author: WETHERELL, J. VAN NORTWICK, J.,

text:
    WELLS FARGO BANK, N.A., Appellant, v. Michelle A. GIESEL, et al., Appellees.
    No. 1D13-3336.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2014.
    Angela L. Leiner, Douglas C. Zahm, and Douglas M. Bales, St. Petersberg, for Appellant.
    No appearance, for Appellees.
   WETHERELL, J.

Wells Fargo Bank, N.A. (the bank) appeals the order dismissing this foreclosure action in response to its motion to vacate the final judgment, the judicial sale, and the certificates of sale and title. Because dismissal was not requested by the bank or required under the circumstances of this ease, we reverse and remand for further proceedings.

This case started out as a run-of-the-mill foreclosure action. The bank filed a complaint to foreclose the mortgage securing the promissory note executed by Appellees (the borrowers) after the borrowers failed to make the payments required by the note. After languishing for several years, the case proceeded to a non-jury trial and culminated in a final judgment of foreclosure in favor of the bank. The judgment was not appealed. The bank purchased the property at the judicial sale and the trial court thereafter issued certificates of sale and title .to the bank.

The case took an unusual turn when, eight months after the certificate of title was issued (and nine months after the final judgment was entered), the bank filed a motion pursuant to Florida Rule of Civil Procedure 1.540(b) to vacate the final judgment, the judicial sale, and the certificates of sale and title. The basis for the motion was that the mortgage contained an erroneous legal description that was carried into the final judgment, the notice of sale, and the certificates of sale and title. The motion explained that vacating the final judgment and the subsequent actions “is necessary to allow the [bank] to reform the Mortgage ... and to foreclosure [sic] the Property with the correct legal description.” The motion closed with a generic “wherefore clause” asking the court to enter an order granting the motion “and for such other the [sic] further relief that is appropriate.”

The borrowers did not file a response to the motion and the trial court did not hold a hearing on the motion. The court disposed of the motion in the following order:

ORDER DISMISSING CASE, ORDER ON MOTION TO VACATE JUDICIAL SALE, CERTIFICATE OF SALE, CERTIFICATE OF TITLE, AND FINAL JUDGMENT OF FORECLOSURE
THIS CAUSE came on for consideration of [the bank]’s Motion to Vacate Judicial Sale, Certificate of Sale, Certificate of Title and Final Judgment of Foreclosure. The Court having reviewed the court file and pleadings filed by the [bank], it is
ORDERED AND ADJUDGED
1. The Foreclosure Sale held in this action is hereby vacated.
2. The Certificate of Sale is [sic] in this action is hereby vacated.
3. The Certificate of Title issued and recorded on October 3, 2012 is hereby vacated.
4. That the Final Judgment entered on August 2, 2012 is hereby vacated.
5. This Action is Dismissed, without prejudice.

The bold-italicized portions of the order were handwritten by the trial court. The remainder of the order was the typewritten proposed order submitted by the bank with its motion.

The bank timely filed a motion for rehearing challenging the sua sponte dismissal of the case. The motion explained that the bank “did not seek dismissal of the action” and pointed out that “the Court gave no findings as to why it felt the dismissal of the action was an appropriate remedy.” The trial court summarily denied the motion. This appeal followed.

The bank argues on appeal that it was denied due process by the trial court’s sua sponte dismissal of the case. We agree. The bank did not request such relief in its motion, and contrary to the dissent’s contention, the generic request for “further relief that is appropriate” in the “wherefore clause” in the bank’s motion did not give the trial court authority to dismiss this action without at least affording the bank notice and an opportunity to be heard on the issue. See BAC Home Loans Servicing, Inc. v. Headley, 130 So.3d 703, 706 (Fla. 3d DCA 2013) (rejecting “tipsy coachman” argument that judgment for defendants on their counterclaim in a foreclosure action could be affirmed based upon the “wherefore clause” in the counterclaim seeking “such other relief as the court deems just and proper under the circumstance” because that clause did not provide the lender meaningful notice that the defendants were seeking the form of relief ultimately granted by the court); and cf. Liton Lighting v. Platinum Television Grp., Inc., 2 So.3d 366, 367 (Fla. 4th DCA 2008) (“When a trial judge sua sponte dismisses a cause of action on grounds not pleaded, the trial judge denies the parties due process because the claim is being dismissed without notice and an opportunity for the parties and counsel to be heard.”) (internal quotations omitted).

Moreover, on the merits, we conclude that dismissal was not required under the circumstances of this case and, thus, the dismissal of “[tjhis action” ordered by the trial court cannot be justified as “further appropriate relief’ in any event. The dissent’s reliance on Lucas v. Barnett Bank of Lee County, 705 So.2d 115 (Fla. 2d DCA 1998), and Fisher v. Villamil, 62 Fla. 472, 56 So. 559 (1911), in support of the contrary conclusion is misplaced.

Lucas involved an effort to reform the legal description in a foreclosure deed in a separate proceeding after the foreclosure sale. See 705 So.2d at 115. The court held that the deed could not be reformed in this manner because the sale was premised upon the erroneous legal description and other potential bidders may have acted in reliance on that description. Id. at 116. The court explained that the legal description must be corrected before the foreclosure judgment and not in a subsequent separate action. Id. (“If ... the mistaken legal description is not corrected before final judgment of foreclosure, and the mistake is carried into the advertisement for sale and the foreclosure deed, a court cannot reform the mistake in the deed and judgment; rather, the foreclosure process must begin anew.”). The court explained that the proper procedure is to vacate the sale and set aside the foreclosure judgment so as to return the parties to their “original status,” whereupon the bank could then seek to reform the legal description in the mortgage and foreclose based upon the revised legal description. Id. The case said nothing about dismissal of the original foreclosure case being required.

The 1911 Fisher case cited in Lucas for the proposition that “the foreclosure process must begin anew” was likewise a separate, post-sale effort to reform the legal description in a foreclosure deed. See 56 So. at 561. Fisher said nothing about the dismissal of the foreclosure case being required; it simply held that an erroneous legal description in a mortgage cannot be corrected by reforming the deed resulting from the foreclosure sale. Id. There is nothing in Fisher (or Lucas) that precludes the reformation of the mortgage from occurring in the original foreclosure proceeding once the judgment and resulting certificates are set aside. Indeed, that appears to be precisely what happened in Fisher on remand. See Fisher v. Villamil, 65 Fla. 488, 62 So. 481 (1913) (affirming decree entered on remand cancelling the deed and then reforming and foreclosing the mortgage, and rejecting argument that the “amended bill” filed on remand “ma[d]e an entirely new case”).

Here, the bank was not asking the trial court to do what Lucas and Fisher prohibit: reform the legal description in the certificate of title resulting from the foreclosure sale. Instead, the bank was asking the court to do precisely what Lucas and Fisher contemplate: vacate the final judgment of foreclosure, the sale, and the certificates of sale and title, so the bank could reform the mortgage. Had the trial court simply granted the relief requested in bank’s motion (without adding the dismissal language to the order), the parties would have been put back into their prejudgment positions, whereupon the bank could have filed a motion to amend the original complaint to include a count to reform the mortgage to correct a legal description and then the case could have proceeded on the amended complaint. The borrowers would not be prejudiced by this procedure because they will have an opportunity to defend against the amended complaint (if they choose to do so), and this procedure will also avoid the problems outlined by the bank in its brief that would result if it was required to initiate an entirely new case to foreclose the borrowers’ mortgage.

We recognize that the bank brought these problems on itself by including an incorrect legal description in the mortgage. However, once the bank became aware of the error, it acted diligently to undo what had already been done in order to return the case to its pre-judgment posture so that it could reform the mortgage and restart the foreclosure process as contemplated by Lucas and Fisher. There is simply no reason that the bank should be required to initiate an entirely new action to achieve this result when it would have sufficed for the trial court to simply vacate the foreclosure judgment and the resulting certificates (as requested by the bank) and then allow the litigation to proceed in the existing case.

Accordingly, for the reasons stated above, we reverse the portion of the challenged order dismissing “[tjhis action” and we remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

MAKAR, J., concurs; VAN NORTWICK, J., dissents with opinion.

VAN NORTWICK, J.,

dissenting.

I respectfully dissent from the reversal of the trial court’s order that, inter alia, dismissed Wells Fargo’s foreclosure action without prejudice. In my view, governing Florida case law requires affirmance.

In Lucas v. Barnett Bank of Lee County, 705 So.2d 115, 115 (Fla. 2d DCA 1998), the Second District reviewed a final summary judgment that modified “a legal description in a mortgage, partial release of security agreement, and certificate of title,” when the mortgagor had previously obtained a final judgment of foreclosure and purchased the subject property at a foreclosure sale. The appealed modified judgment sought to correct an erroneous legal description of the subject property that was utilized in the original foreclosure judgment and related documents. Id.

Of particular importance for purposes of the disposition of the case under review, the court observed:

When a mortgage contains an incorrect legal description, a court may correct the mistake before foreclosure. If, however, the mistaken legal description is not corrected before final judgment of foreclosure, and the mistake is carried into the advertisement for sale and the foreclosure deed, a court cannot reform the mistake in the deed and judgment; rather, the foreclosure process must begin anew. Fisher v. Villamil, 62 Fla. 472, 56 So. 559 (1911). The reason behind this policy is that, if the mortgage is not reforeclosed, the purchaser would have obtained title to a property that was not properly ordered for sale, advertised, or sold. While the mortgagee who bid its mortgage at the sale might have understood exactly what property was being offered, other potential bidders at the sale might not have had the same understanding. 62 Fla. at 479, 56 So. at 561. As the Fisher court noted, the mortgage may be reformed if a sufficient showing is made, and the reformed mortgage may be foreclosed. But first, the deed to the property must be canceled, and the original foreclosure judgment set aside, such that the parties are returned to their original status. 62 Fla. at 480, 56 So. at 561; cf. § 702.08, Fla. Stat. (1993).

Id. at 116. Applying the above rule, the Second District reversed the summary judgment reforming the mortgage and related documents. Id.

The majority characterizes Fisher and Lucas as requiring that the parties should be returned to their pre-judgment, post-pleading positions. Respectfully, the majority misreads these cases. In my mind, the key proposition to be gleaned from both Fisher and Lucas is that a mistake in the legal description of a foreclosed property cannot be corrected or reformed if the mistake is not corrected prior to entry of final judgment of foreclosure and that, in such a situation, “the foreclosure process must begin anew.” Id. Importantly, this proscription is not limited in application to cases in which a separate proceeding seeks to reform an erroneously described property after final judgment of foreclosure. It is not apparent to me why the holding from Fisher and Lucas should not be applied where, as here, a party files a post-judgment motion in the foreclosure case seeking to correct an erroneous legal description.

Returning to the plain language from the case law, “begin anew” is commonly and reasonably understood to mean to restart from the beginning. Because this case began with the filing of a foreclosure complaint, it seems logical that in order to “begin anew,” the bank would be required to file a new complaint with a correct legal description of the subject real property. Recasting the parties to the positions they occupied at any other point ignores, in my opinion, the plain language from Fisher and Lucas.

Here, Wells Fargo did not seek reformation of the incorrect legal description prior to the entry of the final judgment of foreclosure. Although by dismissing the case the trial court took action that was not specifically requested by Wells Fargo, the appealed order did grant the relief the bank requested, i.e., vacating the erroneous judgment and other papers. The trial court’s sua sponte action, furthermore, could reasonably be interpreted as “such other the [sic] further relief that is appropriate,” as requested in Wells Fargo’s motion to vacate. Because the appealed order stemmed from Wells Fargo’s own motion to vacate, the present case is distinguishable from cases such as BAC Home Loans Servicing, Inc. v. Headley, 130 So.3d 703 (Fla. 3d DCA 2013), where unrequested relief was inappropriately granted against a non-pleading party.

In my view, the trial court was correct in dismissing the entire action and returning the parties “to their original status,” which I perceive to be the statuses they maintained before the case was initiated, because “the legal description [did] not close, and consequently it does not describe an actual parcel of real estate.” Lucas, 705 So.2d at 115-16.

Finally, I recognize that allowing Wells Fargo to file an amended complaint with a correct legal description, as opposed to filing an entirely new complaint, would allow the bank to avoid some potential complications outlined in the answer brief. However, Wells Fargo would not be confronted with any foreclosure-related complications if it had simply used the correct legal description in its original filings. Put another way, Wells Fargo’s error led to the current state of affairs, yet it now wants to be relieved of responsibility for its error. In spite of whatever complications could arise upon the filing anew of a foreclosure complaint, because the dismissal was without prejudice, the way remains open for Wells Fargo to correct the error that derailed the original foreclosure litigation.

Accordingly, I respectfully dissent.

      . The foreclosure complaint was filed in December 2009 and only one of the three borrowers (Michelle Giesel) filed an answer. A default was entered against the other two borrowers (James and Marilyn Giesel) in February 2010. There was very little record activity in the case over the next eight months, and there was no record activity whatsoever between October 2010 and June 2012. The final judgment was entered in August 2012.

      . We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); Wells Fargo Bank, N.A. v. Chatham, 114 So.3d 1062, 1064 (Fla. 1st DCA 2013) ("The dismissal order is a final order for purposes of appellate review because, even though it dismissed this case ‘without prejudice,' the order precluded Wells Fargo from refiling a complaint under the same case number."); Martinez v. Collier Cnty. Pub. Sch., 804 So.2d 559, 560 (Fla. 1st DCA 2002) ("Dismissal without prejudice is final if its effect is to bring an end to judicial labor.”); Carlton v. Wal-Mart Stores, Inc., 621 So,2d 451, 452 (Fla. 1st DCA 1993) ("While the dismissal is ‘without prejudice,’ it is clear that it is ‘without prejudice' to file another, separate, action, rather than 'without prejudice' to file an amended complaint in the first action. We believe that, because the dismissal ends the judicial labor in the first action, the dismissal is sufficiently ‘final’ to permit an appeal.”).

      . This seems unlikely because two of borrowers were defaulted when they did not respond to the original complaint, and none of the borrowers appealed the final judgment of foreclosure or participated in this appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John B. McALPIN, Appellant, v. CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Appellee.
    No. 1D14-1355.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2014.

      William M. Furlow of Grossman, Fur-low, and Bayo, LLC, Tallahassee, for Appellant.
    Thomas F. Kirwin, General Counsel, and Linton Eason, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Appellee.
   PER CURIAM.

John B. McAlpin, Chief of the Sneads Police Department, appeals the Criminal Justice and Standards Training Commission’s final order suspending his law enforcement certification for eighteen months, to be followed by two years’ probationary reinstatement. We reverse as to two of the charges, but affirm as to the misuse of official position charge.

Appellant raises a preliminary issue regarding the adequacy of the disciplinary guidelines adopted by the Commission and incorporated into the moral-character rule. We find this issue without merit, but useful to discuss the structure of the moral-character rule. Law enforcement officers are required to maintain good moral character. § 943.1395(7), Fla. Stat. (2006). Florida law requires the Commission to adopt disciplinary guidelines for failure to maintain good moral character. § 943.1395(8), Fla. Stat. (2006). The Commission has promulgated the moral-character rule, which directly adopts various criminal statutes as actions which constitute “failure to maintain good moral character.” Fla. Admin. Code R. 11B-27.0011(4). As required by the statute mentioned above, the Commission has set forth disciplinary guidelines for each category of offense (e.g., felony, misdemeanor, etc.) and for certain acts within each category (e.g. grand theft, misuse of official position, etc.). Fla. Admin. Code R. 11B-27.005. We find that the Commission’s rules, as raised in the context of this case, provide adequate notice of potential discipline.

On January 10, 2011, the Commission filed an amended administrative complaint against Appellant for failing to maintain good moral character because of alleged acts of witness tampering, perjury, and misuse of official position or any lesser included offenses. The charges stemmed from Appellant’s investigation into sexual abuse allegations made by a child against Shelly Simpson, who was the child’s stepfather, an employee of the City of Sneads, and a friend of Appellant.

On the night of the child’s initial sexual abuse report, Appellant stated to Department of Children and Families (DCF) investigator Amy Bates that he knew the suspect and that the allegations sounded out of character for Simpson. A few weeks into the investigation, Appellant conducted a lengthy interview with the alleged victim. During the interview Appellant repeatedly told her that he believed she was lying, that it was “okay to make this right,” and that he could get her the help she needed. He also asked her how she would feel if her younger brother made similar accusations against her. Appellant’s investigation was eventually taken over by the Jackson County Sheriffs Office, and although charges were filed against Mr. Simpson, he was acquitted. At some point during the investigation, the alleged victim’s grandfather complained and the Florida Department of Law Enforcement (FDLE) began investigating the case as a disciplinary matter.

FDLE’s investigation resulted in a lengthy interview of Appellant, in which he was questioned on various details of how he handled the sexual abuse allegations. During the interview, Appellant was asked whether he was notified by DCF investigator Amy Bates of potential additional vie-tims. Appellant responded he could not recall:

FDLE Investigator: Did Amy Bates ... ever attempt to contact you with information, or additional information, concerning additional victims?
Appellant: No
FDLE Investigator: Did they ever call you on February 14th?
Appellant: Not to my knowledge. It is not noted here. The only time I heard about additional victims was way later after this when the Sheriffs department was investigating this there was some victim from years ago that lived somewhere else.
FDLE Investigator: Do you recall getting a phone call from Amy Bates ... on or about February 14th at 11:33?
Appellant: No- sir, I do not recall that.
FDLE Investigator: Am I correct in understanding that you are denying that you ever got any information from ... Amy Bates regarding additional witnesses?
Appellant: Witnesses?
FDLE Investigator: Witnesses and/or victims.
Appellant: I do not recall getting any information from any of them concerning this. After they provided this medical report, this doctor’s report, I don’t recall any other significant conversations with any of them. No.

The complaint asserted that Appellant was in violation of the moral character rule governing law enforcement officers through violation of sections 914.22(1) (witness tampering), 837.012(1) (perjury), and 112.313(6) (misuse of official position), Florida Statutes, or any lesser included offenses, and that an appropriate penalty should be imposed in accordance with section 943.1395(7). Appellant requested a formal hearing, and the matter was transferred to the Division of Administrative Hearings. A formal hearing was held before an Administrative Law Judge (ALJ), where the parties presented witness testimony and evidentiary exhibits. Following the formal hearing, the ALJ issued a recommended order.

The ALJ found the following facts: that the alleged abuse was reported on January 24, 2007; Bates informed Appellant of possible additional victims on February 14, 2007; Appellant interviewed the alleged victim on February 22, 2007, for more than two hours; the interview seemed more like a suspect interrogation with Appellant trying to persuade the alleged victim to change her testimony; Appellant made clear he thought the alleged victim was lying and told her that she needed to set things right and get long-term counseling for her issues; Appellant stated during his interview with the FDLE investigator that he was not aware of other possible victims, that this statement was false, and that Appellant knew it was false when he made it; Appellant failed to maintain contact with DCF personnel, failed to collect evidence, and failed to further investigate inconsistencies in the alleged victim’s story; and to the extent Appellant conducted an investigation, he did so with the goal of undermining the alleged victim allegations. The ALJ also twice found that Appellant did not believe alleged victim: “In short, from a review of all of the evidence presented in this case, it appears that [Appellant] decided early on that [the alleged victim] was not telling the truth;” and “It was clear that [Appellant] did not believe her story and was determined to get her to change it.”

Based on the findings, the ALJ concluded that the Commission had proven by clear and convincing evidence that Appellant had violated sections 914.22(1), 837.012(1), and 112.318(6), thereby violating section 943.1395(7) and Rule 11B-27.0011(4)(a) and (b). The ALJ also hedged her findings on witness tampering by finding in the alternative the lesser included charge of witness harassment. For failing to maintain good moral character as required by section 943.1395(7), the ALJ recommended that the Commission suspend Appellant’s certification for eighteen months, followed by two years of probation. The Commission thereafter issued a final order adopting the ALJ’s findings of fact, conclusions of law (with very slight modification), and proposed penalty.

Administrative conclusions of law are subject to de novo review. Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001). The decision is subject to reversal if the agency has misinterpreted the applicable law. Payne v. City of Miami, 52 So.3d 707, 735 (Fla. 3d DCA 2010). This Court has the statutory authority to “set aside agency action” if it finds that the agency “has erroneously interpreted a provision of law and [that] a correct interpretation compels a particular action.” § 120.68(7)(d), Fla. Stat. (2014). The appellate court on review is guided by the true nature of the finding and not whether the ALJ labeled it as a finding of fact. Pillsbury v. State, Dep’t. of Health & Rehabilitative Servs., 744 So.2d 1040, 1041 (Fla. 2d DCA 1999). An ALJ’s findings of fact must be based upon competent, substantial evidence. § 120.68(7)(b), Fla. Stat. (2014). Where there is no competent, substantial evidence to support a finding of fact that underpins a charge, the charge must be dismissed. Pic N’ Save Cent. Fla., Inc. v. Dep’t of Bus. Regulation, 601 So.2d 245, 256 (Fla. 1st DCA 1992).

The common thread for the witness tampering and witness harassment conclusions of law is a lack of the requisite mens rea on behalf of Appellant. While the burden of proof may be lower in an administrative setting, requiring only clear and convincing evidence in this case, the elements of the charge do not change from the criminal setting to the administrative setting.

Witness tampering occurs when the accused knowingly uses intimidation or physical force, or threatens another person, or engages in misleading conduct toward another person, with intent to cause or induce any person to withhold testimony from an official investigation or official proceeding. § 914.22(1), Fla. Stat. (2008). Further, witness harassment takes place when the accused intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from attending or testifying in an official proceeding or cooperating in an official investigation. § 914.22(3), Fla. Stat. (2008). The specific intent “to hinder, delay, or prevent the communication of information regarding a crime” must be established to show witness tampering. Gill v. State, 622 So.2d 92, 93 (Fla. 2d DCA 1993). For witness harassment, the intent is less culpable. It requires only the intent to harass and that the witness is thereby dissuaded, delayed, or hindered from testifying. Fla. Std. Jury Instr. (Crim.) 21.11. Harassment is defined as, “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.” Black’s Law Dictionary 721 (7th ed. 1999).

The ALJ stated twice in the recommended order that Appellant did not believe the alleged victim’s accusation against his friend, which defeated the intent required for witness tampering or harassment. As a law enforcement officer, Appellant was entitled to formulate opinions on the credibility of victims, suspects, and witnesses and proceed to investigate the case with those opinions as a starting point. Further, when a law enforcement officer applies investigative interview techniques of the sort used in this case, they can serve the legitimate purpose of trying to reach the truth, or at least what the officer thinks is the truth, which does not constitute witness tampering or harassment.

Appellant was also charged with perjury for supposedly making “a false statement, which he ... [did] not believe to be true, under oath, not in an official proceeding, in regard to any material matter.” § 837.012(1) Fla. Stat. (2008). Mere inaccuracy or confusion is not an adequate basis to find perjury has been committed. Wolfe v. State, 271 So.2d 132, 135 (Fla.1972). Personal opinions or matters of belief are not perjury, and an initially false statement, can be further explained so that the statement taken as a whole is not perjury. See Doyle v. Dep’t of Bus. & Prof'l Regulation, 713 So.2d 1040, 1045 (Fla. 1st DCA 1998). The typical manner of proving perjury is to have two conflicting sworn statements by the same person. See e.g., Rutherford v. State, 939 So.2d 328, 329 (Fla. 4th DCA 2006) (“I know for a fact” in one statement and “I believe” in another is sufficient to support perjury charge).

In this case, the perjury charge is based on statements by two separate individuals. One statement was by DCF investigator Amy Bates, who said that she told Appellant of additional victims, and the other statement was by Appellant, who said he did not recall being told of additional victims. First, both statements could be true. And without conflicting statements in this instance, there is insufficient evidence supporting a perjury charge. Secondly, even if some conflict in fact could be inferred from the statements, Appellant’s statement is one of belief or opinion, not of empirical fact. He .did not specifically deny being told by Bates of additional victims; he just stated, when the statement is taken as a whole, that he did not recall being told such by Bates. Therefore, there is no competent, substantial evidence to find a violation of the moral-character rule based on perjury.

Finally, the statutory proscription against misuse of official position provides that “[n]o public officer ... shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.” § 112.313(6), Fla. Stat. (2008). “Corruptly” is an intent term defined by statute as “done with a wrongful intent and for the purpose of obtaining ... any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.” § 112.312(9), Fla. Stat. (2008). The prohibition against misuse of public office “sweeps widely” and encompasses the type of misuse or attempted misuse of official position alleged here, involving the benefit secured for Appellant’s friend. See Fla. Comm’n on Ethics v. Sullivan, 430 So.2d 928, 934 (Fla. 1st DCA 1983).

The final order’s conclusion that Appellant improperly used, or at least attempted to use, his official position as a city police chief to thwart a potential criminal prosecution of his friend and fellow city employee Mr. Simpson is supported by the record. The ALJ found that Appellant took charge of Mr. Simpson’s criminal investigation, but then: failed to interview witnesses; failed to collect physical evidence (asking the suspect to retrieve evidence from his own home in one instance); ignored information from the DCF about the possibility of other victims; failed to follow-up with medical personnel about their completion of an examination; refused to ' coordinate and cooperate with child protective investigators from DCF or the prosecutor; inappropriately berated the alleged victim while interviewing her as if she were a suspect instead of a child victim; and opined to the assistant state attorney .that there was insufficient evidence to charge Mr. Simpson. Under these facts, competent, substantial evidence supports the conclusion that Appellant wrongfully used his public office by conducting a results-oriented criminal investigation intending to benefit his friend, in that no charges would be filed against him. While Appellant did not have the specific intent during the course of his interview of the victim to harass or tamper with a witness, the totality of the investigation does support the intent to misuse his official position to benefit his friend.

Therefore, we AFFIRM IN PART AND REVERSE IN PART the final order and REMAND for the Commission to dismiss the witness tampering, witness harassment, and perjury changes and to review the discipline imposed by the final order in light of the remaining charge of misuse of official position.

VAN NORTWICK and .OSTERHAUS, JJ., and FENSOM, JAMES B., Associate Judge, concur.


author: SCALES, J.

text:
    Jerry Thomas BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1110.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.

      Jerry Thomas Baker, in proper person.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SCALES, JJ.
   SCALES, J.

Jerry Thomas Baker (Baker), appeals from an order of the Monroe County Circuit Court that transferred his petition for writ of habeas corpus to the Leon County Circuit Court. We vacate the order transferring venue and remand with instructions that the Monroe County Circuit Court dismiss Baker’s petition.

In 1995, Baker was charged in Monroe County with, inter alia, armed robbery. After a jury trial, in 1996, Baker was found guilty and sentenced to life in prison. At all times pertinent to this appeal, Baker has been incarcerated at the Apalachee Correctional Institution East located in Jackson County.

Since his conviction, Baker has filed a direct appeal of his conviction and a multitude of post-conviction motions and habeas petitions — all of which were affirmed, denied, or dismissed without published opinion.

On December 11, 2013 — more than fifteen years after a mandate was issued upon Baker’s unsuccessful direct appeal— Baker filed a petition for writ of habeas corpus in the Monroe County Circuit Court challenging the charging document associated with his 1996 conviction. There is no allegation of newly discovered evidence in the petition.

Without ruling on the merits of Baker’s petition, on January 24, 2014, the Monroe County Circuit Court transferred Baker’s petition to the Second Judicial Circuit in Leon County.

The Leon County Circuit Court reviewed Baker’s petition, determined that Baker was actually attempting to collaterally attack the underlying conviction, and, on February 11, 2014, dismissed Baker’s petition. In its order of dismissal, the Leon County Circuit Court determined that it lacked jurisdiction to adjudicate Baker’s claims seeking post-conviction relief.

Baker then filed the instant appeal seeking review of the Monroe County Circuit Court’s January 24, 2014 order transferring venue.

In his appeal, Baker seems to concede that his petition seeks post-conviction, rather than habeas corpus, relief. Baker argues: (1) the Monroe County Circuit Court has jurisdiction over his habeas petition; and (2) the Monroe County Circuit Court should have construed his habeas petition as a motion for post-conviction relief and adjudicated same.

Baker’s first argument is correct. The Monroe County Circuit Court, the court of conviction, has jurisdiction over Baker’s habeas petition because the petition challenges the sufficiency of the charging document which amounts to a collateral attack on Baker’s 1996 conviction. See Richardson v. State, 918 So.2d 999, 1001 (Fla. 5th DCA 2006) (“[T]he general rule [is] that a petition for writ of habeas corpus should be filed in the circuit court where the defendant is detained.... But there is an exception ... ‘[w]hen a petitioner attacks the validity of the conviction ... jurisdiction in- habeas proceedings lies with the trial court that imposed the sentence and rendered the judgment of conviction.’ ”) (citation omitted).

Baker’s second argument, however, is incorrect. The Monroe County Circuit Court did not err by failing to construe the habeas petition as a motion for post-conviction relief. The grounds raised by Baker are inappropriate for a habeas petition because they could have and should have been raised on direct appeal. See Price v. State, 937 So.2d 702, 702-03 (Fla. 5th DCA 2006); Moore v. State, 817 So.2d 1072 (Fla. 5th DCA 2002). Additionally, if these grounds were asserted pursuant to Florida Rule of Criminal Procedure 3.850, they are time-barred. See Fla. R. Crim. P. 3.850(b).

Generally, “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.” See Fla. R. App. P. 9.040(c) (applicable to the circuit court in this case, Fla. R. App. P. 9.010 & 9.030(c)(3)); Zuluaga v. State, Dep’t. of Corrs., 32 So.3d 674, 677 (Fla. 1st DCA 2010).

In certain instances, however, dismissal rather than treatment as a Florida Rule of Criminal Procedure 3.850 motion, is the appropriate remedy when a habeas petition challenges the judgment and sentence. See Baker v. State, 878 So.2d 1236, 1245-46 (Fla.2004) (“Accordingly, from now on, we will dismiss as unauthorized, habeas corpus petitions filed by noncapital defendants that seek the kind of collateral postconviction relief available through a motion filed in the sentencing court, and which (1) would be untimely if considered as a motion for postconviction relief under rule 3.850, (2) raise claims that could have been raised at trial or, if properly preserved, on direct appeal of the judgment and sentence, or (3) would be considered a second or successive motion under rule 3.850 that either fails to allege new or different grounds for relief, or alleges new or different grounds for relief that were known or should have been known at the time the first motion was filed.”); Richardson, 918 So.2d at 1004 (“[W]e emphasize that when a habeas, petition is filed raising inappropriate issues that fall within one of the three categories enumerated in Baker, the appropriate disposition is dismissal. Treating the petition as a rule 3.850 motion and deciding the issues on the merits based on attendant hearings before the trial court is indeed a waste of valuable judicial resources.”).

Accordingly, we vacate the trial court’s January 24, 2014 order transferring venue, and remand with instructions that the Monroe County Circuit Court dismiss Baker’s petition.

Remanded with instructions.

      . See Baker v. State, 705 So.2d 14 (Fla. 3d DCA 1998) (Table); Baker v. Singletary, 728 So.2d 228 (Fla. 3d DCA 1999) (Table); Baker v. Singletary, 729 So.2d 389 (Fla. 1999) (Table); Baker v. State, 766 So.2d 1053 (Fla. 3d DCA 2000) (Table); Baker v. State, 812 So.2d 418 (Fla. 3d DCA 2002) (Table); Baker v. State, 814 So.2d 1049 (Fla. 3d DCA 2002) (Table); Baker v. State, 816 So.2d 627 (Fla. 3d DCA 2002) (Table); Baker v. State, 845 So.2d 201 (Fla. 3d DCA 2003) (Table); Baker v. State, 896 So.2d 762 (Fla. 3d DCA 2005) (Table); Baker v. State, 95 So.3d 234 (Fla. 3d DCA 2012) (Table).

      . The cases cited in support of the order transferring venue are distinguishable from the instant case. In those cases, prisoners sought mandamus relief against the Department of Corrections (DOC), and the courts determined that the proper venue was Leon County, where the DOC has its headquarters. See Stovall v. Cooper, 860 So.2d 5 (Fla. 2d DCA 2003); Barber v. State, 661 So.2d 355 (Fla. 3d DCA 1995). Both parties in the instant case believe Baker’s petition was transferred under the Monroe County Circuit Court’s mistaken belief that Baker was incarcerated in Leon County.


text:
    Alfonso PONTON, Petitioner, v. The STATE of Florida, Repondent.
    Nos. 3D14-1028, 3D14-2438.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.
    Rehearing Denied Jan. 20, 2015.
    Alfonso J. Ponton, in proper person.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for respondent.
    Before SUAREZ, SALTER and SCALES, JJ.
   PER CURIAM.

In appellate case number 3D14-1028, Alfonso Ponton, acting pro se, petitions this court for a writ of mandamus with respect to the circuit court’s order directing the Eleventh Judicial Circuit of Florida not to accept any further pro se pleadings from Ponton in lower tribunal cases F81-27294, F81-28089, and F81-25758.

In appellate case number 3D14-2438, Ponton, acting pro se, petitions this court for a writ of habeas corpus arguing his appellate counsel rendered him ineffective assistance in handling the appeal of his judgment and conviction in lower tribunal cases F81-27294, F81-28089, and F81-25758.

We consolidate Ponton’s petitions under appellate case number 3D14-1028, and dismiss both petitions.

On October 16, 2002, this court prohibited Ponton “from filing any additional pro se appeals, including pleadings, motions, and petitions relating to any issue in Lower Tribunal cases F81-27294, F81-28089, and F81-25758.” See Ponton v. State, 837 So.2d 435, 435 (Fla. 3d DCA 2002). As of October 16, 2002, Ponton had filed at least thirty-eight post-conviction motions and petitions in state court alone; all of which were unsuccessful.

In contravention of our prohibition in 2002, Ponton continued to file unsuccessful pro se appeals and petitions relating to the above-mentioned lower tribunal cases. See Ponton v. State, 117 So.3d 1100 (Fla. 3d DCA 2013) (denying petition for writ of mandamus); Ponton v. State, 982 So.2d 698 (Fla. 3d DCA 2008) (affirming post-conviction appeal); Ponton v. State, 972 So.2d 193 (Fla. 3d DCA 2007) (affirming post-conviction appeal).

Additionally, on December 12, 2013, Ponton filed the instant pro se petition for writ of mandamus. And, on October 9, 2014, Ponton filed the instant pro se petition for writ of habeas corpus. There comes a point when “enough is enough.” Philpot v. State, — So.3d - (Fla. 3d DCA 2014) (quoting Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995)).

As such, the clerk is directed not to accept further pro se appeals, including pleadings, motions, and petitions from Ponton relating to lower tribunal numbers F81-27294, F81-28089, and F81-25758. Because Ponton has abused the post-conviction process and filed frivolous appeals and petitions in this court, we direct the clerk of this court to forward a certified copy of this opinion to the appropriate institution for disciplinary procedures, which may include forfeiture of gain-time. § 944.28(2)(a), Fla. Stat. (2014).

Petition for writ of mandamus dismissed.

Petition for writ of habeas corpus dismissed.

Sanctions entered.

      . Ponton filed his petition in appellate case number 3D14-1028 directly with the Florida Supreme Court. The Florida Supreme Court transferred the case to this court pursuant to Harvard v. Singletary, 733 So.2d 1020 (Fla.1999).


author: WALLACE, Judge.

text:
    INFRAX SYSTEMS, INC., Appellant, v. Pierce Glen WOOD, Appellee.
    No. 2D13-3228.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.
    Craig A. Huffman, Tampa, for Appellant.
    J. Emory Wood of J. Emory Wood, P.A., St. Petersburg, for Appellee.
   WALLACE, Judge.

After a bench trial, the trial court entered a money judgment in favor of Pierce Glen Wood and against Infrax Systems, Inc. (Infrax). The amount of the judgment is $68,575.38. On Infrax’s appeal from the judgment, we reverse the portion of the judgment representing treble damages and processing fees awarded under section 68.065, Florida Statutes (2011), because there was no presentment and dishonor of the checks at issue.

Mr. Wood was an employee of Infrax. A portion of the judgment amount comprises wages and unreimbursed business expenses due from Infrax to Mr. Wood. The major portion of the judgment amount represents treble damages and processing fees awarded under section 68.065 for checks delivered by Infrax to Mr. Wood that were not paid.

With regard to the claim arising from the checks delivered by Infrax to Mr. Wood, the analysis is straightforward. Mr. Wood never presented.the checks to the bank upon which they were drawn for payment; thus the checks were not dishonored. See §§ 673.5011; 673.5021, Fla. Stat. (2011). It follows that Mr. Wood was not entitled to claim treble damages or processing fees on the checks in accordance with section 68.065. See Schneider v. Slichter, 917 So.2d 299, 301 (Fla. 4th DCA 2005) (Gunther, J., dissenting) (“A civil action pursuant to section 68.065, Florida Statutes requires proof that: (a) a check was made and delivered to the plaintiff and (b) the ‘payment was refused by the drawee bank because of the lack of funds.’ ”); Tepper v. Citizens Fed. Sav. & Loan Ass’n, 448 So.2d 1138, 1140 (Fla. 3d DCA 1984) (“The normal conditions precedent [to a drawer’s liability on an instrument] include presentment to the drawee, dishonor, and notice of dishonor.”). Where, as in this case, the payee merely inquires of the drawee bank concerning whether there are sufficient funds in the drawer’s account to cover a check, there is no presentment. See Hart v. Sims, 702 F.2d 574, 578 n. 7 (5th Cir.1983); Kirby v. Bergfield, 186 Neb. 242, 182 N.W.2d 205, 208 (1970); Ford v. Hagel, 83 Wash.App. 318, 920 P.2d 260, 263 (1996).

However, Mr. Wood did present sufficient evidence at the hearing to establish Infrax’s liability on his unreimbursed business expenses claim and a portion of his wage claim. Accordingly, we reverse the final judgment and remand this case to the trial court for the entry of an amended final judgment in favor of Mr. Wood and against Infrax limited to the unpaid wages proven at the final hearing of $26,228.95 and unreimbursed business expenses of $5733, together with prejudgment interest on these amounts. On remand, the trial court may also consider and enter an award of attorney's fees and costs in favor of Mr. Wood in accordance with its reservation of jurisdiction.

Reversed and remanded with directions.

CASANUEVA and SLEET, JJ., Concur.

      . In the final judgment, the trial court ruled that Mr. Wood was entitled to an award of attorney’s fees and reserved jurisdiction to determine the amount of a reasonable attorney's fee and costs,

      . Mr. Wood also pleaded a claim for $1386 in earned sales commissions. However, he did not introduce any evidence regarding this claim at the final hearing.

      . This figure includes $1346.83 in net pay for five pay periods and $1499.60 in net pay for thirteen pay periods.


author: VILLANTI, Judge.

text:
    Bryon L. REDDICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-2851.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2015.
   VILLANTI, Judge.

Bryon L. Reddick entered a plea of no contest to battery on a detention facility employee with fluids, and the trial court sentenced him to thirteen months’ imprisonment, with 105 days’ credit, to be served concurrently with any active sentence. Mr. Reddick did not appeal but filed a timely motion to vacate his sentence under Florida Rule of Criminal Procedure 3.850. We reverse the postconviction court’s summary denial of his motion.

Mr. Reddick asserted two claims in his motion. First, he argued that his plea was involuntary because, it was not entered with an understanding of the nature of the charge or the consequences of the plea. Second, he contended that he was not advised that costs would be imposed or that he had a right to appeal the imposition of the costs.

The postconviction court found Mr. Red-dick’s claims conclusively refuted by the plea form it attached to its order. Specifically, the court noted that the plea form stated that Mr. Reddick entered the plea voluntarily of his own free will and that he was waiving his right to appeal. In addition, the plea form specifically listed the costs that would be imposed.

While Mr. Reddick’s plea form conclusively refutes his claim concerning the imposition of costs, it does not refute his claim that his plea was involuntary. See Johnson v. State, 60 So.3d 1045, 1052 (Fla. 2011) (noting that voluntariness of a plea is a recognized ground for relief under rule 3.850(a)(5)); Robinson v. State, 373 So.2d 898, 903 (Fla.1979) (“[T]he failure of a defendant to raise the issue of the validity of the plea by an appeal does not prohibit him from subsequently seeking collateral relief if the issues have not been previously addressed and ruled upon.”). Therefore, the postconviction court should not have summarily denied this claim.

However, Mr. Reddick failed to allege facts in his motion demonstrating that withdrawal of his plea was necessary to correct a manifest injustice. See LeDuc v. State, 415 So.2d 721, 722 (Fla.1982) (holding that the postconviction court should evaluate an involuntary plea claim under Robinson, which held that a defendant must prove that a manifest injustice occurred in order to withdraw his plea after sentencing); see also Bradford v. State, 869 So.2d 28, 29 (Fla. 2d DCA 2004) (holding that in seeking postconviction relief from convictions obtained through a plea, movant must allege and prove that withdrawal of his plea is necessary to correct a manifest injustice). Because of this pleading deficiency, Mr. Reddick’s motion was facially insufficient as to this claim.

Accordingly, we reverse the postcon-viction court’s order and remand with directions for the court to strike Mr. Reddick’s motion and provide him an opportunity to amend his motion to state a facially sufficient claim if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So.2d 754, 762 (Fla.2007). We caution Mr. Reddick that if he seeks to withdraw his plea, either the State or the defense may pursue new plea negotiations or refuse them and proceed to trial. If he is convicted after a trial, Mr. Reddick may be sentenced to a longer term of imprisonment than the sentence he presently serves.

Reversed and remanded with directions.

CASANUEVA and CRENSHAW, JJ., Concur.

      . To the extent that Mr. Reddick claimed in his motion that the Department of Corrections continued to hold him when his sentence had expired, Mr. Reddick must first raise that issue in an administrative complaint filed with the Department. See Grace v. State, 920 So.2d 719, 719 (Fla. 4th DCA 2006). We note that Mr. Reddick’s sentence in this case was ordered to run concurrently with any term of imprisonment he was then serving.


author: ROTHENBERG, J.

text:
    STARR INDEMNITY & LIABILITY CO., Petitioner, v. Helon S. MORRIS, Respondent.
    No. 3D14-2733.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.

      Hamilton, Miller & Birthisel, LLP, and Jerry D. Hamilton, Michael J. Dono, Miami, and Robert M. Oldershaw, Cooper City, for petitioner.
    Robby Thomas Cook, St. Augustine; and Thomas E. Woods, Islamorada, for respondent.
    Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   ROTHENBERG, J.

Starr Indemnity & Liability Co. (“Starr”) petitions this Court for a writ of certiorari based on the trial court’s denial of its motion to dismiss or, in the alternative, to sever Helen S. Morris’s (“Morris”) claim against Starr based on Florida’s non-joinder statute, section 627.4136 of the Florida Statutes (2014). Because the trial court’s failure to sever Morris’s coverage claim against Starr from Morris’s tort suit against Starr’s named insured is a departure from the essential requirements of law that would cause Starr irreparable harm, we grant the petition in part and direct the trial court to sever the coverage claim from the tort suit.

Starr is the insurance provider for Matador Sport Fishing, LLC (“Matador”). Matador is a sport fishing company that allows customers to board its vessel (also named the Matador) and angle for various types of fish in the Florida Keys. Matador’s insurance policy comprises coverage for various types of loss, including liability coverage should one of Matador’s customers be injured while aboard one of its vessels under certain circumstances.

Morris boarded Matador’s ship to go fishing with her granddaughter on July 11, 2013. Morris apparently slipped, fell, and landed on a bucket on the deck of the ship, thereby incurring substantial injury. Morris subsequently brought a negligence action against Matador (Count I) and the captain of the vessel (Count II) and a breach of contract action against Starr (Count III). Morris’s breach of contract claim against Starr is not premised on Starr’s liability coverage of Matador, through which Starr may ultimately be held responsible if Matador is found liable for negligence, but rather, the breach of contract claim alleges that Morris is an omnibus insured under Starr’s policy’s Medical Coverage clause who is contractually entitled to recover medical costs directly from Starr.

Starr filed a motion to dismiss the breach of contract action based on Florida’s nonjoinder statute, which generally provides that a liability insurer cannot be joined in the tort suit against its insured until a settlement or verdict is entered. § 627.4136. The trial court denied that motion, ruling that the nonjoinder statute did not apply because Morris’s breach of contract action was based on her allegations that she was an insured under the terms of the contract and had a direct action to recover. Starr filed a motion for reconsideration of its motion to dismiss the action or, in the alternative, to sever the contract action against Starr from the negligence action against its named insured. The trial court denied this motion for the same reason. Starr then timely filed this certiorari petition.

In order to obtain certiorari relief, Starr must establish that the trial court’s order constitutes a departure from the essential requirements of law resulting in irreparable harm, i.e., material injury for the remainder of the case that cannot be corrected by a postjudgment appeal. Citizens Prop. Ins. Corp. v. San Perdido

Ass’n, 104 So.3d 344, 351 (Fla.2012). The law is well established that a trial court’s incorrect application of Florida’s nonjoin-der statute establishes the irreparable harm necessary for certiorari relief. See Lantana Ins., Ltd. v. Thornton, 118 So.3d 250, 251 (Fla. 3d DCA 2013); General Star Indem. Co. v. Boran Craig Barber Engel Constr. Co., 895 So.2d 1136, 1138-39 (Fla. 2d DCA 2005); Merchs. & Businessmen’s Mut. Ins. Co. v. Bennis, 636 So.2d 593, 595 (Fla. 4th DCA 1994). Thus, we must examine whether the trial court’s order departs from the essential requirements of law. We hold that it does.

Florida’s nonjoinder statute provides, in relevant part:

627.4136. Nonjoinder of insurers.—
(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(3) Insurers are affirmatively granted the substantive right to insert in liability insurance policies contractual provisions that preclude persons who are not designated as insureds in such policies from joining a liability insurer as a party defendant with its insured prior to the rendition of a verdict. The contractual provisions authorized in this subsection shall be fully enforceable.

§ 627.4136. “ ‘The legislative intent behind the [nonjoinder] statute is to ensure that the availability of insurance has no influence on the jury’s determination of the insured’s liability and damages.’ ” GEICO Gen. Ins. Co. v. Harvey, 109 So.3d 236, 238 (Fla. 4th DCA 2013) (quoting Boran Craig, 895 So.2d at 1138); Mid-Continent Cas. Co. v. United Rentals, Inc., 62 So.3d 1173, 1175 (Fla. 4th DCA 2011); see also Nevarez v. Friskney, 817 So.2d 856, 858 (Fla. 5th DCA 2002). Thus, the trial court should either dismiss or sever related actions against a liability insurer to prevent prejudice.

Morris contends that section 627.4136 does not apply in this instance because she has pled a direct claim against Starr as an omnibus insured under the policy. Morris is correct that section 627.4136 does not technically apply when a claimant alleges that he or she is an insured under the policy terms. See Mucha v. Atlas Van Lines, Inc., 989 So.2d 697, 698 (Fla. 5th DCA 2008). Accordingly, the trial court correctly denied Starr’s motion to dismiss the action with prejudice. Id. However, the legislative intent underlying section 627.4136 mandates that the direct action against Starr be severed to prevent jurors from discovering that an insurance company may be held responsible for some or all of the judgment in the negligence suit against Matador. Boran Craig, 895 So.2d at 1138 (holding that the trial court abuses its discretion by not severing the action even when there is a direct policy claim against an insured due to the risk of jury prejudice).

As the Fourth District Court of Appeal held in Bennis: “There is no reason for [a policy coverage action against the liability insurer and a negligence suit against its insured] to be tried together. Trying the coverage issues with the liability and damages claims defeats the purpose and policy of the non-joinder statute.” 636 So.2d at 595. Such claims “are essentially unrelated and constitute separate and distinct legal actions.” Id. Thus, the trial court departed from the essential requirements of law by refusing to sever Morris’s breach of policy claim against Starr from her negligence suit against Matador. We grant the petition insofar as it challenges the trial court’s denial of the motion to sever the actions but deny the portion of the petition challenging the trial court’s denial of Starr’s motion to dismiss the action with prejudice.

Petition granted in part; denied in part.


author: TAYLOR, J. GROSS, J.,

text:
    LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. PIN-PON CORPORATION and Lexington Insurance Company, Appellees.
    Nos. 4D12-3997, 4D12-4002.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Scott J. Frank and Jared M. Krukar of Butler. Pappas Weihmuller Katz Craig LLP, Tampa, for appellant.
    Curtis B. Miner and Barbara A. Silver-man of Colson Hicks Eidson, Coral Gables, and Stephen A. Marino, Jr., and Rochelle N. Wimbush of Ver Ploeg & Lumpkin; P.A., Miami, for appellee.
   TAYLOR, J.

Appellant Landmark American Insurance Company, an excess insurer, appeals an amended final judgment awarding the insured, Pin-Pon Corporation, over $5.8 million for breach of the excess insurance policy. The insurance claims arose from extensive hurricane damage to the insured’s hotel as a result of Hurricanes Frances and Jeanne. We reject Landmark’s argument concerning the proper interpretation of the primary policy. We reverse, however, for a new trial as to code upgrade damages, concluding that the trial court erred in admitting the insured’s Exhibit 98 as a business record.

Factual Background

In June 2004, Pin-Pon purchased the Palm Court Hotel. At the time of the purchase, Pin-Pon intended to perform renovations to improve the hotel, but planned to keep the hotel open during the renovation process. In September 2004, however, Hurricane Frances and Hurricane Jeanne struck South Florida, causing damage to the hotel before any renovations had commenced.

Pin-Pon insured the Palm Court Hotel under a primary commercial property insurance policy it held with Lexington Insurance Company. The Lexington policy provided a per-occurrence “Limit of Insurance” of $2,500,000. The declarations page of the Lexington policy does not list any “aggregate limit” of insurance.

Endorsement # 2 of the Lexington policy added the Palm Court Hotel to the schedule of locations. Endorsement #2 further states:

AMOUNT OF INSURANCE:
BUILDING: $8,000,000
CONTENTS: $2,000,000
BUSINESS INCOME: $1,382,368

The trial court found that the Lexington policy was ambiguous and construed it as a blanket $2.5 million policy with no sublimit of liability for each category.

Additionally, Pin-Pon insured the hotel under an excess commercial property insurance policy it held with Landmark. The Landmark policy is a form-following excess policy under which Landmark’s liability is subject to the same terms and conditions'of the Lexington Policy, unless modified by the Landmark policy. Under the Landmark policy, the scheduled limit of liability for each scheduled item of property is as follows: $8,800,000 for the building; $2,200,000 for personal property; $1,520,604.80 for business income; and $2,500,000 for code upgrade coverage.

Pin-Pon submitted claims to both Lexington and Landmark for damages arising from Frances and Jeanne. During the claim adjustment process, Lexington paid Pin-Pon the full $2.5 million policy limits with respect to the Frances claim, and paid $533,924.12 with respect to the Jeanne claim. Landmark paid Pin-Pon $2,059,893.43 on the Frances claim, but paid nothing on the Jeanne claim, given that Lexington had not yet paid its policy limits under the primary policy with respect to that claim.

Pin-Pon disagreed with its insurers over what additional amounts were due under the policies. Pin-Pon brought a breach of contract action in February 2009 against Landmark in connection with the Frances claim, and brought a separate breach of contract action in September 2009 against both Landmark and Lexington in connection with the Jeanne claim. The trial court later consolidated the two cases for purposes of trial.

After a three-week trial, the jury returned a verdict finding that Pin-Pon was entitled to $902,933.40 in additional building damages and $1,499,949.30 in additional code upgrade damages resulting from Hurricane Frances. The jury also found that Frances had caused 15 months of business interruption, and that Jeanne had caused 3 months of business interruption. Based on the parties’ stipulation as to the monthly amount of business interruption damages, the total business interruption damages from Frances totaled over $3.6 million. The trial court’s interpretation of the primary policy allowed Pin-Pon to allocate the entire $2.5 million per occurrence limits of the Lexington policy to the business interruption award for Frances.

The court denied Landmark’s post-trial motions and entered an amended final judgment in favor of Pin-Pon in the amount of $5,827,306.66 plus attorney’s fees and costs. This appeal ensued.

Interpretation of the Primary Policy

On appeal, Landmark first claims that the trial court erred when it permitted Pin-Pon to allocate the entire insurance proceeds from the Lexington policy to the business income award. Landmark argues that the insurance policies unambiguously established the maximum amount Pin-Pon could recover for three categories of damages, including business interruption damages. Specifically, Landmark argues that the Lexington primary policy set a business income coverage limit of $1,382,368.

In response, Pin-Pon argues that the trial court properly allowed it to allocate the proceeds of its primary insurance policy with Lexington so as to maximize recovery under the excess policy. Specifically, Pin-Pon contends that the Lexington policy did not establish sublimits of insurance for specific types of damage. Pin-Pon maintains that when the Lexington policy is construed so as to give effect to all of its provisions, it is clear that the Lexington policy was a blanket policy of $2,500,000 and that the values in Endorsement # 2 did not limit the coverages provided. Finally, Pin-Pon argues that to the extent there was any ambiguity in the policy, it was properly resolved in favor of the insured so as to provide the greatest amount of coverage.

Because the interpretation of an insurance contract presents a question of law, an appellate court applies a de novo standard of review. Arias v. Affirmative Ins. Co., 944 So.2d 1195, 1197 (Fla. 4th DCA 2006).

An insurance contract must be construed in accordance with the plain language of the policy. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003). “[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). Indeed, section 627.419(1), Florida Statutes (2004), requires that “[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by ... any rider or endorsement thereto.”

If the terms of a contract are clear and unambiguous, the court is bound by the plain meaning of those terms. Emerald Pointe Prop. Owners’ Ass’n v. Commercial Constr. Indus., Inc., 978 So.2d 873, 877 (Fla. 4th DCA 2008). Thus, where a contract is unambiguous, the parties’ intent must be gleaned from “the four corners of the document.” Dows v. Nike, Inc., 846 So.2d 595, 601 (Fla. 4th DCA 2003). “In the absence of ambiguity, the language itself is the best evidence of the parties’ intent and the plain meaning controls.” Id.

If, however, the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage, the policy is ambiguous. Auto-Owners, 756 So.2d at 34. Where policy language is ambiguous, it “should be construed liberally in favor of the insured and strictly against the insurer.” State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998). Moreover, a court may consider extrinsic evidence to clarify the meaning of an ambiguous contract. Gorman v. Kelly, 658 So.2d 1049, 1052 (Fla. 4th DCA 1995).

The resolution of this point on appeal turns on whether the primary policy is a blanket policy or a scheduled policy. “A distinction must be made between a policy which speaks in terms of a lump-sum obligation or value of the property and one which separately schedules different items of property.” 12 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 175:90 (3d ed. 2014).

The essence of a blanket policy “is that it invariably attaches to, and covers to its full amount, every item of property described in it.” Id. at § 177:72. “If the loss upon one item exhausts the full amount of the policy, the whole insurance must be paid and there can be no apportionment of it.” Id.

By contrast, in the case of a scheduled policy, “each separately treated item of property is in effect covered by a separate contract of insurance and the amount recoverable with respect to a loss affecting such property is determined independently of the other items of property.” Id. at '§ 175:90.

Here, as noted above, Endorsement # 2 of the Lexington policy added the Palm Court Hotel to the schedule of locations, and further states:

AMOUNT OF INSURANCE:
BUILDING: $8,000,000
CONTENTS: $2,000,000
BUSINESS INCOME: $1,382,368

Paragraph 36 of the Lexington policy states that “[t]he values and schedule of property declared to [Lexington] at the inception of the policy are for premium purposes only and shall not limit the coverages provided by this policy.”

The “Occurrence Limit of Liability” provision of the Lexington policy states:

It is understood and agreed that the following special terms and conditions apply to this policy:
1. The limit of liability or Amount of Insurance shown on the face of this policy, or endorsed onto this policy, is the total limit of [Lexington’s] liability applicable to each occurrence, as hereafter defined.
2. The premium for this policy is based upon the Statement of Values on file with [Lexington] or attached to this policy. In the event of loss hereunder, liability of [Lexington], subject to the terms of paragraph one (1) above, shall be limited to the least of the following:
a. The actual adjusted amount of loss, less applicable deductible(s).
b. The total stated value for the property involved, as shown on the latest Statement of Values on file with [Lexington], less applicable deductible(s).
c. The limit of Liability or Amount of Insurance shown on the face of this policy or endorsed onto this policy.

Occurrence Limit of Liability Form PR9014 (01/91) (inconsistent capitalization in original).

Endorsement # 4, however, deleted the limitation in paragraph 2.b. of the Occurrence Limit of Liability form. Endorsement # 4 states:

In accordance with the terms and conditions of the policy, it is hereby understood and agreed that the following changes are made to the policy:
1) Occurrence Limit of Liability, Form No. PR9014 (01/91), Clause 2, Item B, is deleted.

When the Lexington policy is construed as a whole, the only way to harmonize these provisions is to conclude that the policy is a blanket policy with a total limit of $2,500,000 per occurrence and no sub-limit for business income damages. We find that the “Amount of Insurance” figures in Endorsement # 2 must refer to the values declared to Lexington at the inception of the policy, and do not set specific caps on the amount of coverage for the three categories.

This interpretation is supported by Endorsement # 4, which expressly eliminated the stated values as a limitation of liability under the policy. Normally, insurers rely upon paragraph 2.b. of the Occurrence Limit of Liability form when arguing that a policy is a scheduled, rather than blanket, policy. See, e.g., Fair Grounds Corp. v. Travelers Indem. Co. of Ill., 742 So.2d 1069, 1072 (La.Ct.App.1999) (“It is undisputed here that the above references to ‘statements of values on file with us’ mean that these were scheduled, rather than blanket, policies.”). Endorsement # 4 was undoubtedly intended to change the meaning of the policy by deleting paragraph 2.b. from the Occurrence Limit of Liability form. Interpreting the policy as a scheduled policy would fail to give any meaning or effect to Endorsement # 4.

The fact that Endorsement # 2 of the Lexington policy lists a business income value of $1,382,368 as the “Amount of Insurance” does not mean that this figure is a sublimit of liability for business income damages. Paragraph 36 of the policy specifically states that the values and schedule of property declared to Lexington “are for premium purposes only and shall not limit the coverages provided by this policy.”

Nor does paragraph 2.c. of the Occurrence Limit of Liability form mean that the policy is a scheduled policy with- sub-limits of liability for each category of property set forth in Endorsement # 2. Under paragraph 2 of the Occurrence Limit of Liability form, Lexington’s liability for a loss was limited to the least of: “a. The actual adjusted amount of loss, less applicable deductible(s).... [or] c. The Limit of Liability or Amount of Insurance shown on the face of this policy or endorsed onto this policy.”

Paragraph.2.c., however, must be interpreted in light of Paragraph 1, which states that “[t]he limit of liability or Amount of Insurance shown on the face of this policy, or endorsed onto this policy, is the total limit of [Lexington’s] liability applicable to each occurrence.... ” (Emphasis added).

Under paragraph 1, the phrase “[t]he limit of liability or Amount of Insurance” refers to the “total limit of ... liability applicable to each occurrence.” The phrase refers to a single, total limit of liability; it does not refer to separate limits of liability for each category of insurance. Moreover, because paragraph 2.c. mirrors the language of paragraph 1, the phrase “limit of liability or Amount of Insurance” in paragraph 2.c. must mean the same thing as the identical language in paragraph 1.

We conclude that paragraph 2.c. is necessarily referring to the policy limit of $2.5 million, which is the total limit of Lexington’s liability applicable to each occurrence. In other words, paragraph 2.c. does not operate as a scheduled policy with limits of insurance based on the “Amount of Insurance” figures in Endorsement # 2.

The problem with interpreting the “Amount of Insurance” values in Endorsement # 2 as being equivalent to the “limit of Liability or Amount of Insurance” referenced in paragraph 2.c. is that this interpretation would have the absurd result of increasing the building insurance to $8 million per occurrence. If Landmark’s interpretation were correct, the policy would be a scheduled policy, which would mean that each separately treated category in Endorsement # 2 would in effect be covered by a separate contract of insurance with independent limits of $8 million for the building, $2 million for the contents, and $1,382,368 for business income. Applying Landmark’s logic, the $8 million value in Endorsement #2 would be the “Amount of Insurance” for the building that was “endorsed onto this policy.” Therefore, following Landmark’s interpretation to its logical conclusion, the $2.5 million per-occurrence limit of the Lexington policy would ■ be superseded by the figures in Endorsement # 2 and would no longer operate as the total limit of Lexington’s liability. Such an interpretation cannot be accepted.

When the Lexington policy is read as a whole, giving every provision its full meaning and operative effect, we conclude that the Lexington policy unambiguously provides a blanket limit of $2,500,000 per occurrence with no sublimit for business income damages. Interpreting the Lexington policy as a blanket policy risks the least variation to the policy as a whole.

At a minimum, the insured’s interpretation of the Léxington policy as a blanket policy is reasonable. Thus, even if Landmark’s interpretation of the Lexington policy were also a reasonable one, the policy would be ambiguous and should be interpreted in the insured’s favor.

Moreover, assuming the policy were ambiguous, extrinsic evidence supports the insured’s interpretation of the Lexington policy. In response to a request for admissions, Lexington admitted that “the ‘Amount of Insurance’ values, designated in Endorsement [# 2] of Lexington Policy for the property ... do not operate as limits of liability with respect to each of the coverages for Building, Contents and Business Income.” Lexington further admitted that its policy provided a “blanket limit of $2,500,000 per occurrence” and that Endorsement # 2’s “Schedule of Locations” had no bearing on the coverage, as it was “showing the value at the location for rating and not the amount of coverage.” While Landmark is certainly not bound by Lexington’s admissions in the litigation, Lexington’s admissions do provide extrinsic evidence of the parties’ intent as to the scope of coverage of the primary policy.

In short, we affirm the trial court’s conclusion that the Lexington policy was a blanket policy with a $2.5 million per-occurrence limit and no sublimits.

Improper Admission of Exhibit 98

Pin-Pon’s Exhibit 98 is the revised 2004 Hurricane Damage/Code Upgrade Insurance Claim which Pin-Pon submitted to Landmark and Lexington in support of its claim for code upgrade damages resulting from Hurricanes Frances and Jeanne. A representative of Pin-Pon complied the exhibit. Exhibit 98 is a compilation of over 20 documents.

The first part of Exhibit 98 is a cover executive summary prepared by Pin-Pon, addressing matters for which the insurers requested additional clarification. The next part of Exhibit 98 is a code upgrade analysis performed by Pin-Pon’s architect. The code upgrade analysis had. already been admitted into evidence without objection as Plaintiffs Exhibit 71. The code upgrade analysis sets forth the repairs required under the 2004 Florida Building Code, assuming that the property were put back to its pre-storm condition without any other modifications. However, Exhibit 71 did not set forth the total cost of the repairs.

The primary point of contention concerning the admissibility of Exhibit 98, however, was a costing analysis performed by Pin-Pon’s general contractor. The main document in Exhibit 98 regarding the cost of the code upgrades is a five-page spreadsheet, prepared by the contractor, titled “Cost for Code Upgrades Based on Tut Back’ to Pre-Strom Condition.” Apart from the contractor’s code upgrade cost spreadsheet, the remaining documents in Exhibit 98 consisted largely of subcontractor invoices, subcontractor proposals, and governmental permit documents.

Pin-Pon sought to admit Exhibit 98 through the testimony of the architect. The architect testified that in the normal course of business, he gives his report to a contractor or a cost consultant to obtain pricing for a project. He explained that the numbers he obtains from a contractor or cost consultant are reliable and that he depends upon them in the normal course of business. He further testified that Pin-Pon’s representative obtained the cost estimates from the contractor for the items in the code upgrade letter, as is normally done in the course of his business. He stated that he maintained a copy of this report in his records, it was part of his business practice “to maintain reports like this one” in his records, and that the numbers obtained were reliable within the industry. He admitted that all the documents in Exhibit 98, with the exception of one, were created by individuals outside his firm.

The trial court then questioned the architect as to how his firm acquired the documents. The architect explained that normally in the course of business, his firm would prepare drawings or “a scope of work” regarding the code upgrade. Those documents would be given to the contractor. The contractor would prepare the cost estimates and then those would be brought back to his firm for it to review. The architect testified that these documents were the type of records that his company would ordinarily maintain and that they were kept in the ordinary course of business. He elaborated that the reasons his firm kept the documents were because: (1) his firm was required by law to maintain all its records for seven years; and (2) his firm was responsible to the owner for the project, so he needed to be kept in the loop on costs and needed to keep the documents in the file for reference purposes.

The trial court ruled that Exhibit 98 was a business record, and admitted it into evidence over Landmark’s hearsay objection. Relying on Exhibit 98, the architect testified that the total pricing for the code upgrades came to $6,295,946.95.

On this issue, Landmark argues that the trial court erred by admitting Plaintiffs Exhibit 98 into evidence, claiming that Exhibit 98 was hearsay and was not admissible under the business records exception to the hearsay rule. Landmark contends that Pin-Pon, through its admitting witness, was unable to lay the necessary foundation for the admission of Exhibit 98. We agree.

Whether evidence is admissible under an exception to the hearsay rule is a question of law subject to de novo review. Browne v. State, 182 So.3d 312, 316 (Fla. 4th DCA 2014).

Florida’s business records exception to the hearsay rule is set forth in section 90.803(6)(a), Florida Statutes (2011). For a record to be admissible under the business records exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. Yisrael v. State, 993 So.2d 952, 956 (Fla.2008). However, the fact that a witness employed all the “magic words” of the exception does not necessarily mean that the document is admissible as a business record. Yang v. Sebastian Lakes Condo. Ass’n, 123 So.3d 617, 621-22 (Fla. 4th DCA 2013).

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. Cooper v. State, 45 So.3d 490, 492 (Fla. 4th DCA 2010). “The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation.” Twilegar v. State, 42 So.3d 177, 199 (Fla.2010) (quoting Forester v. Norman Roger, Jewell & Brooks Int'l, Inc., 610 So.2d 1369, 1373 (Fla. 1st DCA 1992)). Stated another way, “the witness just need be well enough acquainted with the activity to provide testimony.” Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014). “To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.” Brooks v. State, 918 So.2d 181, 193 (Fla.2005), receded from on other grounds by State v. Sturdivant, 94 So.3d 434 (Fla.2012).

Nonetheless, the fact that a document is incorporated into a business’s records does not automatically bring the document within the business records exception to the hearsay rule. See Nat’l Car Rental Sys., Inc. v. Holland, 269 So.2d 407, 413 (Fla. 4th DCA 1972). “Otherwise, every letter which plaintiffs employer received in connection with the operation of his business and which was subsequently retained as part of his business records ipso facto would be fully competent to prove the truth of its contents.” Id. Accordingly, in Holland, this court held that a Doctor’s Certificate, which certified that the plaintiff was qualified to drive a motor vehicle, was not admissible as a business record where “[n]o predicate or inquiry was made here beyond the witness stating that the certificate was part of his business records which he kept in the regular course of his business.” Id.

Here, Pin-Pon failed to show that all the records in Exhibit 98 were made by or from information transmitted by a person with knowledge. The architect could not testify as to when 25 of the 26 documents were made. And he had no information as to whether the person who made the documents had knowledge or received information from a person with knowledge. While it was not necessary for Pin-Pon to call the person who actually prepared the business records, we find that Pin-Pon did not establish that the architect was either in charge of the activity constituting the usual business practice or was well enough acquainted with the activity to give the testimony. Although the documents in Exhibit 98 might have qualified as the general contractor’s business records, the mere fact that these documents were incorporated into the architect’s file did not bring those documents within the business records exception. In short, Pin-Pon failed to lay the necessary foundation for the admission of Exhibit 98 as a business record.

We conclude that the error was not harmless. “To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” Special v. W. Boca Med. Ctr., - So.3d -, —, 39 Fla. L. Weekly S676, S678, 2014 WL 5856384, *4 (Fla. Nov. 13, 2014). Applying this standard, we find there is a reasonable possibility that the error contributed to the verdict. While a Pin-Pon representative testified without objection that the total code upgrade expenses were “upwards of $6 million,” Pin-Pon has failed to prove that the erroneous admission of Exhibit 98 did not contribute to the jury’s verdict.

Because the court allowed the jury to consider Exhibit 98 in determining the amount of code upgrade damages, we reverse and remand for a new trial as to code upgrade damages only.

Finally, we note that the trial court entered only one final judgment in this case. After the new trial on remand, the trial court should enter two separate judgments: one for the Frances action and one for the Jeanne action.

The Frances and Jeanne actions were separate lawsuits that were consolidated for purposes of trial. However, consolidation has no effect on the substantive rights of the parties in an individual case, and does not destroy the separate identities of the consolidated cases. See CDI Contractors, LLC v. Allbrite Elec. Contractors, Inc., 836 So.2d 1031, 1033 (Fla. 5th DCA 2002); see also Wagner v. Nova Univ., Inc., 397 So.2d 375, 377 (Fla. 4th DCA 1981). In a consolidated case, a party who has prevailed under a claim which entitles the party to attorney’s fees cannot have that right defeated by a larger award recovered by the opposing party on a separate claim. Shores Supply Co. v. Aetna Cas. & Sur. Co., 524 So.2d 722, 725 (Fla. 3d DCA 1988). In such a case, the trial court should issue two separate judgments. Id.

Here, depending upon the validity of Landmark’s proposal for settlement, Landmark might have a substantive right to attorney’s fees in the Jeanne action. Accordingly, the trial court should enter a separate judgment in each action, so as to preserve any potential substantive right to fees Landmark has in the Jeanne action.

Affirmed in part, Reversed in part, and Remanded.

GERBER, J., concurs.

GROSS, J., concurs in part and dissents in part.

GROSS, J.,

concurring in part, dissenting in part.

I concur in the majority’s conclusion a new trial is required on the issue of code upgrade damages.

I dissent from the majority’s construction of the insurance policy. My reading of the “Amount of Insurance” section of Endorsement # 2 is that it falls under section 2.c. of the “Occurrence Limit of Liability” provision of the policy. The limitations of the policy were $2,500,000 per occurrence and a total amount of coverage of $8,000,000 for the building, $2,000,000 for the contents, and $1,382,368 for business income.

      . Without further comment, we conclude that the trial court properly denied Landmark’s motion for partial directed verdict on code upgrade damages and that the trial court did not abuse its discretion in denying the motion for new trial as it pertains to additional building damages awarded as a result of Hurricane Frances. We also note that any other issues not specifically addressed in this opinion are either moot or without merit.

      . An aggregate limit of insurance defines an insurer’s total liability under a policy regardless of the number of claims and occurrences. Ins. Corp. of Am. v. Dillon, Hardamon & Cohen, 725 F.Supp. 1461, 1466-67 (N.D.Ind.1988). With limited exceptions, the Lexington policy contains per-occurrence limits of liability but does not contain aggregate limits of liability.

      . Even if the trial court improperly relied upon Lexington’s discovery responses in order to find the policy ambiguous, this court may affirm the trial court’s ultimate conclusion. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (if a trial court reaches the right result but for the wrong reason, an appellate court may uphold the ruling if there is any basis to support the judgment in the record).

      . The parties argue over whether the proposal for settlement was valid, but that issue should be addressed by the trial court in the first instance.


text:
    Alan FEUER, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN & FAMILIES, etc., Appellee.
    No. 3D14-1070.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.
    Alan Feuer, in proper person.
    Leslie Hinds St-Surin, Assistant Regional Counsel, for appellee.
    Before LAGOA, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

The only issue in this appeal is whether appellant, Alan L. Feuer, received an order entered by a hearing officer in connection with appellant’s request for a hearing regarding his claim' for benefits filed with the Florida Department of Children and Families (“DCF”). Appellant claims that he did not receive the subject notice and DCF correctly argues that appellant is presumed to have received the notice because it was mailed to him in conformity with the systematic business practice of the Office of Appeal Hearings. Although the presumption does apply, it is a rebutta-ble presumption, and appellant is entitled to an evidentiary hearing on the issue of whether he received notice of the issuance of the order. See Reich v. Dep’t of Health, 868 So.2d 1275 (Fla. 1st DCA 2004).

Reversed and remanded for further proceedings.


text:
    Milton McFARLANE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2701.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 2015.
    Milton McFarlane, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and SCALES, JJ.
   PER CURIAM.

This is an appeal from a February 6, 2014 order (and a September 22, 2014 order on rehearing) summarily denying Milton McFarlane’s motion under Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence (the “Order”). The Order denies the appellant’s rule 3.800 motion as successive and refers to two earlier motions filed by McFarlane to correct his sentence. While those earlier motions, and the orders denying them, might be in the “court file” as referenced in the Order, they are not attached to the Order and are not a part of the record on appeal.

When, as here, the trial court summarily denies a rule 3.800 motion, the record must show conclusively that the appellant is entitled to no relief; otherwise this Court must remand. Fla. R. App. P. 9.141(b)(2)(D).

If the trial court relies on a portion of the court file not contained in the postcon-viction record, it is incumbent upon the .trial court to make those portions of the court file part of the record. See Boyd v. State, 57 So.3d 268 (Fla. 5th DCA 2011).

If the trial court again enters an order summarily denying the postconviction motion, the trial court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: WARNER, J'.

text:
    Rosamie JOSEPH, Appellant, v. BAC HOME LOANS SERVICING, LP, Appellee.
    No. 4D12-4137.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Andrea H. Dueñas of Law Office of A. Dueñas, P.A., Lantana, and Brian K. Korte of Korte & Wortman, -P.A., West Palm Beach, for appellant.
    J. Randolph Liebler and Trida J. Duthi-ers of Liebler, Gonzalez & Portuondo, Miami, for appellee.
   WARNER, J'.

A homeowner appeals a final judgment of foreclosure, arguing that the note and mortgage holder failed to prove its standing to foreclose at the time of the filing of the complaint. We agree that the plaintiff produced no evidence to show that. it owned the note or mortgage on the date of the filing of -the complaint. We thus reverse.

The homeowner executed a note and mortgage to Key Mortgage Associates in 2008. On July 21, 2009, Taylor, Bean & Whitaker Mortgage Corporation filed its complaint for foreclosure and attached the mortgage, but no note or assignments. Taylor Bean claimed the note was lost or stolen and sought to establish its terms. It alleged, however, that it owned the note. Subsequently, Taylor Bean transferred the note and mortgage to BAC Home Loans Servicing, LP and BAC was substituted as the party plaintiff into the foreclosure suit. The homeowner filed an answer alleging a lack of standing to file the foreclosure complaint.

After BAC dropped the count to reestablish the lost note, the parties proceeded to trial where BAC produced the original note and mortgage which contained the name of Key Mortgage Associates as the lender. There were no assignments entered into evidence. The note in evidence contained two endorsements on the last page. The first stated “pay to the order of Taylor, Bean & Whitaker Mortgage Corp.” and was signed by Erica Carter-Shaw as attorney-in-fact for Key Mortgage Associates. The second was an endorsement in blank also signed by Erica Carter-Shaw as “E.V.P.” of Taylor Bean. Importantly, neither of the endorsements on the note was dated. BAC’s representative testified at trial that he had no knowledge when the endorsements were signed and placed on the note. At the close of the plaintiffs case, the homeowner moved for involuntary dismissal, contending that BAC had failed to prove the standing of Taylor Bean on the date the complaint was filed. The trial court denied the motion. After presentation of the defense, the court entered final judgment of foreclosure for BAC. From this judgment, the homeowner appeals.

A party must establish its standing to bring a mortgage foreclosure complaint by establishing an assignment or equitable transfer of the note and mortgage prior to instituting the complaint. McLean v. JP Morgan Chase Bank, 79 So.3d 170, 173 (Fla. 4th DCA 2012). Whether a party has standing to bring an action is a question of law to be reviewed de novo. Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So.3d 14, 16 (Fla. 4th DCA 2012).

The trial court erred in denying the motion for directed verdict, as BAC failed to prove that Taylor Bean had standing to bring the foreclosure proceeding on the date it filed the complaint. It did not present any evidence of when Taylor Bean came into possession of the note. In McLean, we pointed out that standing is determined at the time the lawsuit is filed. 79 So.3d at 173. We explained that if a note does not name the plaintiff as payee, then it must bear a special endorsement in favor of the plaintiff or a blank endorsement. Id. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or proof of ownership to show its status as a holder of the note. Id. Even where an assignment of mortgage occurs after suit is filed, the plaintiff may establish standing to foreclosure at the inception of the suit by showing that the endorsement of the note occurred prior to the inception of the suit. Id. at 174. If the note or allonge shows on its face that the endorsement occurred before the filing of the complaint, that is sufficient. Moreover, if the note and mortgage are assigned, an equitable transfer may have occurred so that standing may be conferred.

In this case, however, BAC offered no proof as to when Taylor Bean was assigned the note and mortgage. The endorsement on the note was undated, no assignments of mortgage were introduced, and the bank representative had no knowledge of when Taylor Bean acquired the note and mortgage. Although BAC argues that its predecessor, Taylor Bean, had standing under section 673.3011(2), Florida Statutes, to enforce a negotiable instrument, we disagree that it proved such standing. That section allows enforcement by a “nonholder in possession of the instrument who has the rights of a holder.” Even assuming Taylor Bean was a loan servicer (as opposed to an owner of the note, as it alleged in its complaint), BAC still failed to prove that Taylor Bean acquired possession of the note prior to the filing of the foreclosure complaint.

Without proof of standing, BAC failed to prove its entitlement to foreclose as of the date of the filing of the complaint. The trial court erred in failing to direct involuntary dismissal of the complaint at the close of BAC’s case. We reverse for the trial court to enter such a dismissal.

Reversed and remanded with directions to vacate the final judgment and enter a dismissal of the complaint.

TAYLOR and KLINGENSMITH, JJ., concur.

      . Actually, the attorney moved for directed verdict, but the proper name for a motion in a non-jury trial is a motion for involuntary dismissal. Fla. R. Civ. P. 1.420(b).