to vacate. Ms. Vives timely appeals Judge Gillman’s orders denying her motion to cancel the sale and motion to vacate.

Ms. Vives contends the trial court erred by denying her motion to vacate the final summary judgment of foreclosure as she was not served with process, and, therefore, the trial court did not have personal jurisdiction over her when the final summary judgment was entered. Wells Fargo, however, contends Ms. Vives waived any objection she may have had as to service by answering the complaint without raising this defense. See Fla. R.C.P. 1.140(h); Lennar Homes, Inc. v. Gabb Constr. Seros., Inc., 654 So.2d 649, 651 (Fla. 3d DCA 1995) (“A defendant who fails to contest the sufficiency of service of process at the inception of the case, whether by motion or responsive pleading, has waived this defense once he or she has entered a general appearance.”).

In support of this claim, Wells Fargo relies on Ms. Vives’ letter that Wells Fargo filed with the trial court as her “Pro Se Answer.” This Court, however, has rejected a similar filing and argument in Opella v. Bayview Loan Servicing, LLC, 48 So.3d 185, 187 (Fla. 3d DCA 2010), concluding that the letter allegedly written by Mr. Opella, but filed by Bayview Loan Servicing as Mr. Opella’s “pro se answer,” did not constitute an answer.

In Opella, Bayview filed a foreclosure suit against Mr. Opella. Bayview moved for summary judgment against Mr. Opella, alleging that service of process properly had been effected on Mr. Opella. Approximately one month later, Bayview, without Mr. Opella’s authorization, filed a “Notice of Filing Defendant’s Pro Se Answer,” attaching an undated letter that Mr. Opella allegedly wrote to Bayview’s attorney in an attempt to settle a dispute as to the subject mortgage. Thereafter, the trial court entered final summary judgment in favor of Bayview, finding that service of process had been duly and regularly obtained over Mr. Opella. Mr. Opella appealed the entry of the final summary judgment.

On appeal, Bayview argued that Mr. Opella waived any sufficiency of service of process defense because he failed to raise the argument in his “pro se answer.” This Court rejected Bayview’s argument:

[T]he purported “answer” filed by Brian L. Rosaler, Bayview’s attorney, is nothing more than an undated letter to counsel for one of the litigants. This document does not remotely resemble an answer which under Florida Rule of Civil Procedure 1.100(c) must “have a caption containing the name of the court, the file number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be.” It also does not indicate the subject matter of the paper, other than to state in its body that it “is written in part for purposes of settlement and compromise ... [and] also serves as a demand letter.” In short, it does not purport to be and is not an answer; it certainly is not an answer which waives any defenses related to service of process.

Opella, 48 So.3d at 188.

As in Opella, the letter filed by Wells Fargo in the instant case: (1) does not contain any sort of caption; (2) clearly indicates it was written for a purpose other than answering the complaint — acceptance of a prepayment plan; and (3) does not authorize the mortgage holder or its attorney to file the letter as the defendant’s “pro se answer.” Thus, the letter “certainly is not an answer which waives any defense related to service of process.” Id.

Ms. Vives first appeared in this action when she filed an emergency motion to cancel the January 21, 2011, foreclosure sale. In moving to cancel the sale, Ms. Vives contested service of process, and, therefore, did not waive the defense of lack of service of process.

We also reject Wells Fargo’s assertions that, even if the defense of lack of service of process was not waived, the process server’s verified return of service was regular on its face and, therefore, service is presumed valid, and that Ms. Vives did not overcome that presumption of validity by clear and convincing evidence. As succinctly explained by this Court in Bennett v. Christiana Bank & Trust Co., 50 So.3d 43, 45 (Fla. 3d DCA 2010):

Strict construction of, and compliance with, statutes governing service of process is required. Shurman v. Atl. Mortgage & Inv. Corp., 795 So.2d 952, 954 (Fla.2001). Without proper service, a court may not proceed in the matter. Re-Employment Sens., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007) (citing Henry P. Trawick, Jr., Florida Practice and Procedure § 8:20 (2007 ed.)). “A summons properly issued and served is the method by which a court acquires jurisdiction over a defendant.” Seymour v. Panchita Inv., Inc., 28 So.3d 194, 196 (Fla. 3d DCA 2010). In analyzing whether service is proper, the return of service is the point of departure.
A process server’s return which is regular on its face is presumed valid absent clear and convincing evidence to the contrary. Bank of Am. v. Bom-stein, 39 So.3d 500 (Fla. 4th DCA 2010); Telf Corp. v. Gomez, 671 So.2d 818, 818 (Fla. 3d DCA 1996). Moreover, a simple denial is insufficient to impeach the validity of service. Telf Corp.[, 671 So.2d at 818].

As instructed by Bennett, we begin by examining the process server’s verified return of service to determine if it is regular on its face. The verified return of service reflects that on March 19, 2009, the process server delivered the summons and complaint to Ms. Vives’ usual place of abode, and in accordance with section 48.031(l)(a), left copies of the summons and complaint with an unnamed person who was over the age of fifteen, advising the person of the contents. The process server described the unnamed person as: “NOT MARRIED. NOT IN MILITARY. F. WHT, BROWN HAIR, 35^9 YRS, 5'4-5'8,100-129 LBS.”

Section 48.031(l)(a), Florida Statutes (2009), provides:

(l)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.

(emphasis added). Section 48.21, Florida Statutes (2009), which is titled “Return of execution of process,” provides, in relevant part, as follows:

Return of execution of process. — Each person who effects service of process shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served.... A failure to state the foregoing facts invalidates the service, but the return is amendable to state the truth at any time on application to the court from which the process issued. On amendment, service is as effective as if the return had originally stated the omitted facts....

(emphasis added).

Thus, contrary to Wells Fargo’s assertion, the verified return of service is not regular on its face because it fails to satisfy the requirements set forth in sections 48.031(l)(a) and 48.21. The return of service does not state the name of the person on whom service was made, and it does not state that this unnamed person resides at Ms. Vives’ regular place of abode, as required by section 48.031(l)(a). See Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177 (Fla. 3d DCA 2011) (“Service made under the substitute service provisions of section 48.031, Florida Statutes, must be strictly complied with, and these provisions are to be strictly construed.”).

Because the verified return of service is defective on its face, Ms. Vives was not required to present clear and convincing evidence to overcome the presumption of validity. Instead, the burden shifted to Wells Fargo to prove valid service. See Re-Employment Servs., 969 So.2d at 471 (“If the return is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence. However, if the return is defective on its face, it cannot be relied upon as evidence that the service of process was valid. When there is an error or omission in the return of service, personal jurisdiction is suspended and it ‘lies dormant’ until proper proof of valid service is submitted.”) (citations omitted); Gonzalez v. Totalbank, 472 So.2d 861, 864 n. 1 (Fla. 3d DCA 1985) (“When the return of service is regular on its face, the party challenging the service has the burden of overcoming the presumption of its validity by presenting clear and convincing evidence. On the other hand, when, as in this case, the challenging party makes a prima facie showing that the return is defective, then the burden shifts to the person acting under the substituted service provision to prove valid service.”) (citations omitted).

In conclusion, we find that: (1) the letter Ms. Vives wrote to the servicing agent’s attorney and filed by Wells Fargo one year later did not serve as an answer to the complaint; (2) Ms. Vives objected and claimed lack of personal jurisdiction in her first appearance before the trial court; and (8) the verified return of service, which did not allege personal service upon Ms. Vives, did not identify the person the complaint was allegedly served on, or state that the person resides at the premises, was not regular on its face. Thus, the burden shifts to Wells Fargo to demonstrate at an evidentiary hearing that service was valid. On remand, if the trial court determines that Wells Fargo fails to meet its burden, the order denying the motion to vacate the final judgment must be reversed, and the trial court must enter an order granting the motion to vacate the final summary judgment of foreclosure.

The remaining issues raised by Ms. Vives do not warrant discussion.

Remanded with instructions.

WELLS, C.J., concurs.

SHEPHERD, J.,

dissenting.

I dissent.

Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.

ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of Monica Vives’ motion for rehearing from an order denying her motion for appellate attorneys’ fees, it is ordered that said motion be and the same hereby is denied.

SHEPHERD, C.J., and WELLS, J., concur.

ROTHENBERG, J., dissents.

SHEPHERD, J.,

concurring.

Appellant-borrower, Monica Vives, contends on rehearing that the court overlooked or misapplied the reciprocality provision, found in section 57.105(7) of the Florida Statutes (2012), by failing to award her 'attorney fees as the prevailing party on appeal in this mortgage foreclosure action. I disagree.

Ms. Vives moved for attorney fees based not upon the fee provision in the mortgage, but rather a fee provision in the promissory note, which the mortgage secured. There is a difference. Bank of New York Mellon v. Reyes, 126 So.3d 304, 308 (Fla. 3d DCA Mar. 20, 2013) (citing Taylor v. Am. Nat’l Bank of Pensacola, 63 Fla. 631, 57 So. 678 (1912) (quoting Thorpe v. Mindeman, 123 Wis. 149, 101 N.W. 417, 420 (Wis.1904) (“The promise to pay is one distinct agreement, and, ... [t]he pledge of real estate to secure that promise is another....”))). See also Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So.3d 58, 61 (Fla. 4th DCA 2012). A mortgage is incidental to the note and serves to secure the debt evidenced therein. See Deutsche Bank, 87 So.3d at 61. Upon default, the mortgagee may elect to exercise its rights under either document without barring the alternate remedy. 55 Am.Jur.2d Mortgages § 452 (2012); see also Royal Palm Corp. Ctr. Ass’n v. PNC Bank, 89 So.3d 923, 929-30 (Fla. 4th DCA 2012) (recognizing that foreclosure of a mortgage and suit on a promissory note are separate and distinct remedies available to a lender-mortgagee upon default); Sims v. New Falls Corp., 37 So.3d 358, 360 (Fla. 3d DCA 2010). In this case, the lender chose to proceed under the mortgage.

Some of our sister courts have conflated the two documents to suggest the recipro-cality provision of section 57.105(7) of the Florida Statutes affords attorney fees in a mortgage foreclosure action on the strength of a unilateral fee provision in a promissory note. See United States v. Wonders, 86 So.3d 544 (Fla. 2d DCA 2012); Shepheard v. Deutsche Bank Trust Co., 38 So.3d 825 (Fla. 5th DCA 2010); Landry v. Countrywide Home Loans, Inc., 731 So.2d 137 (Fla. 1st DCA 1999). However, these cases are bereft of analysis and in one case, United States v. Wonders, dicta. Moreover, the above cases do not consider the unique characteristics that inhere in a promissory note — transferability, indifference to who actually holds the note and how he obtained it for bearer instruments, and limitations on defenses against a claim by a “holder in due course” — which appear at first glance to distinguish suits on promissory notes from the type of contract litigation the drafters of section 57.105(7) probably had in mind when the provision first appeared in the Florida Statutes in 1988. See Laws of Fla., ch. 88-160 § 1 (1988).

In this case, however, the fact the lender did not bring suit on the promissory note is sufficient.

ROTHENBERG, J.

(dissenting).

I respectfully disagree with the majority’s decision to deny rehearing. The relevant pleadings dictate that Ms. Vives, as the prevailing party on appeal, is entitled to an award of reasonable attorney’s fees. Although the concurring opinion is not binding authority, I have chosen to address it because I respectfully disagree.

The concurring opinion begins by noting that Ms. Vives moved for fees under the reciprocality provision set forth in section 57.105(7) “based not upon a fee provision in the mortgage, but rather a fee provision in the promissory note.” (footnote omitted). The concurring opinion then concludes that Ms. Vives is precluded from relying on the fee provision in the promissory note because “the lender chose to proceed under the mortgage” rather than the promissory note. If the concurring opinion was correct in its characterization of the lender’s lawsuit, I would agree with its conclusion. A careful review of the lender’s complaint, however, reveals that the concurring opinion is mistaken, as Wells Fargo expressly sought relief under the promissory note.

Although Count II begins by stating, “[T]his is an action to foreclose a mortgage on real property,” that count goes on to set forth the amounts due and owing under the promissory note:

10. There has been a default under the note and mortgage held by Plaintiff in that the payment due December 1, 2008, and all subsequent payments have not been made. Plaintiff declares the full amount due under the note and mortgage to be now due.
12. There is now due, owing and unpaid to Plaintiff herein $98,221.90 on principal of said note and mortgage plus interest from November 1, 2008, and title search expenses for ascertaining necessary parties to this suit, escrow shortage, advances, late fees, costs and attorneys fees.

(Emphasis added). More importantly, in the “WHEREFORE” clause of its complaint, Wells Fargo requested that the trial court “ascertain and determine the sums of money due and payable to the Plaintiff from the Defendants,” and requested a “deficiency judgment[ ] if the proceeds of the foreclosure sale are insufficient to pay Plaintiffs claim.” Finally, in the final judgment of foreclosure, after calculating the principal and interest “due under the note secured by the mortgage,” (emphasis added), the trial court reserved jurisdiction with respect to a possible “deficiency judgment ].”

In Arvelo v. Park Finance of Broward, Inc., 15 So.3d 660 (Fla. 3d DCA 2009), this Court made clear that the “portion of an indebtedness which is sought as a ‘deficiency following a creditor’s disposition of personal property held as collateral is merely part of a debt evidenced by a promissory note or an installment contract.” Id. at 662 (emphasis added); see also Capital Bank v. Needle, 596 So.2d 1134, 1136 (Fla. 4th DCA 1992) (holding that, under the doctrine of res judicata, “where a party seeks a foreclosure and a deficiency judgment for failure to pay on a promissory note, and there is an actual adjudication on the merits of the claim for deficiency, that party cannot proceed on a new action based on the same promissory note”). Specifically, a deficiency compensates the lender for any portion of the debt created by a promissory note that exceeds the value of the collateral secured by the lender’s mortgage. Thus, because a deficiency, by definition, compensates for debt not covered by the lender’s mortgage, it follows that a deficiency flows directly from the promissory note.

Accordingly, in my view, Wells Fargo’s express prayer for a deficiency forecloses the concurring opinion’s conclusion that Wells Fargo’s lawsuit was limited to merely seeking the foreclosure of its mortgage on Ms. Vives’ property. In praying for a deficiency, Wells Fargo necessarily sought relief under the promissory note, and thereby triggered the promissory note’s attorney’s fee provision, which is made reciprocal by section 57.105(7) of the Florida Statutes (2012). Thus, Ms. Vives, as a prevailing party on appeal, should be awarded reasonable attorney’s fees. I, therefore, would grant rehearing and grant Ms. Vives’ motion for an award of reasonable attorney’s fees, and I respectfully disagree with the majority’s contrary conclusion.

      . The address on the service list for Ms. Vives is the address of the mortgaged property, and there is no indication in the record that Ms. Vives disputes that the mortgage property was her usual place of abode on March 19, 2009. In addition, Wells Fargo filed numerous items between May 28, 2009, and April 9, 2010, which also were mailed to Ms. Vives.

      . On May 18, 2011, Ms. Vives' counsel filed a sworn affidavit averring, in part, that at the April 29, 2011, hearing, she handed Judge Gillman the motion to vacate solely to establish the date Ms. Vives filed her initial motion to vacate. Further, she believed that the sole issue before Judge Gillman was Ms. Vives' emergency motion to cancel the May 2, 2011, sale, as the amended motion to vacate was scheduled to be heard by Judge Donner on May 12, 2011. Following the April 29th hearing before Judge Gillman, Ms. Vives’ counsel and Wells Fargo’s counsel spoke about the scheduled hearing before Judge Donner, but Wells Fargo’s counsel did not indicate that an order denying Ms. Vives’ motion to vacate judgment would be prepared for Judge Gill-man’s signature. Further, Ms. Vives’ counsel asserted that she first learned that Judge Gill-man had signed an order denying the motion to vacate when she appeared at the May 12, 2011, hearing before Judge Donner.

      . Wells Fargo argues that the portion of- Ms. Vives’ letter stating, "including forwarding this to the courts,” indicates that Ms. Vives authorized Wells Fargo to file her letter in the lower tribunal as her pro se answer. We disagree. In making this argument, Wells Fargo ignores the beginning of the sentence, which states: "I appreciate any further information you can provide as any other steps that I need to take, including forwarding this to the courts...." (emphasis added). Clearly, Ms. Vives was requesting information from Kahane & Associates as to what further steps she needed to take.

      . Even if we had concluded that the verified return of service was regular on its face, based on the allegations set forth in the amended motion to vacate final summary judgment and Ms. Vives’ sworn affidavit, an evidentiary hearing would have been necessary to determine if Ms. Vives could overcome the presumption of validity with clear and convincing evidence.

      . At the April 29th hearing on Ms. Vives’ emergency motion to cancel the sale scheduled for May 2, 2011, Judge Gillman recognized that "the letter is not an answer.”

      . Section 57.105(7) states:
      If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.

      . The fee provision reads:
      If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law, whether or not a lawsuit is filed. Those expenses include, for example, reasonable attorney’s fees.

      . The dissent expresses the view that because the complaint for foreclosure declared the note in default and requested the trial court to retain jurisdiction to enter a deficiency, “Wells Fargo necessarily sought relief under the promissory note.” See supra p. 18. The dissent is incorrect. A prayer for a deficiency decree is a claim in equity awardable in the "sound judicial discretion” of the trial court. See, e.g., Carlson v. Becker, 45 So.2d 116, 116 (Fla. 1950); Komfeld v. Diaz, 634 So.2d 799 (Fla. 4th DCA 1994); Wilson v. Adams & Fusselle, Inc., 467 So.2d 345 (Fla. 2d DCA 1985) (addressing deficiency judgments). A suit on a promissory note is an action at law. See Mary Dee’s, Inc. v. Tartamella, 492 So.2d 815 (Fla. 4th DCA 1986); Lear v. Meigs, 188 So.2d 349 (Fla. 1st DCA 1966). Either can be pursued in conjunction with a foreclosure action. Royal Palm Corp. Ctr. Ass’n v. PNC Bank, NA, 89 So.3d 923, 931 (Fla. 4th DCA 2012). Neither is precluded until there is an actual adjudication on the merits of the other. Capital Bank v. Needle, 596 So.2d 1134, 1136-37 (Fla. 4th DCA 1992). In this case, the lender has asserted a claim for a deficiency judgment. There has been no adjudication on this prayer.


author: WELLS, Chief Judge. SCHWARTZ, Senior Judge

text:
    The VILLAGE OF PALMETTO BAY, Florida, Petitioner, v. PALMER TRINITY PRIVATE SCHOOL, INC., Respondent.
    No. 3D12-190.
    District Court of Appeal of Florida, Third District.
    July 5, 2012.

      White & Case, Raoul G. Cantero, Evan M. Goldenberg and Elizabeth Coppolecc-hia; Figueredo & Boutsis and Eve A. Boutsis, for petitioner; W. Tucker Gibbs, for Intervenor, Concerned Citizens of Old Cutler.
    Bilzin Sumberg Baena Price & Axelrod, Stanley B. Price, Eileen Ball Mehta and Eric Singer, for respondent.
    Before WELLS, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

The Village of Palmetto Bay petitions for certiorari relief from an order of the circuit court appellate division granting a motion to enforce its mandate in Palmer Trinity Private School, Inc. v. Village of Palmetto Bay, 18 Fla. L. Weekly Supp. 342a (Fla. 11th Jud.Cir.Ct. Feb. 11, 2011). Both Palmetto Bay and Palmer Trinity maintain, and we agree, that this order is subject to “first tier” certiorari review. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174, 1175-76 (Fla. 3d DCA 2011) (confirming that a “first ruling on [a] question” by an appellate division of a circuit court is properly reviewed by the district court as a “first tier” appellate review); see also City of Indian Rocks Beach v. Tomalo, 834 So.2d 341, 341 (Fla. 2d DCA 2003) (treating a petition for second tier certiorari review of an order enforcing a circuit court appellate division mandate as an appeal).

To justify certiorari relief, a petition must demonstrate a departure from the essential requirements of law resulting in a material injury that cannot be remedied on appeal. See Fortune Int’l Hospitality, LLC v. M Resort Residences Condo. Ass’n, 77 So.3d 741, 743 (Fla. 3d DCA 2011) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)). A departure from the essential requirements of the law that will justify issuance of this extraordinary writ requires significantly more than a demonstration of legal error: [T]he departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000)). As Chief Justice Boyd made clear in Jones v. State, 477 So.2d 566, 569 (Fla.1985) (Boyd, C.J., concurring specially):

The required “departure from the essential requirements of law” means something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice. The writ of certiorari properly issues to correct essential illegality but not legal error.

See also Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527-28 (Fla.1995) (observing that Chief Justice Boyd in Jones had “captured the essence of the standard” for determining whether a departure from the essential requirements of the law existed).

Under these parameters, the order of the circuit court appellate division granting Palmer Trinity’s motion to enforce its prior mandate neither merits nor permits issuance of the writ sought. The circuit court appellate division did no more than order compliance with its now long final decision in Palmer Trinity Private School, Inc., 18 Fla. L. Weekly Supp. at 342a. There is no question that it is within the circuit court’s authority to enforce its decisions and orders. See Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So.2d 825, 827 (Fla.1975) (observing generally that a court may “take any steps or issue any appropriate writ necessary to give effect to its judgment”). The order itself does not then constitute a departure from the essential requirements of the law.

The compliance mandated by the order also does not constitute a departure from the essential requirements of the law. The order (or opinion) being enforced here struck portions of a zoning resolution addressing Palmer Trinity’s special exception request to expand its school and to increase its student enrollment from 600 to 1150 students. The resolution being reviewed “approved” Palmer Trinity’s special exception request for an increase in its student enrollment to 1150 but then limited that approval to permit only 900 students:

Section 4. Order.

A. The Council, pursuant to section 33-311(A)(7), and 33-151, et seq., of the Miami Dade County Code as applied by the Village, approves with conditions ... Applicants request[ ] for a special exception ... for ... [an increase in] number of students [to 1150] as to the plans entitled Palmer Trinity School Campus Master Plan....
B. The Village Council conditions ... the special exception as follows:

3. The request to increase the nonpublic school number of students to 1150 is denied. The condition to allow expansion to 900 students is granted.

(Resolution No. 2010-48 adopted May 17, 2010) (some emphasis added).

In a thorough and well reasoned opinion on first tier certiorari review, the appellate division of the circuit court struck the 900 student condition or “cap” leaving approval of the 1150 special exception request standing:

(PER CURIAM) This appeal arises out of the adoption of Zoning Resolution No. 2010-48 (the “Resolution”) by the Village of Palmetto Bay (the “Village”). Petitioner, Palmer Trinity Private School, Inc. (“Palmer Trinity”), seeks by way of certiorari review to quash and remove two provisions incorporated into Condition 4.4 of the Resolution, specifically: (1) the cap on the permissible number of students at the school at 900; and (2) the imposition of a thirty-year (30) prohibition on the filing of any applications for development approvals on the school’s 55-acre site. We have jurisdiction pursuant to Article V, Section 5, Florida Constitution, and Rules 9.030(c) and 9.100 of the Florida Rules of Appellate Procedure.
Palmer Trinity argues that the above provisions are unlawful and should be quashed and removed from the Resolution in that: (1) the cap on the number of students permitted at the school was arbitrary, not supported by competent substantial evidence, and departed from the essential requirements of law; and (2) the thirty-year prohibition on future development applications violated Palmer Trinity’s due process rights because it constituted a de facto moratorium for which neither notice nor opportunity to be heard was given, that the Village departed from the essential requirements of law in approving the prohibition, and that the Village failed to support the thirty-year prohibition with substantial competent evidence.
The Village disagrees and seeks to dismiss Palmer Trinity’s Petition. For the reasons set forth below, we QUASH the two provisions contained in the Resolution, as set forth above, adopted by the Village and REMAND to the Village with instructions to conduct further proceedings on this matter in accordance with this decision.

Procedural and Factual Background

Palmer Trinity has owned and operated a private school on 22.5 acres of land [now] located within the Village (“Parcel A”) for almost five decades. In 1988, Palmer Trinity applied for and obtained approval of a modification of its site plan for the purpose of increasing its enrollment to 600 students. In 2003, Palmer Trinity purchased an additional 32.5 acres also located within the Village
(“Parcel B”) that was zoned half Agricultural (“AU”) and half Estate Single Family per Five Acres (“EU-2”). Parcel B had an Estate Density Residential (“EDR”) future land use designation, allowing for less than 2.5 dwelling units per acre. In 2006, Palmer Trinity filed an application (the “Application”) under the Miami-Dade County Code to rezone Parcel B to Estate Modified Single Family allowing for one home per 15,000 square feet (“EU-M”). As part of the Application, Palmer Trinity also sought a special exception to increase the student enrollment from 600 to 1400 and certain variances concerning further development on both Parcel A and B. As a result of the incorporation of the Village as a municipality, the Application was transferred from the County to the Village.
In 2008, the Village held a hearing on the Application. Consideration of the rezoning request was bifurcated from the other requests in the Application. At the 2008 hearing, the Village adopted Ordinance 08-06 denying the requested rezoning. Palmer Trinity appealed this denial in a petition for certiorari review to the Circuit Court, acting in its appellate capacity, which upheld, without opinion, the Village’s decision. Palmer Trinity then took an appeal to the Third District Court of Appeal which reversed the Circuit Court, thereby overturning the Village’s denial of the rezoning request. See Palmer Trinity Private School, Inc. v. Village of Palmetto Bay, 31 So.3d 260 (Fla. 3d DCA 2010) (“Palmer F’).
After the Third District issued the decision in Palmer I, Palmer Trinity revised its plans, eliminating some of the previously requested non-use variances and reducing its requested student enrollment from 1400 to 1150. Palmer Trinity also voluntarily offered to expand its student population from 600 to 1150 in gradual increments over a fifteen year period. In addition, the proposed site plan was modified to reflect the reduced student enrollment request of 1150, the proposed new development on Parcel B was redesigned and relocated toward the center, setbacks were increased and additional landscaping was added.
On April 28, 2010, the Village conducted a public hearing on the first reading of the rezoning component of the Application. On May 4, 2010, the Village conducted a public hearing on second reading of the rezoning request and approved the rezoning by adopting Ordinance 2010-09. Also at that hearing, the Village heard the request for the special exceptions and site plan modification components of the Application. Prior to the hearing, the professional staff of the Village (the “Village Staff’) reviewed the Application and recommended approval with certain conditions (the “Recommendation”). The ... Village Staff specifically recommended that Palmer Trinity’s request for a special exception to expand the school onto Parcel B and to increase the student enrollment from 600 to 1150 be approved. The 900 number, which the Village later adopted, was not mentioned in the Recommendation.
At the May 4, 2010 hearing, the Village’s Planning Director (the “Director”) presented the Recommendation.... With respect to the 1150 student cap on enrollment, the Village’s expert traffic consultant, Joseph Corradino, reviewed the traffic study included in Palmer Trinity’s Application and recommended approval, finding that, based on 1150 students, the Application satisfied the relevant traffic level of service standards.
The Village Attorney presented an Overview of Zoning Law as a guide to the Village Council. The County Manager also engaged special council who addressed the Village Council regarding their duties and obligations as quasi-judicial officers. The attorney for Concerned Citizens of Old Cutler, Inc. (“CCOCI”) and Betty Ingram, Interve-nors, presented argument and testimony from several individuals and introduced, Mr. Mark Alvarez, a planner, as an expert. Other individual witnesses spoke both for and against the Application. The Village Council then allowed Palmer Trinity an opportunity for rebuttal.
At the conclusion of the evidentiary portion of the hearing, the Village Council began its deliberations. Several amendments to the conditions recommended by the Village Staff were made. Council Person Stanczyk made a motion to reduce the number of students permitted to 900. This was the first time the number 900 was ever mentioned at the public hearing or in the entire record preceding the public hearing. Thereafter, the Mayor and Council Person Stanczyk had a brief discussion as to whether the 900 number was arbitrary. At the conclusion of the hearing on May 4, 2010, the Village adopted the Resolution with conditions, including the reduction in the number of students from 1150 to 900, with Council Member Stanczyk voting against. The only modification to the language of the version of Condition 4.4 contained in the Recommendation to the language in the version of Condition 4.4, as included in the Resolution, was the reduction in the number of students permitted from 1150 to 900....
Subsequent to the Village’s adoption of the Resolution, Palmer Trinity filed its timely Petition to invoke this Court’s jurisdiction.

Conclusions of Law

First tier certiorari review of a quasi-judicial zoning decision, such as the Resolution at issue here, is a matter of right. Miami-Dade County v. Omni-point Holdings, Inc., 863 So.2d 195, 198 (Fla.2008). A three-part standard governs this Court’s review: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Id. at 199.

B. The 900 Student Cap on Enrollment
Palmer Trinity argues that the 900 student cap contained in Condition 4.4 of the Resolution is not supported by competent substantial evidence and constitutes a departure from the essential requirements of law. We agree. The record contains no mention of the 900 number at the May 4, 2010 hearing until after the close of public comment when the Mayor, Council, and Village Counsel had the following exchange:
COUNCIL MEMBER STANCZYK: Yeah and I’m having a little trouble again. The original student number that was listed as a recommendation was 1150, and I would like to reduce it to 900, staged incrementally over the entire term of the project. I’d like to make that as a motion.
MAYOR FLINN: That’s a tough one. I mean, I don’t know how we can just arbitrarily do that, but—
COUNCIL MEMBER STANCZYK: Well, 1150 was an arbitrary number. MAYOR FLINN: Well, 1150 is what they voluntarily dropped to, but—
COUNCIL MEMBER STANCZYK: Well—
MAYOR FLINN: But, anyway, is there a second for that?
VICE MAYOR PARISER: I’ll second it.
MAYOR FLINN: All right, it’s been seconded. Any discussions on it? COUNCIL MEMBER FELLER: Read the motion.
MAYOR FLINN: Reduce to 900 students.
COUNCIL MEMBER FELLER: In discussion by — I had gotten a number, by state number or by density or some numbers. Theoretically, what is the maximum the school would be allowed to by the total acreage? Is there such a thing, Eve?
MS. BOUTSIS: Under the special exception process, they have to meet certain numbers. The answer is over 2,000.
COUNCIL MEMBER FELLER: It’s over 2,000.
MAYOR FLINN: I think it was 2100 at one point. All right all in favor indicate by saying aye.
COUNCIL MEMBERS: Aye. MAYOR FLINN: Any opposed? COUNCIL MEMBER FELLER: Nay.
COUNCIL MEMBER TENDRICH: Nay.
MAYOR FLINN: Three/two. All right next item.

See Transcript of May 4, 2010, Hearing at pp. 297:16-299:12.

The Village relies upon the testimony of Mr. Mark Alvarez, the planner retained by the Intervenors, and the comments by neighboring residents with respect to traffic and noise. The only specific testimony offered by Mr. Alvarez’ [sic] that could arguably support the Village’s position is his statement that “[t]he school, and what I’m going to point out, is I believe that the use, as a school, is not consistent with what the Village’s comprehensive plan says.” See May 4, 2010 Hearing Transcript at p. 168. He further testified that school would be “increasing the population density of Parcel B well above “what’s expected for that zoning category.” Id at 183:7-17. Palmer Trinity contends that Mr. Alvarez’ testimony does meet the standard for competent substantial evidence.

The Florida Supreme Court has defined competent substantial evidence as follows:

Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective ‘competent’ to modify the word ‘substantial,’ we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the ‘substantial evidence should also be ‘competent.’

De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957).

An applicant seeking a special exception must demonstrate to the decision-making body that its proposal is consistent with the county’s land use plan; that the uses are specifically authorized in the applicable zoning district; and that the requests meet with the applicable zoning code standards of review. See Jesus Fellowship v. Miami-Dade County, Florida, 752 So.2d 708, 710.[sic] (Fla. 3d DCA 2000). If an applicant meets this burden, then the request must be granted unless the opponent carries its burden to demonstrate that the applicant’s request does not meet the standards and are in fact adverse to the public interest. Id.
The facts herein are analogous to those presented in Jesus Fellowship. In that case, the Third District quashed a circuit court decision which affirmed a decision of the Miami-Dade County Commission denying a portion of a church’s zoning application. In the zoning application at issue therein, the church sought to rezone land in a residential area to permit expansion of the church’s religious facilities and to permit a private school and day care center. Although the County Staff had recommended approval of 524 students, the Commission approved the rezoning but limited the number of students to 150 as a result of a “suggestion” by the opponents’ attorney after the close of the evidentiary hearing.
Here, as in Jesus Fellowship, the first mention of even the reduction in the number of students permitted occurred after the close of the evidentiary portion of the public hearing. And like the “suggestion” by the opponent’s counsel in Jesus Fellowship, the 900 number here materialized in the form of a motion for which no discussion on the record had been had nor foundation had been laid. Other than the brief discussion between the Mayor and Council Person Stanezyk, wherein the 900 number was admittedly arbitrary, there is no mention of that number, nor any mathematical calculation from which it could have been derived, contained in either the record or transcript preceding the adoption of the Resolution. Neither the testimony of Mr. Alvarez, nor of any of the individuals living in the neighborhood surrounding the school, provides a competent substantial basis for the 900 student cap on enrollment. Accordingly, this Court holds that the 900 student cap is not supported by competent substantial evidence. For the reasons set forth above, the provisions contained in Resolution 2010^48 relating to the ... 900 student cap on enrollment are QUASHED and this matter is REMANDED to the Village of Palmetto Bay for proceedings in accordance with this decision.

Palmer Trinity Private Sck, Inc., 18 Fla. L. Weekly Supp. at 342a (some emphasis added).

Palmetto Bay correctly sought no second tier review of this decision. Palmetto Bay applies the Miami-Dade County Zoning Code to special exception requests. See Palmer Trinity Private Sch., Inc. v. Vill. of Palmetto Bay, 31 So.3d 260, 263 n. 2 (Fla. 3d DCA 2010) (“The Village’s Planning and Zoning Powers Ordinance states that ‘[c]hapter 33 of the Miami-Dade Code entitled ‘Zoning’ ... shall be applied within the municipal boundaries of the Village of Palmetto Bay....’ See § 31 — 1(d) of the Village of Palmetto Bay Planning and Zoning Powers Ordinance.”). In Metropolitan Dade County v. Fuller, 497 So.2d 1322, 1322 (Fla. 3d DCA 1986), this court confirmed that under the Miami-Dade County Code a special exception request “is subject only to the test enunciated in section 33 — 311(d) [now section 33-311(A)(3) ] of the [Miami-Dade County] Code, which is essentially whether the proposal serves the public interest.” (Footnote omitted). An application satisfies this requirement once consistency with a zoning authority’s land use plan and code criteria have been demonstrated. Once this burden is met, “the application must be granted unless the opposition carries its burden, which is to demonstrate [by competent, substantial evidence] that the applicant’s requestfdoes] not meet the standards and are in fact adverse to the public interest.” Jesus Fellowship, Inc. v. Miami-Dade Cnty., 752 So.2d 708, 709 (Fla. 3d DCA 2000); see Irvine v. Duval Cnty. Planning Comm’n, 495 So.2d 167, 167 (Fla.1986) (“[0]nce the petitioner met the initial burden of showing that his application met the statutory criteria for granting such exceptions, ‘the burden was upon the Planning Commission to demonstrate, by competent substantial evidence presented at the hearing and made a part of the record, that the [special] exception requested by petitioner did not meet such standards and was, in fact, adverse to the public interest.’ ” (quoting Irvine v. Duval Cnty. Planning Comm’n, 466 So.2d 357, 364 (Fla. 1st DCA 1985) (Zehmer, J., dissenting))); City of Hialeah Gardens v. Miami-Dade Charter Found., Inc., 857 So.2d 202, 204 (Fla. 3d DCA 2003) (“Once a special exception applicant demonstrates consistency with a zoning authority’s land use plan and meet code criteria, the decision-making body may deny the request only where ‘the party opposing the application ... show[s] by competent substantial evidence that the proposed exception does not meet the published criteria.’ ” (quoting Fla. Power & Light Co. v. City ofDania, 761 So.2d 1089, 1092 (Fla.2000))).

There is no dispute that Palmer Trinity met its burden of demonstrating compliance with the standards imposed by the Miami-Dade County Zoning Code for securing a special exception. As the circuit court noted in its opinion, prior to the public hearing on Palmer Trinity’s special exception request, Palmetto Bay’s professional staff reviewed Palmer Trinity’s request for compliance and “specifically recommended ... Palmer Trinity’s request for a special exception to expand the school onto Parcel B and to increase the student enrollment from 600 to 1150.” Palmer Trinity Private Sck, Inc., 18 Fla. L. Weekly Supp. at 342a. This recommendation came after a thorough thirty-nine page review of all applicable criteria and constitutes competent substantial evidence establishing that the request serves the public interest. See City of Hialeah Gardens, 857 So.2d at 205 (confirming that the testimony of professional staff, when based on “professional experiences and personal observations, as well as [information contained in an] application, site plan, and traffic study” constitutes competent substantial evidence); Palm Beach Cnty. v. Allen Morris Co., 547 So.2d 690, 694 (Fla. 4th DCA 1989) (confirming that professional staff reports analyzing a proposed use constituted competent substantial evidence); Metro. Dade Cnty. v. Fuller, 515 So.2d 1312, 1314 (Fla. 3d DCA 1987) (stating that staff recommendations constituted evidence); Dade Cnty. v. United Res., Inc., 374 So.2d 1046, 1050 (Fla. 3d DCA 1979) (confirming that the recommendation of professional staff “is probative”).

Based on this record, the burden shifted to the opponents of the request to introduce competent substantial evidence demonstrating that the application for 1150 students “did not meet [the] standards and was, in fact, adverse to the public interest.” Irvine, 495 So.2d at 167; City of Hialeah Gardens, 857 So.2d at 206. As the circuit court expressly found, no such evidence was adduced. In fact, the circuit court concluded that the testimony of the only competent witness to testify in opposition to the request, Mr. Alvarez, did not testify as to whether the 1150 student request was adverse to the public interest. Rather he testified only that he believed that the “use ” of the property as a school was not consistent with Palmetto Bay’s comprehensive plan and that the school would increase the population density of the parcel involved above that allowed. Use of the property for a school is not at issue here since no one claims it is not a permitted use. And in light of Council Member Feller and Mayor Flinn’s concession at the commission hearing that the regulations governing this parcel would allow up to 2100 students, it is clear that the circuit court’s conclusion that his testimony was not substantially related to the issue was correct.

Based on this record, the circuit court clearly was correct in striking the 900 student “cap.” Under our ruling in Jesus Fellowship, Inc., 752 So.2d at 711, it also had no choice but to strike the restriction, leaving intact Palmer Trinity’s entitlement to a special exception allowing 1150 students. There, as here, an applicant (a church) sought a special exception for a private school and a day care center for a specific number of students (524) but was restricted by the county commission to fewer students (150). There, as here, professional staff recommended approval of the request. There, as here, neighbors and a professional engineer appeared to oppose the request. There, as here, the opposition witness testimony, proved not to be competent substantial evidence' on the issue of the church’s student request. There, as here, removal of the unsupported condition mandated approval of the evi-dentiary-supported request:

In summary, the Church presented sufficient evidence to carry its burden; the objectors presented only testimony and documents that support the Church’s application or which the courts have held not to be evidence. When the circuit court decided there was evidence (substantial, competent) to support the Commission’s denial of the application, it failed to apply the correct law as to the granting or denial of special exceptions and unusual uses, and failed to apply the correct law as to what constitutes competent evidence in such cases. As a result we quash the circuit court’s order and remand the case with instructions to the circuit court to direct the Commission to remove the limitation to K-6 and 150 students and to grant the application with grades K-12 and 524 students.

Id. at 711 (footnote omitted).

The special exception for 1150 students should, therefore, have been summarily enforced by Palmetto Bay. Despite the circuit court’s citation to and reliance on Jesus Fellowship, which required approval of Palmer Trinity’s 1150 student request, and its mandate, Palmetto Bay remained intransigent. On remand, Palmetto Bay decided to reconsider the application from scratch. On April 12, 2011, Palmer Trinity sought to preclude such action, filing a motion to enforce mandate in the circuit court. On May 5, 2011, the same three-judge circuit court panel which heard the underlying appeal granted the motion. Palmetto Bay then sought clarification of the order enforcing the mandate, contending that it believed that it was being ordered to “hold a public hearing, the record of which shall include but not be limited to all the evidence already in the record for a final decision as to the entire application— not just as to the two items litigated on appeal.” On June 1, 2011, the same three-judge circuit court panel rejected this notion ordering Palmetto Bay to remove the “cap” on the number of students requested and to take no further action inconsistent with its May 5, 2011 order and its present order, effectively precluding additional hearings and mandating approval of the 1150 request. This did not happen.

Again on July 12, 2011, Palmer Trinity filed a Renewed Emergency Motion to Enforce Mandate or Alternatively, to Enjoin and Prohibit Respondent from Violating the Express Mandate of [the] Court, wherein it argued that Palmetto Bay intended to violate the court’s orders at a public hearing scheduled for July 19, 2011. That emergency motion was denied. On July 19, 2011, Palmetto Bay held a public hearing and adopted Resolution 2011-53, amending and incorporating Resolution 2010-48, interpreting each of the circuit court’s prior determinations and rulings to mean that since Palmetto Bay had rejected the 1150 student enrollment requested in favor of a 900 student “cap,” and that cap had now been rejected, no increase in student enrollment above the existing 600 students would be allowed. Thereafter, on August 26, 2011, Palmer Trinity filed the Motion to Enforce Mandate, or in the Alternative for Extraordinary Relief, which resulted in the December 22, 2011 order here under review. In that order, the same three-judge panel of the Eleventh Judicial Circuit Court Appellate Division once again ordered enforcement of its mandate in Palmer Trinity Private School, Inc., 18 Fla. L. Weekly Supp. at 342a. This time the court clearly stated that “in order to strictly adhere to the Mandate’s plain language, the Village must remove or otherwise render ineffectual all of the provisions in the Amended Resolution which have the effect of reducing the maximum number of students allowed from 1150 to 900 or to below 900.” This conclusion is expressly predicated on the court’s extensive quotation from and reliance on Jesus Fellowship; on its conclusion that there is no dispute that Palmer Trinity’s request for 1150 students was “approved ... with a condition that capped student enrollment at 900”; and that removal of the cap entitled Palmer Trinity to approval of its 1150 student request.

These conclusions are fully supported by the record and applicable law and do not in any manner depart from the essential requirements of the law.

Conclusion

In sum, Palmer Trinity sought a special exception which would permit expanding its student enrollment to 1150. At the public hearing which followed, Palmer Trinity adduced competent substantial evidence to support its 1150 student request; no competent substantial evidence was submitted to support either denying or limiting the school’s enrollment request. Palmetto Bay nonetheless denied the 1150 number, lowered the acceptable number to 900 students, and granted the exception. Based on its finding of the lack of competent substantial evidence supporting a “cap” below 1150, the circuit court appellate division ordered the limitation deleted. Palmetto Bay claimed that its compliance with that ruling required only that it delete the 900 student figure, making it free to leave its “denial” of special exception for 1150 students in place. A simple straight forward reading of the circuit court’s ruling contradicts that conclusion. When Palmetto Bay amended Resolution 2010^18, on July 19, 2011, that resolution should have reflected acceptance and incorporation of the circuit court’s decision rejecting any “cap” below 1150. In other words, Palmetto Bay is wrong in arguing its denial of the special exception for 1150 students could remain in place after the circuit court’s February 11, 2011 ruling. Palmetto Bay’s denial of the special exception for 1150 students should have been excised from its Amended Resolution, just as was the 900 student “cap.” Any other interpretation of the circuit court’s February 11, 2011 ruling amounted to wishful thinking at best, and more likely a willful disobedience of that court’s instructions. The circuit court’s order enforcing its earlier mandate was therefore entirely proper and in no way justifies the issuance of the writ sought herein.

For these reasons, the petition for writ of certiorari is denied.

SCHWARTZ, Senior Judge

(concurring).

Although I had (and have) some misgivings about the posture in which this case presents itself, Chief Judge Wells’ opinion has convinced me that, as often happens, any departure from the procedural niceties which may have occurred makes no difference. As her opinion demonstrates, on the basis of what was presented to the Commission, it had no option under the law but to grant the special exception in full. See Irvine v. Duval Cnty. Planning Comm’n, 495 So.2d 167, 167 (Fla.1986) (“[W]e agree with Judge Zehmer (dissenting) that once the petitioner met the initial burden of showing that his application met the statutory criteria for granting such exceptions, ‘the burden was upon the Planning Commission to demonstrate, by competent substantial evidence presented at the hearing and made a part of the record, that the [special] exception requested by petitioner did not meet such standards and was, in fact, adverse to the public interest.’ ”); Jesus Fellowship, Inc. v. Miami-Dade Cnty., 752 So.2d 708, 709 (Fla. 3d DCA 2000); Metro. Dade Cnty. v. Fuller, 497 So.2d 1322 (Fla. 3d DCA 1986).

In essence, therefore, everything in the circuitous legal journey which followed was an exercise in superfluousness and futility. Since the effect of the order now under review, however fashioned, was to require what was required from the beginning, I concur in denying the petition.

      . The order On Motion to Enforce Mandate or in the Alternative, for Extraordinary Relief was issued on December 22, 2011.


author: EMAS, J.

text:
    The STATE of Florida, Appellant, v. Jarvis WILLIAMS, Appellee.
    No. 3D11-466.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.

      Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Shannon Healy and Christine Dimitriou, Certified Legal Interns, for appellee.
    Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge.
   EMAS, J.

Appellant, State of Florida, appeals from an order granting Jarvis Williams’ motion to suppress evidence upon a finding that there were no exigent circumstances to support a constructive entry of his home without a warrant. For the reasons that follow, we reverse.

Jarvis Williams was charged by information with carrying a concealed firearm and possession of a firearm by a convicted felon. Williams filed a motion to suppress all evidence seized following his arrest, contending that police officers constructively entered Williams’ home by ordering him out of the house so they could effectuate an arrest. This warrantless “entry” into the home, Williams argued, violated the Fourth Amendment.

At the hearing on the motion to suppress, two witnesses testified — Officer Diaz and Sergeant Rodriguez. Officer Diaz testified as follows: He is an officer with the Miami-Dade Police Department and a member of the Strategic Police Operations Response Team (SPORT). Around 1:00 a.m. on the night in question, Officer Diaz and several other SPORT units were patrolling a four-square block area, in marked police vehicles. The police had received several threats within that week that police officers were going to be shot and killed. During the patrol, a radio dispatch indicated that shots were being fired near the patrol location. Officer Diaz got out of his vehicle and heard several shots that sounded close to him; however, Diaz did not actually see anyone shooting, nor could he tell exactly where the shots were coming from. Backup officers arrived in the area, and Officer Diaz began walking on foot to investigate. He did not have a description of the shooters, nor did he know how many people were firing guns.

As he was patrolling on foot, Officer Diaz saw three black males in the backyard of a home. One of the individuals placed something behind a doghouse located in the backyard. Though Officer Diaz was not certain, he believed the object was a firearm, based on the way the individual held the object and removed it from his waistband. Officer Diaz did not have binoculars but testified there were streetlights that provided ambient lighting. He continued to observe the three individuals in the yard, and they appeared to be trying to hide; soon after, the three individuals crossed the street and walked into another yard. Officer Diaz could not determine which of the three males put the object behind the doghouse, nor did he ever investigate what was placed behind the doghouse.

Officer Diaz issued a BOLO (be on the lookout) with a description of these individuals. Once the three men walked into the second yard, Officer Diaz got back into his vehicle. He was not present when Williams was later taken into custody.

Sergeant Rodriguez testified as follows: He was also patrolling with the SPORT team on the night in question. Like Officer Diaz, Sgt. Rodriguez heard shots fired but was unable to see who fired the shots. Accordingly, he could not identify the race, gender or number of shooters. Some time after hearing the shots, and having heard Officer Diaz’s BOLO, Sgt. Rodriguez saw appellee, Jarvis Williams, walking across the street holding onto his waistband, but he did not see a bulge in the waistband. Williams saw Sgt. Rodriguez approach and began walking faster. As Williams neared the yard of another home, Sgt. Rodriguez approached in his vehicle, identified himself as a police officer, and ordered Williams to stop based on the following: he had heard gunshots in the area, Williams was near the yard where Officer Diaz had seen a person place a suspected firearm behind the doghouse, and the BOLO described the individuals seen near the doghouse as “black males,” including a general description of clothing and hair. By the time Sgt. Rodriguez exited his car with his weapon drawn, Williams had entered the yard. Williams headed for the front porch of the house, jumped over a set of bushes, tossed a firearm into one of the bushes, and continued into the home. Sgt. Rodriguez then walked up to the door of the house and ordered Williams out of the house so he could make an arrest. Sergeant Rodriguez said he ordered Williams out of the house “because he had a firearm concealed away from my vision, and I saw him toss it. And if it’s a legal gun, why did he toss it?” Williams came out of the house and was taken into custody. Sergeant Rodriguez then ran Williams’ name and learned he was a convicted felon.

The trial court granted Williams’ motion to suppress. The court found that Williams’ submission to Rodriguez’s order to come out of the house was a constructive entry of the home. The court further found that, although the officers’ “conduct [was] forthright and their testimony credible”, their testimony did not establish a predicate sufficient to justify the warrant-less entry into the home to arrest Williams. This appeal followed.

In essence, the trial court held that even if the officer had probable cause to arrest Williams for carrying a concealed firearm (the firearm Williams tossed into the bushes immediately before entering the home), once Williams entered the home the officer needed an arrest warrant or some exception that would permit a war-rantless entry into the home to effectuate the arrest. The trial court determined that the officer’s command that Williams exit the house was a “constructive entry” into the home. The court concluded that this warrantless “entry” did not fall under any exception to the warrant requirement and was therefore impermissible under the Fourth Amendment. We disagree.

Although the trial court “assumed” for purposes of its ruling that Sgt. Rodriguez had probable cause to arrest Williams for carrying a concealed firearm, the trial court did not expressly find this to be the case. However, it is clear that Sgt. Rodriguez had probable cause to arrest Williams. The unrebutted testimony established that, after being ordered to stop, Williams took a gun which was previously concealed from Sgt. Rodriguez’s view and threw it into the bushes before entering the residence. These observations of Williams’ actions provided probable cause to arrest Williams for carrying a concealed firearm.

Thus, the only remaining question is whether the officer could make a war-rantless arrest in the home where:

1. The officer has probable cause to arrest the defendant, after observing the defendant in possession of a concealed firearm; and

2. The officer lawfully orders the defendant to stop, but the defendant, in defiance of that order, continues walking and immediately thereafter enters into his residence.

Williams argues that, absent a warrant or an exception to the warrant requirement, the constructive entry into the home (by ordering Williams to exit the house) constituted an impermissible warrantless arrest effectuated in Williams’ home.

When reviewing rulings on motions to suppress, a presumption of correctness attaches to the lower court’s determination of facts, but questions of law are reviewed de novo. Riggs v. State, 918 So.2d 274 (Fla.2005).

We need not reach the issue of whether the trial court was correct in its determination that the actions of the police constituted a constructive entry into the home. Even if such actions amounted to a constructive entry, it was reasonable under the Fourth Amendment.

We begin by acknowledging that a warrantless entry of the home is considered one of the primary evils which the Fourth Amendment was designed to protect. Riggs, 918 So.2d at 278 (citing Pay-ton v. New York, 445 U.S. 573, 100 S.Ct. 1871, 68 L.Ed.2d 639 (1980)). The home generally may not be entered without a warrant. Id. Thus, this Court has recognized the general rule that “[warrantless searches or arrests in constitutionally protected areas, particularly one’s home, are per se unreasonable unless they fall within one of the established exceptions to the warrant requirement.” State v. Brown, 36 So.3d 770, 771 (Fla. 3d DCA 2010), disapproved of on other grounds, State v. Cable, 51 So.3d 434 (Fla.2010). One such exception is “hot pursuit.” Brown, 36 So.3d at 771-72; Gasset v. State, 490 So.2d 97 (Fla. 3d DCA 1986). See also Georgia v. Randolph, 547 U.S. 103, 117, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).

In Gasset, police officers observed the defendant driving erratically. The officers began following him and a high-speed chase ensued, ending when Gasset drove onto his residential property and into his garage, which was attached to the house. The officers arrived immediately behind Gasset and, as Gasset exited his vehicle, the officers entered the garage and arrested him. Gasset was ultimately charged with driving under the influence. The trial court granted Gasset’s motion to suppress and this Court reversed, finding the officer’s warrantless entry into defendant’s home to make the arrest was justified under the hot pursuit exception:

Gasset waived any expectation of privacy he may have had in his garage by engaging in the high-speed chase ... and leading the officers directly to the place of his arrest. The enforcement of our criminal laws, including serious traffic violations, is not a game where law enforcement officers are “it” and one is “safe” if one reaches “home” before being tagged.

Gasset, 490 So.2d at 98-99 (internal citations omitted).

In Gasset, we relied on the United States Supreme Court’s decision in United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Santana, police officers went to the home of a known drug house to arrest a woman who had sold drugs to an undercover officer. The police saw the woman (Santana) standing in the doorway of the house and pulled up to within fifteen feet of her, displayed then' identification and shouted “police.” Santana retreated into the vestibule of her home, and the officers followed her through the open door where she was arrested. The Court held that Santana was in a “public” place while standing in the open doorway, and that “a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.” Santana, 427 U.S. at 42-43, 96 S.Ct. 2406.

In the case at bar, Williams committed a crime (carrying a concealed firearm) in a public place. The officer, acting in hot pursuit, attempted to make a war-rantless arrest upon probable cause before Williams entered the house. Williams could not thwart this effort, or convert a proper warrantless arrest into one requiring a warrant, simply by reaching his house before the officer reached him.

Finally, the fact that the “hot pursuit” was brief is of no moment. As the United States Supreme Court observed in Santana:

The District Court was correct in concluding that “hot pursuit” means some sort of a chase, but it need not be an extended hue and cry “in and about (the) public streets.” The fact that the pursuit here ended almost as soon as it began did not render it any the less a “hot pursuit” sufficient to justify the warrantless entry into Santana’s house.

Santana, 427 U.S. at 42-43, 96 S.Ct. 2406.

The trial court erred in granting the motion to suppress. We therefore reverse and remand with directions to vacate the order granting the motion to suppress and to enter an order denying same.

      . At the conclusion of the evidentiary hearing, the court heard legal argument from the state and defense. The court took the matter under advisement and, the following day, announced its decision orally. The transcript of that oral announcement reflects no determination on the issue of probable cause.

      . Because the firearm was abandoned voluntarily by Williams, its seizure was lawful and Williams does not contend (nor did the trial court find) that his action in removing the gun from his waistband and tossing it into the bushes was the result of any unlawful conduct by the police. The evidence sought to be suppressed was, in essence, the defendant himself and his identification, fingerprints, photographs, all of which were seized or obtained after he was ordered to come out of the house.

      . See § 790.001(2), Fla. Stat. (2010) (providing a "concealed firearm” is defined as “any firearm... which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.”); Ensor v. State, 403 So.2d 349, 354 (Fla. 1981) (holding "absolute invisibility is not a necessary element to a finding of concealment under section 790.001”). See also Mackey v. State, 83 So.3d 942, 946 (Fla. 3d DCA 2012) (holding the crime of carrying a concealed firearm is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person).

      . Although Sgt. Rodriguez ordered Williams to stop before Williams revealed the gun and threw it into the bushes, the testimony of Sgt. Rodriguez and Officer Diaz established that Sgt. Rodriguez already had reasonable suspicion to justify a temporary detention of Williams and the order to stop was therefore proper. See C.E.L. v. State, 24 So.3d 1181, 1186 (Fla.2009) (holding a "stop is justified when an officer observes facts giving rise to a reasonable and well-founded suspicion that criminal activity has occurred or is about to occur. In turn, whether an officer’s well-founded suspicion is reasonable is determined by the totality of the circumstances that existed at the time of the investigatory stop and is based solely on facts known to the officer before the stop.”)

      . The evidence at the hearing established that when Sgt. Rodriguez ordered Williams out of the home, he did not come willingly. Rather, when the door opened following Sgt. Rodriguez's command, Williams was pushed out of the doorway by his grandmother. It is, at best, unclear whether Williams’ decision to exit the house was "in response to coercive police conduct” in which "there is such a show of authority that the Defendant reasonably believed he had no choice but to comply!.]” see State v. Triana, 979 So.2d 1039, 1044 (Fla. 3d DCA 2008) (quoting United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001) or whether, as Sgt. Rodriguez testified, "[h]is grandmother kicked him out.” Given our holding, it is unnecessary to reach this issue.

      . The fact that Williams was already in the yard of his house when he threw the gun into a bush does not compel a conclusion that the conduct occurred in a "private place.” First, the criminal conduct at issue was the carrying of a concealed firearm, conduct which occurred, and was observed, on the public street prior to Williams’ entry into his yard. The officer's discovery that Williams had been committing a crime occurred when Williams revealed the concealed firearm while in his own yard. Second, even if the criminal conduct could be said to have occurred in Williams' yard, his argument still fails. The Santana Court considered and rejected this very proposition: While it may be true that under the common law of property the threshold of one’s dwelling is "private,” as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a "public” place. She was not in an area where she had any expectation of privacy.... She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.

        Santana, 427 U.S. at 42, 96 S.Ct. 2406.


text:
    LOW KEY LIMITED, INC., Atlantic Davits and Boat Lifts, Inc., and Richard Haight, Appellants/Cross-Appellees, v. James W. ANNESSER, Diane M. Annesser, John W. Annesser, Atlantic Boatlifts, LLC, and Deep Sea Holdings, LLC, Appellees/Cross-Appellants.
    No. 3D12-261.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2012.
    Rehearing Denied Nov. 15, 2012.
    Nicholas W. Mulick, Tavernier, for appellants/cross-appellees.
    Patricia M. Silver, Islamorada, for ap-pellees/cross-appellants.
    Before SHEPHERD, SUAREZ and SALTER, JJ.
   PER CURIAM.

Low Key Limited, Inc., Atlantic Davits & Boatlifts, Inc., and Richard Haight appeal an adverse final judgment entered following a jury trial. As to the appeal regarding the jury’s verdict and final judgment relating to liability and damages, we find no error and thus affirm the final judgment in those respects.

As to the portion of the final judgment determining that the parties are entitled to attorney’s fees and costs but reserving jurisdiction to set the amount of the fees, we dismiss the appeal and cross-appeal of that issue in case number 3D12-261 as a non-final determination not yet ripe for appellate review. E.g., Rhodes v. Newport Bldg. & Constr., Inc., 86 So.3d 1245, 1247 (Fla. 2d DCA 2012) (“Because the order determines that [the appellee] is entitled to fees but does not determine the amount, it is a nonfinal order not yet ripe for appellate review.” (citing Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 165 (Fla. 5th DCA 2010))).

Affirmed in part and dismissed in part.

      . A subsequent order awarding attorney's fees and costs is the subject of a separate and later appeal by Low Key Limited, Inc., case number 3D12-1320. That appeal was stayed pending disposition of this case.