text:
    Daniel SCOTT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3843
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 17, 2017

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel Perrone, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAMBERT, J.

Daniel Scott appeals his convictions after trial for robbery with a firearm, fleeing or attempting to elude a law enforcement officer at high speed or with wanton disregard, and resisting an officer without violence. Scott raises three issues on appeal. We affirm without further discussion the second and third issues raised by Scott concerning whether fundamental error was committed by the trial court’s minor addition to a standard jury instruction and his claim of cumulative error. As to Scott’s first issue, we conclude that the trial court did not err in denying Scott’s motion for mistrial based on the State’s alleged discovery violation in failing to disclose to the defense its fingerprint expert’s oral statement revealed during rebuttal because, first, there was no discovery violation, and second; even if the State’s failure to disclose was a discovery violation, the record establishes that the violation was harmless. Accordingly, we affirm.

Background

Two employees at an AT & T store in Orlando, Florida, observed a black Kia Forte automobile twice come into the parking lot in front of the store and then leave. When the car appeared a third time, two men wearing black wigs, hats, sunglasses, and gloves exited the car and came into the store. One of the men was carrying a gun, and the two ordered the employees into a back room of the store and forced them to lay on their stomachs. The assailants then took cellphones, tablets, and over $2000 in cash from the store and fled. One of the employees immediately called 9-1-1 and described the getaway car. Soon thereafter, law enforcement engaged in a high speed pursuit of the vehicle before immobilizing it. The two suspects in the car fled in different directions but were quickly apprehended. These two men, Daniel Scott and Jajuan Bryant, were identified shortly thereafter by the AT & T employees, who also separately identified the vehicle, gun,- wigs, and sunglasses used in the robbery. Additionally, the law enforcement officers who chased the. two men after-they fled in.their car identified Scott as the driver of the getaway car and Bryant as the passenger. The items stolen from the AT & T store were found by the officers in trash bags located in the car.

A total of 123 latent fingerprints were obtained from the crime scene, car, and items found inside the car and were provided to the State’s fingerprint analyst, Marcó Palacio, to compare against Scott and Bryant’s known fingerprints. In his written report, Palacio confirmed that Scott’s fingerprints matched five of the prints taken from the. sunglasses and the trash bags and that eleven of the other 123 latent prints matched Bryant’s known fingerprints. Pertinent to this appeal, seventy-seven of these latent prints were not matched to anybody related to the investigation.

The trial in the case began on Monday, September 12, 2016. Well before trial, Scott’s co-defendant, Bryant, pleaded guilty to the same charges filed against Scott and was sentenced to prison. Scott listed Bryant as a potential trial witness, and on September 8, four days before trial, Scott’s counsel advised the State that he anticipated that Bryant would testify- that a different person, Lester Register, and not Scott, was Bryant’s accomplice in the robbery. As a result, the next day, the prosecutor asked her expert, Palacio, to compare Register’s known fingerprints against the aforementioned latent prints.

During the State’s case-in-chief, Palacio testified that Scott’s prints were found on the sunglasses and the trash bags found in the getaway- car. Just before noon on Wednesday, September 14, after the State had rested its case, Palacio told the prosecutor that he had examined twenty of the previously unmatchéd . latent. prints and that Register’s fingerprints did not match any of these twenty prints.

That afternoon, Scott called Bryant as his first witness. Bryant testified’ that Scott was his best friend arid that he had been at Bryant’s apartment the morning of the robbery. ■ Bryant stated that while at the apartment, Scott touched one of the pair of. sunglasses that were later worn during the robbery and that Scott also placed in Bryant’s car the trash bags from which- the items stolen from the AT & T store were later recovered by the police. Bryant further testified that he advised Scott that he was going to commit a robbery later that day and that Scott left the apartment not long thereafter.. Bryant then testified that Register committed the robbery with him and that they had each deliberately worn gloves during the robbery so as not to leave fingerprints. Scott called one other witness in his defense and then rested without testifying.

On rebuttal, the State first called Register, who denied committing the robbery or knowing Scott or Bryant. As its second and final rebuttal witness, the State recalled Palacio, , who testified that he compared the unidentified latent prints to Register’s known prints. At this point, Scott’s counsel objected and moved for a mistrial, arguing that the State committed a discovery violation by not previously disclosing the substance of Palacio’s rebuttal testimony that Palacio had compared the latent prints to Register’s prints. Outside the presence'of the jury, the court addressed the alleged discovery violation by holding what is commonly referred to as a Richardson hearing. After receiving further testimony from Palacio together with representations and argument from counsel concerning this disclosure, the court found that the. State committed a “technical” discovery violation, but that it was not willful and did not prejudice Scott. The court denied the motion for mistrial. Pala-cio thereafter testified to the jury that he was only able to examine twenty of the seventy-seven previously unidentified latent prints and that Register’s fingerprints did not match any of these twenty prints.

Analysis

On appeal, Scott contends that the State committed a significant discovery violation by failing to disclose Palacio’s analysis that Register’s fingerprints did not match any of the twenty latent prints that were re-examined just before trial and thus, the trial court erred in denying his motion for mistrial.

When a defendant claims that the State has violated the rules of discovery, the trial court must first determine whether there was a discovery violation. If a violation has occurred, then the court must determine whether the violation was willful or inadvertent, if the violation was trivial or substantial, and whether it “resulted in prejudice or harm to the defendant.”

Rojas v. State, 904 So.2d 598, 600 (Fla. 5th DCA 2005) (quoting Richardson, 246 So.2d at 775). Therefore, our first step is to determine whether the State’s failure to timely disclose Palacio’s oral statement was a discovery violation, which depends on whether the State was required to disclose the oral statement to Scott.

Florida Rule of Criminal Procedure 3.220(b)(1)(A) requires, in pertinent part, that the State provide to a defendant a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto. Rule 3.220(b)(1)(B) directs that the State must also provide to the defense the statement of any such person so named, including reports or statements of experts. See Fla. R. Crim. P. 3.220(b)(1)(J). These disclosure rules apply to witnesses and evidence that may be introduced during rebuttal. Lowery v. State, 610 So.2d 657, 659 (Fla. 1st DCA 1992). Lastly, although the State did previously list Palacio as a witness “and provide Palacio’s written analysis that Scott and Bryant's fingerprints were found among the 123 latent prints recovered by the crime scene investigators, the State has a continuing obligation under this rule to promptly disclose additional discoverable information to the defense. See Fla. R. Crim. P. 3.220(j).

The term “statement” as used in rule 3.220 is defined as “a written statement made by the person and signed or otherwise adopted , or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording.” Fla. R. Crim. P. 3.220(b)(1)(B). Here, Palacio did not prepare a written report as to his findings that Register’s prints did not match the twenty latent prints that he had re-examined just prior to trial nor was his oral statement contemporaneously recorded or summarized in any writing. In Watson v. State, 651 So.2d 1159 (Fla. 1994), the court, in construing the predecessor to rule 3.220(b)(1)(B), determined that the State’s withholding of an oral statement made by its expert witness was not a discovery violation because the statement was not discoverable. The court held that the reference in the rule to “ ‘statement’ is limited to written statements or contemporaneously recorded oral statements.” Watson, 651 So.2d at 1163-64. Later, in State v. McFadden, 50 So.3d 1131 (Fla. 2010), the court held that rule 3.220(b)(1)(B) did not require the State to disclose to a defendant an oral, unrecorded witness statement because “[o]n its face, the rule does not include unrecorded oral statements.” 50 So.3d at 1133. Our .court has also explained that the State is under no obligation to disclose information that it receives from a witness that is not a statement as defined by rule 3.220(b)(1)(B), provided that information is not “Brady” material or is not a material alteration to an existing written or recorded statement previously provided by the State to the defendant. Burkes v. State, 946 So.2d 34, 36-37 (Fla. 5th DCA 2006) (citing Scipio v. State, 928 So.2d 1138, 1143 (Fla. 2006)). Neither exception is applicable in this case. Thus, under McFadden and Watson, the prosecutor’s failure to disclose Palacio’s oral statement that there was no match between Register’s prints and the twenty latent prints was not a discovery violation.

We further conclude that even if the State’s nondisclosure was a discovery violation, the trial court did not abuse its discretion in finding that Scott was not prejudiced. A trial court’s decision on whether a discovery violation was willful or inadvertent, trivial or substantial, and whether it resulted in prejudice or harm to the defendant is reviewed under the abuse of discretion standard. Cox v. State, 819 So.2d 705, 712 (Fla. 2002) (citing State v. Tascarella, 580 So.2d 154, 157 (Fla. 1991)). The prejudice inquiry that the trial court must resolve at a Richardson hearing is “whether there is a reasonable possibility that the discovery violation ‘materially hindered the defendant’s trial preparation or strategy.’ ” Scipio, 928 So.2d at 1150 (quoting State v. Schopp, 653 So.2d 1016, 1020 (Fla. 1995)). However, a discovery violation may be considered harmless if an appellate court can determine, beyond a reasonable doubt, that the defense was not procedurally prejudiced by the violation. Casica v. State, 24 So.3d 1236, 1240 (Fla. 4th DCA 2009) (citing Scipio, 928 So.2d at 1150). “The burden is on the State to demonstrate the lack of procedural prejudice to the [defendant].” Goldsmith v. State, 182 So.3d 824, 828 (Fla. 4th DCA 2016) (citing Brown v. State, 165 So.3d 726, 729-30 (Fla. 4th DCA 2015)).

Scott’s trial strategy was to argue that a third person, Register, committed the robbery with Bryant. Palacio’s testimony in rebuttal that he did not find Register’s prints contained in the twenty latent prints that he examined did not affect Scott’s strategy or trial preparation. First, Bryant and, for that matter, the two AT & T employees, testified that both assailants wore gloves during the robbery, with Bryant specifically testifying that the reason for wearing the gloves was to not leave fingerprints. Palacio’s rebuttal testimony that Register’s fingerprints were not matched to the twenty latent prints that he examined just before trial was not inconsistent with Bryant’s testimony, nor did it affect Scott’s “third person” defense. Second, Bryant’s testimony was necessary to explain that Scott’s fingerprints on the sunglasses and garbage bags found in the getaway car were innocently placed there by Scott at Bryant’s apartment well before the robbery. Third, even after Palacio’s examination of the twenty latent prints, there still remained a substantial number of unmatched and otherwise unidentified latent prints to allow Scott’s third-party theory defense to be asserted. See Consalvo v. State, 697 So.2d 805, 813 (Fla. 1996) (holding that even if the State committed a discovery violation by disclosing to defense counsel during trial the additional results of the fingerprint expert’s analysis performed one day before trial, the trial court did not err in concluding that the defense was not prejudiced as there still remained a substantial number of unidentified prints even after the analysis so that the third-party theory could still be asserted).

Accordingly, because we conclude that no discovery violation was committed by the State, but that even if there was a discovery violation, it was harmless, we affirm Scott’s convictions.

AFFIRMED.

COHEN, C.J., and ORFINGER, J., concur.

      . The testimony from this witness is not germane to any issue raised on appeal.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the State must disclose material information within the State’s possession or control that tends to negate the guilt of the defendant). Palacio's findings that Register’s fingerprints did not match the twenty latent prints did not tend to negate Scott’s guilt.

      . In State v. Evans, 770 So.2d 1174, 1180 (Fla. 2000), the Florida Supreme Court recognized a limited exception to this rule, holding that disclosure is required when "the oral statement materially alters a prior written or recorded statement previously provided by the State to the defendant.” This exception is not applicable here because Palacio’s oral statement that Register’s prints did not match the twenty latent prints re-examined just before trial did not alter Palacio’s earlier written statement regarding Scott and Bryant’s fingerprints.

      . The State also argues on appeal that while the prosecutor did not immediately disclose to defense counsel the results of Palacio’s comparison of Register’s fingerprints to the unidentified latent prints, she advised the court during the Richardson hearing that she had disclosed the results to defense counsel during Scott’s presentation of his defense and specifically did so prior to Scott deciding whether to exercise his right to testify. Thus, the State essentially contends that Scott waived his argument that a discovery violation occurred by not timely raising it. During the hearing, Scott's trial counsel advised the trial court that he had been told by the prosecutor “that [Palacio] was going to be talking about comparison of Lester Register, that’s it. That’s not disclosure.” The trial court expressed some skepticism with counsel’s position but made no distinct factual finding as to whether Scott's counsel was aware of Pala-cio’s findings regarding the lack of Register’s fingerprints prior to Palacio being called as a rebuttal witness. If defense counsel had been aware of the substance of Palacio’s rebuttal testimony, then counsel should have raised the alleged discovery violation prior to Pala-cio’s testimony and secured a ruling from the court on whether to preclude Palacio from testifying in rebuttal. A discovery violation can be waived if not timely raised. See Guzman v. State, 42 So.3d 941, 944 (Fla. 4th DCA 2010). However, in light of our decision today, we find it unnecessary to address the merits of this argument.


source: Caselaw Access Project

author: LaROSE, Chief Judge.

license: Public Domain

text:
    Baltazar SALAZAR and Walter Salazar Pest Control, Appellants, v. HOMETEAM PEST DEFENSE, INC., f/k/a Rollins HT, Inc., Appellees.
    Case No. 2D16-4123
    District Court of Appeal of Florida, Second District.
    Opinion filed November 17, 2017.

      'Brooke A. Bach and Jonathan É, Pollard of Pollard, PLLC, Fort Lauderdale, for Appellants. .
    Simona V. Popova and Mark E. Grimes of Golden & Grimes LLP, Miami, for Ap-pellee. ....
   LaROSE, Chief Judge.

Baltazar Salazar, a former pest control technician with Hometeam Pest Defense, Inc., appeals the trial court’s nonfinal order granting Hometeam’s'motion for temporary injunction. We have jurisdiction. See Flá. R. App. P. 9.130(a)(3)(B). We reverse and remand for the trial court to enter an order consistent with the requirements of Florida Rule of Civil Procedure l,610i

Background Facts

Mr. Salazar began working for Home-team in late 2009 pursuant to a written employment agreement that contained a noncompete provision. Among - other things, this restrictive covenant prohibited Mr. Salazar from directly-or indirectly contacting or soliciting Hometeam customers following the end of his employment with Hometeam. The restrictive covenant also prevented Mr. Salazar from engaging in “pest control, exterminating, fumigating, or termite control business, in any capacity” within five specified Florida counties.

Hometeam fired Mr. Salazar in 2014. Later, after learning that Mr. Salazar had formed a competing pest control company, Hometeam sued Mr, Salazar in late 2015 seeking temporary and permanent injunc-tive relief.

In June 2016, the trial court conducted an evidentiary hearing on Hometeam’s motion for a temporary injunction. Hometeam offered the testimony of its general manager, and a private investigator. In his defense, Mr. Salazar testified, as did the owner of a home watch company who had referred prospective pest control clients to Mr. Salazar. At the conclusion of the hearing, the trial court made no oral findings of fact or rulings. Instead, the trial court invited the parties to submit proposed orders.

The trial court entered an order granting Hometeam’s motion, finding that Mr. Salazar .was in violation of the noncompete provision of the employment agreement. The order largely adopted ■■Hometeam’s proposed order.

Analysis

“A trial court’s ruling on a motion for a temporary injunction is clothed with a presumption of correctness, subject to reversal only for an abuse of discretion.” Orkin Extermination Co. v. Tfank, 766 So.2d 318, 319 (Fla. 4th DCA 2000). However, a temporary injunction ^‘should be granted only sparingly and only after the moving party has alleged and proved facts entitling it to . relief.” Morgan v. Herff Jones, Inc., 883 So.2d 309, 313 (Fla. 2d DCA 2004).

Mr. Salazar raises a number of claims attacking the order béfore us. Because the order is deficient on its face, we do not address the merits of his contentions.

The order recites no factual findings. The single sentence assessing whether an injunction should issue, states only that “[t]he court finds [Mr. Salazar] to be in violation of the enforceable restrictive covenant not to complete [sic] set forth in his ... Employment Agreement.”

“The issuance of a temporary injunction remains an extraordinary remedy, granted sparingly.” Charlotte County v. Grant Med. Transp., Inc., 68 So.3d 920, 922 (Fla. 2d DCA 2011) (citing Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002)); Allied Universal Corp. v. Given, 223 So.3d 1040, 1042 (Fla. 3d DCA 2017) (“A temporary injunction is an extraordinary and drastic remedy which should be sparingly granted.” (quoting Cordis Corp. v. Prooslin, 482 So.2d 486, 489 (Fla. 3d DCA 1986))). Nevertheless, the legislature has instructed us to “construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement.” § 542.335(l)(h), Fla. Stat. (2009).

Despite the legislature’s directive, “[a] temporary injunction requires strict compliance with Florida Rule of Civil Procedure 1.610.” Coscia v. Old Fla. Plantation, Ltd., 828 So.2d 488, 490 (Fla. 2d DCA 2002). Rule 1.610(c) specifies that “[e]very injunction shall specify the reasons for entry." The issuance of a temporary injunction requires the movant to plead • and prove the following elements: “(1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest support the entry of the injunction.” Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666, 666 (Fla. 2d DCA 2005); see also Polk County v. Mitchell, 931 So.2d 922, 926 (Fla. 2d DCA 2006).

“[T]he trial court’s order must contain ‘[c]lear, definite, and unequivocally sufficient factual findings [to] support each of the four conclusions necessary to justify entry of a preliminary injunction.’ ” Liberty Fin. Mortg. Corp. v. Clampitt, 667 So.2d 880, 881 (Fla. 2d DCA 1996) (quoting City of Jacksonville v. Naegele Outdoor Advert. Co., 634 So.2d 750, 754 (Fla. 1st DCA 1994) (alterations in original) (Naegele I), approved, 659 So.2d 1046 (Fla. 1995) (Naegele II)); see also Masters Freight, Inc., 915 So.2d at 666-67 (“[T]he findings supporting the four elements must be clear, definite, and unequivocal.” (citing Snibbe v. Napoleonic Soc’y of Am., Inc., 682 So.2d 568, 570 (Fla. 2d DCA 1996), disapproved on other grounds by Kitroser v. Hurt, 85 So.3d 1084, 1089-90 (Fla. 2012))). To allow meaningful appellate .review, “an order granting a temporary injunction must contain- more than conclusory legal aphorisms” and “do more than parrot each tine of, the four-prong test.” Naegele II, 659 So.2d at 1048 (quoting Naegele I, 634 So.2d at 753-54).

“This court has long held that [rule 1.610(c) ] requires the injunction to include specific findings regarding the likelihood of irreparable harm, unavailability of an adequate remedy at law, substantial likelihood of success on the merits, and considerations of public policy.” McCue v. Heritage Farms Prop. Ass’n, 141 So.3d 672, 673-74 (Fla. 2d DCA 2014) (reversing and remanding for further proceedings because “the order does not ‘specify the reasons for entry,’ as required by Florida Rule of Civil Procedure 1.610(c)”); see, e.g., Williams v. Victim Justice, P.C., 198 So.3d 822, 826 (Fla. 2d DCA 2016) (reversing and remanding for further’ proceedings where the trial court’s order failed to “recite sufficient factual findings to show us that appellees satisfied each element needed for entry of a temporary injunction”); Dowdy v. Dowdy, 182 So.3d 807, 809 (Fla. 2d DCA 2016) (“Here, the circuit court’s order contained no factual findings or legal analysis, and it is vulnerable to reversal for that reason alone.”); Cadicamo v. Alite, 4 So.3d 699, 700 (Fla. 2d DCA 2009) (reversing and remanding for further proceedings because the injunction order failed to make any factual findings to support essential elements of test for injunctive relief); Randolph v. Antioch Farms Feed & Grain Corp., 903 So.2d 384, 385 (Fla. 2d DCA 2005) (“Of primary importance is the trial court’s obligation to state sufficient factual findings in support of each element entitling a party to' a temporary injunction.... The single error of failing to provide sufficient findings requires us to reverse and remand for further proceedings.”) (citations omitted); Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997) (reversing temporary injunction that failed to include the required specific findings).

Hometeam urges us to affirm the injunction order because the trial court conducted a “lengthy” “one-and-a-half hour evidentiary hearing with live witness testimony.” Furthermore, Hometeam contends, “the trial court’s order was based on substantial record evidence,” seemingly referring to the entire trial court record.

Be that as it may, the trial court’s order is devoid of any findings of fact. The trial court must make these findings. See Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) (“A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.”); Douglass v. Buford, 9 So.3d 636, 637 (Fla. 1st DCA 2009); cf. Stephens v. State, 748 So.2d 1028, 1034 (Fla. 1999) (We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.”). Correspondingly, we “cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.” Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009). Accordingly, we do not, as Home-team describes it, “consider the trial court’s order deficient based on, what is essentially a technicality.”

In remanding for further proceedings, we note that Mr. Salazar raised two affirmative defenses—illegality and laches. The trial court’s order makes no mention of these, nor does the record reflect that the trial court considered and disposed of them. This was error. Cf. Bradley v. Health Coal., Inc., 687 So.2d 329, 334 (Fla. 3d DCA 1997) (reversing temporary injunction and remanding for consideration of former employee’s affirmative defense of prior breach, which pertained to employer’s burden of showing likelihood of success on the merits of the affirmative defenses as well as its prima facie case). On remand, the trial court must consider Mr. Salazar’s affirmative defenses to Hom-eteam’s motion for temporary injunction.

Reversed and remanded.

CRENSHAW, J., and LENDERMAN, JOHN C., ASSOCIATE SENIOR JUDGE, Concur.


author: PER CURIAM.

text:
    Rekala MORRISON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-909
    District Court of Appeal of Florida, Second District.
    Opinion filed November 22, 2017
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Reka-la Morrison’s judgments and sentences and the revocation of her probation. However, the order of revocation of probation entered on February 21, 2017, nunc pro tunc to February 16, 2017, does not identify the conditions found to be violated. We remand solely for entry of a corrected revocation order specifying the conditions of probation that Ms. Morrison violated. See Huggins v. State, 216 So.3d 785, 785 (Fla. 2d DCA 2017); Greene v. State, 919 So.2d 684, 685 (Fla. 2d DCA 2006) (“A proper order of revocation will identify the specific conditions of probation violated by the defendant.” (citing Greer v. State, 831 So.2d 1261, 1262 (Fla. 2d DCA 2002))).

Affirmed; remanded with directions.

KELLY, CRENSHAW, and MORRIS, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: YILLANTI, Judge.

text:
    Marisela PERERA, Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    Case No. 2D17-361
    District Court of Appeal of Florida, Second District.
    Opinion filed November 22, 2017
    Brian D. Keisacker of Rahdert Law, PLLC, St. Petersburg, for Appellant.
    Nancy M. Wallace and Ryan D. O’Con-nor of Akerman, LLP, Tallahassee; and William P. Heller of Akerman, LLP, Fort Lauderdale, for Appellee.
   YILLANTI, Judge.

Marisela Perera appeals the final judgment of foreclosure entered in favor of Nationstar Mortgage, LLC, contending that Nationstar failed to prove at trial that its predecessor-in-interest had standing to bring the foreclosure action when it filed the initial complaint. Because Nationstar’s appellate counsel has correctly and commendably conceded error, we find no need to address the standing issue further. Accordingly, we reverse the final judgment of foreclosure and remand for entry of an involuntary dismissal.

Reversed and remanded for dismissal.

LaROSE, C.J., and LUCAS, J., Concur.

      . Appellate counsel was not trial counsel below.


text:
    Scott SHIMER, Appellant/Cross-Appellee, v. Elizabeth COREY, Appellee/Cross-Appellant.
    Case No. 2D15-3485
    District Court of Appeal of Florida, Second District.
    Opinion filed November 22, 2017
    Mark S. Howard of Mark S. Howard, P.A., Tampa; and Laura H. Howard of The Solomon-Law Group, P.A., Tampa, for Appellant/Cross-Appellee,
    Allison M. Perry of -Florida Appeals & Mediations, P.A,' ■ Tampa, for Appellee/ Cross-Appellant.
   LaROSE, Chief Judge.

Scott Shimer, the former husband, appeals an amended final judgment of dissolution of marriage. Elizabeth-'Corey, the former wife, cross-appeals. We have jurisdiction. See Fla. R. App, P. 9.030(b)(1)(A).

We affirm on all issues that Mr, Shimer asserts. We affirm- on all but one issue advanced by Ms. Corey. We reverse on Ms. Corey’s third issue. Ms. Corey argues, and -Mr. Shimer concedes, that- the trial court erred in requiring- Ms. Corey to maintain a life insurance policy to secure her alimony obligation to Mr. Shimer.

Section 61.08(3), Florida Statutes (2015), authorizes the trial .court to “order any party who is ordered to pay alimony to purchase or- maintain a life insurance policy” to the extent necessary to. protect an award of alimony. “[I]n determining whether to secure support awards, the trial court should consider the need for such insurance, the cost and availability of such insurance, and the financial impact upon the obligor.” Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005). “In the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purposes of securing Alimony obligations.” Pinion v. Pinion, 818 So.2d 557, 557 (Fla. 2d DCA 2002).

The trial court failed to make any required findings to support its order that Ms. Corey maintain a life insurance policy to secure her alimony obligation. See Sikora v. Sikora, 173 So.3d 1028, 1034 (Fla. 2d DCA 2015) (“[B]ecause the trial court failed to include the required findings, we reverse the life insurance requirement and remand for further proceedings”). Moreover, our independent review of the record does not support the imposition of this obligation. See Solomon v. Solomon, 861 So.2d 1218, 1221 (Fla. 2d DCA 2003) (“The trial court made no findings that would demonstrate that there was a need to secure the former wife’s alimony, nor does the record demonstrate that such a need exists in this case.”); Ruberg v. Ruberg, 858 So.2d 1147, 1156 (Fla. 2d DCA 2003) (directing the trial court to strike the portion of the final judgment of dissolution obligating husband to maintain a life insurance policy where “the instant record contains nothing to establish that the $1,000,000 life insurance policy was ‘necessary to protect [the alimony award]’”). Therefore, we reverse and remand for the trial court to strike this provision.

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

KHOUZAM and BADALAMENTI, JJ., Concur.


author: LAGOA, J.

text:
    Juan ALVAREZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-1963
    District Court of Appeal of Florida, Third District.
    Opinion filed November 22, 2017
    Juan Alvarez, in proper person.

      Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for respondent.
    Before LAGOA, SCALES, and LUCK, JJ.
   LAGOA, J.

The Petitioner, Juan Alvarez (“Alvarez”), seeks a belated petition pursuant to Florida Rule of Appellate Procedure 9.141(c). Because the petition requires a determination of a disputed fact, we appoint a commissioner to hold an eviden-tiary hearing and determine the limited, disputed issue of fact that remains. The petition shall be held in abeyance for a period of sixty (60) day from the date of this order.

On February 1, 2017, the State filed a Notice of State’s Intention to Seek Enhanced Penalty Pursuant to F.S. 775.084, stating that Alvarez qualified for an enhanced penalty as a habitual felony offender, and a Notice of Defendant’s Qualifications as a Prison Releasee Reoffender and Required Sentencing Term Pursuant to F.S. 775.082. On February 10, 2017, Alvarez pled guilty to robbery while armed with a firearm or deadly weapon, and to resisting an officer without violence, and on February 21, 2017, the trial court sentenced Alvarez to five years in prison, followed by five years on probation.

On August 28, 2017, Alvarez filed a petition for writ of habeas corpus with this Court seeking a belated appeal. In his petition, Alvarez alleges that on the day he entered his plea, he requested his counsel to file a direct appeal regarding the plea proceedings. Alvarez further asserts that his counsel informed him that no appeal was available, that he could not appeal anything regarding the plea proceedings, and that he absolutely waived everything regarding an appeal, including his judgment and sentence, when he entered the plea.

The petition further asserts that “on or about June 2017,” Alvarez asked a family friend to check the docket to see if an appeal was filed in his case, and he subsequently learned that an appeal had been not been filed.

Alvarez proceeded to file the instant petition, and this Court ordered the State to respond. In its Appendix to its Response, the State included the following email from Alvarez’s former counsel, which disputes Alvarez’s assertion that he requested that counsel file an appeal:

I was never requested to file an appeal as I would have done so and would have notified the Public Defender’s Office. In fact, Mr. Alvarez entered a plea of guilty after instructing me to negotiate a plea agreement for one count of first-degree armed robbery with a firearm, punishable by life (PBL) for five years state prison, with a minimum mandatory of three years, as habitual offender, followed by five years of reporting probation, with early termination after two and half years, consecutive to the federal sentence, with all credit for time served of 867 days, with time served for the 1st degree misdemeanor of resisting an officer without violence to .this person. In fact, Mr. Alvarez as a prison releassee re-offender (PURR), was facing life which was waived as well as the 10 year minimum mandatory sentence which he was facing for the use of the firearm in the commission of the felony. In fact, after the plea, Mr. Alvarez could have appealed an illegal sentence but I was never requested to file any such appeal. Please let me know what is the basis for the appeal as I was never requested to appeal or discussed any grounds for the appeal with Mr. Alvarez or anyone on his behalf.

In State v. Trowell, 739 So.2d 77, 81 (Fla. 1999), the Florida Supreme Court held that “[i]f the State raises a good faith basis to dispute the defendant’s claims through affidavit or specific contrary allegations, the appellate court may order an evidentiary hearing in the trial court to determine the limited disputed issues of fact.”

Because the State has raised a good faith basis to dispute Alvarez’s claim that he instructed his counsel to file an appeal, we order the appointment of a special commissioner, Judge Jose L. Fernandez (the trial court judge below), to hold an eviden-tiary hearing to resolve this limited, factual dispute. See, e.g., Brownlee v. State, 223 So.3d 1064, 1065 (Fla. 3d DCA 2017); Duggins v. State, 921 So.2d 775, 776 (Fla. 3d DCA 2006).

In order to allow Judge Fernandez the opportunity to conduct an evidentiary hearing, make the required determination, and transmit an order to this court of the determination, this petition shall be held in abeyance for a period of sixty (60) days. See Parrish v. State, 201 So.3d 145, 146 (Fla. 3d DCA 2016).

Commissioner appointed; petition held in abeyance.

      . Florida Rule of Appellate Procedure 9.141(c)(4)(F)(i) provides that a petition seeking a belated appeal "must state whether the petitioner requested counsel to proceed with the appeal and the date of any such request, or if the petitioner was misadvised as to the availability of appellate review or the status of filing a notice of appeal.” We find that Alvarez’s petition is facially sufficient, as it alleges these facts.


text:
    Eric Brachian GREGORY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3164
    District Court of Appeal of Florida, First District.
    Opinion filed November 27, 2017.
    Eric Brachian Gregory, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is dismissed as untimely filed. See Fla. R. App. P. 9.141(d)(5).

LEWIS, BILBREY, and M.K. THOMAS, JJ., CONCUR.


author: BILBREY, J.

text:
    Joey ATWATER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4968
    District Court of Appeal of Florida, First District.
    Opinion filed November 30, 2017

      Joey Atwater, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   BILBREY, J.

The Appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, For the reasons discussed below, we reverse and remand the denial, in part, of ground four of the Appellant’s motion. We affirm the denial of the Appellant’s remaining claims.

The Appellant was convicted of attempted murder. At trial he alleged that he acted in self-defense, A witness for the State allegedly testified that the Appellant and the victim had been in an argument earlier in the night, and that thé Appellant had put his hand in his pocket and said “I’m going to use this tonight,” after which she heard gunshots. In ground four, the Appellant alleged that counsel was ineffective for failing to impeach that witness with the fact that she admitted to being high on crack cocaine at the time of the shooting. There are no attachments in the record conclusively refuting the Appellant’s claim regarding counsel’s failure to impeach the witness, or proving that the Appellant was not prejudiced. See Ortiz v. State, 968 So.2d 681 (Fla. 1st DCA 2007) (holding that if a defendant’s postconviction claims are legally sufficient, the trial court must attach portions of the record that conclusively refute the claims). The State concedes error on this point and we accept the concession, Thus, we reverse and remand for the trial court to hold an evidentiaryheariiig or to attach portions of the record that conclusively refute the claim. We affirm the denial of the remaining claims raised in the motion.

AFFIRMED in part, REVERSED and REMANDED in part, for further proceed-m§s>

■ WINSOR and M.K. THOMAS, JJ., CONCUR.

      . In ground four the Appellant also alleged that counsel was ineffective for failing to impeach another witness. We affirm the denial of ground four to the extent he challenged counsel's failure to impeach the other witness.


text:
    Heriberto FELICIANO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1388
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    •Heriberto' Feliciano, Wewahitchka, pro se.. •
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Heriberto Feliciano (“Defendant”) appeals an order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, We affirm as to all issues except for claim three. In this claim, Defendant alleg-. es that his counsel was ineffective for failing to advise him properly regarding his right to testify. As to claim three, we reverse and remand for the trial court to hold an evidentiary hearing or to attach records conclusively refuting Defendant’s allegation.

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, TORPY and EVANDER, JJ„ concur.


text:
    Donald CHASE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3237
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

> We remand for the trial court to correct a scrivener’s error in Count II of the written sentence to reflect the imposition of a twenty-five-year minimum mandatory sentence consistent with the court’s oral pronouncement. We otherwise affirm. •.

REVERSED in part; AFFIRMED in part; and REMANDED.

COHEN, C.J., EDWARDS and EISNAUGLE, JJ., concur.


text:
    Harrell Baer GARNER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2177
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Harrell Baer Garner, Lawtey, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D.. Tatman, • Assistant Attorney General, Daytona Beach, for Respondent, ■ ■ •
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the September 13, 2016, judgments and sentences' in Case Nos. 14-CF-001384-A and 14-CF-001385-A, in ,the Circuit Court in and for Putnam County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., ORFINGER and TORPY, JJ., concur.


text:
    Mark WARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-677
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Mark Ward, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel Perrone, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Mark Ward appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds One, Two, Three, Four, Five, Six, and Eight. However, because the record does not conclusively refute Ward’s claim that counsel was ineffective for misadvising him that if he decided to testify in his own defense the State could inquire into the specific nature of his prior convictions, we reverse the summary denial of Ground Seven and remand for attachment of portions of the record conclusively refuting that claim or for an evidentiary hearing. Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996))); see also Joseph v. State, 214 So.3d 741, 742 (Fla. 5th DCA 2017) (reversing summary denial where trial court did not attach records conclusively refuting Joseph’s claim that his attorney affirmatively misadvised him not to testify because nature of his prior offenses, rather than number, would be made known to jury).

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, TORPY and BERGER, JJ., concur.


text:
    Micah DAVIDSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1604
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Micah Davidson, Wewahitchka, pro se.

      Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vineent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the September 16, 2016, order on pro se motion to withdraw plea upon remand, filed in Case Nos. 2011-CF-1958, 2011-CF-1959, 2011-CF-1960, and 2014-CF-103021, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, BERGER, and WALLIS, JJ., concur.


text:
    Kyree JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1462
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R. Grim. P. 3.704(d)(14) (expressly providing that “pri- or record” on criminal punishment code scoresheet includes convictions for offenses committed by the offender as a juvenile); Mendoza-Magadan v. State, 217 So.3d 112, 113 (Fla. 4th DCA 2017) (rejecting defendant’s argument that his prior juvenile dispositions rendered without a jury trial should not be included on his score-sheet when calculating the lowest permissible prison sentence); Nichols v. State, 910 So.2d 863, 865 (Fla. 1st DCA 2005) (holding that a defendant’s “prior juvenile dispositions are valid as prior criminal convictions because Florida’s juvenile procedures are constitutionally sound”) (citing N.C. v. Anderson, 882 So.2d 990 (Fla. 2004))).

COHEN, C.J., LAMBERT and EISNAUGLE, JJ., concur.


text:
    Matthew POMIANOWSKI, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2712
    District Court of Appeal of Florida, Second District.
    Opinion filed December 1, 2017.

      William C. Anderson, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee. ...
   PER CURIAM.

Affirmed.

NORTHCUTT, CASANUEVA, and BLACK, JJ., Concur.


text:
    Charles C. SANMANN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4335
    District Court of Appeal of Florida, First District.
    Opinion filed December 5, 2017
    Charles C. Sanmann, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WETHERELL, RAY, and WINOKUR, JJ., CONCUR.


text:
    Brantley YALE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1051
    District Court of Appeal of Florida, First District.
    Opinion filed December 5, 2017
    Andy Thomas, Public Defender, Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Amanda D. Stokes and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Cloninger v. State, 846 So.2d 1192, 1193 (Fla. 4th DCA 2003).

WOLF, WINOKUR, and JAY, JJ., CONCUR.


text:
    Immanuel WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4122
    District Court of Appeal of Florida, First District.
    Opinion filed December 5, 2017

      Immanuel Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R. App. P. 9.141(d)(6); 9.141(d)(6)(C).

WETHERELL, RAY, and WINOKUR, JJ., CONCUR.


text:
    Justin A. MARTINEZ, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4872
    District Court of Appeal of Florida, First District.
    Opinion filed December 5, 2017
    Justin A. Martinez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WETHERELL, RAY, and WINOKUR, JJ., CONCUR.


text:
    Robert B. EVELEIGH, as Trustee of the William Carl Eveleigh Trust u/w Anna M. Eveleigh, Margaret M. Eveleigh and Carl B. Eveleigh, as nominated successor trustees of the William Carl Eveleigh Trust u/w Anna M. Eveleigh, Appellants, v. William C. EVELEIGH, Elizabeth Anna Eveleigh, and Jennifer M. Eveleigh, Appellees.
    CASE NO. 1D16-5167
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017.
    Edmond E. Koester, Alex R. Figares, and Caroline Marisa Magliolo of Coleman, Yavanovich & Koester, P.A., Naples, and Louis D. D’Agostino and Maria Vigilante of Cheffy Passidomo, P.A., Naples, for Appellants.
    Jack J. Aiello,-John P. Cole, Jason P. Van Lenten, and Lauren V. Purdy of Gun-ster, Yoakley & Stewart,’ P.A.,- West Palm Beach, and Robert Goldman and Jon Scu-deri of Goldman Felcoski & Stone, P.A., Naples, and for Appellees.
   PER CURIAM.

Appellees’ amended motion to dismiss is granted. This appeal is hereby dismissed for lack of jurisdiction.

RAY, WINOKUR, and JAY, JJ., CONCUR.


text:
    Robert B. EVELEIGH, Margaret M. Eveleigh, and Carl B. Eveleigh, as named trustees of the William C. Eveleigh Family Trust, Appellants, v. William C. EVELEIGH, Appellee.
    CASE NO. 1D16-5165
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017
    Edmond E. Koester, Alex R. Figares, and Caroline Marisa Magliolo of Coleman, Yavanovich & Koester, P.A., Naples, and Louis D. D’Agostino and Maria Vigilante of Cheffy Passidomo, P.A., Naples, for Appellants.
    Jack J. Aiello, John P. Cole, Jason P. Van Lenten, and Lauren V. Purdy of Gun-ster, Yoakley & Stewart, P.A., West Palm Beach, and Robert Goldman and Jon Scu-deri of Goldman Felcoski & Stone, P.A., Naples, and for Appellee.
   PER CURIAM.

Appellee’s amended motion to dismiss is granted. This appeal is hereby dismissed for lack of jurisdiction.

RAY, WINOKUR, and JAY, JJ., CONCUR.


text:
    NATURE’S WAY NURSERY OF MIAMI, INC., Petitioner, v. FLORIDA DEPARTMENT OF HEALTH, OFFICE OF MEDICAL MARIJUANA USE, Respondent.
    CASE NO. 1D17-4770
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017
    Angela D. Miles and Donna Blanton of the Radey Law Firm, Tallahassee, for Petitioner.
    Eduardo S. Lombard, W. Robert Vezina, III, and Megan S. Reynolds of Vezina, Lawrence & Piscitelli, P.A., Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS and M.K. THOMAS, JJ., CONCUR. WOLF, J., DISSENTS WITHOUT OPINION.


text:
    Michael PREVATT, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2734
    District Court of Appeal of Florida, First District.
    Opinion filed December 7, 2017

      Elizabeth J. Johnson of Halscott Mega-ro, P.A., Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner entered a no contest plea to the charges of aggravated battery with great bodily harm and tampering with a witness. After sentencing, Petitioner attempted to withdraw his plea but his motion was denied. Petitioner alleges he requested his prior attorney to file a notice of appeal sometime before December 25, 2016. The deadline to file a notice of appeal was December 21, 2016. Because Petitioner’s undisputed allegation does not establish that he requested counsel to file a notice of appeal before the deadline, the petition for belated appeal is denied on the merits.

RAY, BILBREY, and WINSOR, JJ., CONCUR.


text:
    GREEN TREE SERVICING, LLC n/k/a Ditech Financial, LLC, Appellant, v. David G. ATCHISON, Harbour/Ponce Holdings, LLC, Debbie Kay Hudson, Links South at Harbour Village Condominium Association, Inc., et al., Appellees.
    Case No. 5D17-226
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 8, 2017
    Preston Davis, of Padgett Law Group, Tallahassee, for Appellant.
    Daniel J. Webster, of Daniel J. Webster, P.A., Daytona Beach, for Appellees, Har-bour/Ponce Holdings, LLC, Palm View of Ponce Inlet, LLC, The Links South at Harbour Village Condominium Association, Inc. and Harbour Village Golf & Yacht Club Community Services Association, Inc. No Appearance for other Appellees.
   PER CURIAM.

Appellant challenges the final judgment dismissing its mortgage foreclosure action with prejudice after trial. Appellant argues that two erroneous evidentiary rulings made by the trial court excluding certain evidence at trial requires that we reverse the final judgment and remand for a new trial. Because we conclude that any error committed by the trial court did not constitute harmful error, we affirm.

Appellant did not file the initial mortgage foreclosure complaint. Almost six years after the original complaint was filed, Appellant was granted leave by the trial court to be substituted as the party plaintiff and to file a two-count amended complaint to foreclose on the subject mortgage and to re-establish the lost promissory note. The case proceeded to trial on Appellant’s amended complaint. Because Appellees raised a defense of lack of standing, Appellant had the burden at trial to establish that it had standing to foreclose at the time of trial and that the original plaintiff had standing at the time the foreclosure complaint was filed. See Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015) (quoting Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st DCA 2014)).

In an effort to establish the standing of the original plaintiff, Appellant attempted to admit into evidence .an assignment of the mortgage from the lender to the initial plaintiff. The trial court excluded this evidence, concluding that it was not'trustworthy and was inadmissible under the business records exception to the hearsay rule codified at section 90.803(6), Florida Statutes (2016). In its first argument on appeal, Appellant contends that the trial court erred in ruling that the assignment of mortgage was inadmissible under section 90.803(6) because the mortgage assignment was separately admissible as a verbal act. See Holt v. Calchas, LLC, 155 So.3d 499, 502 n.2 (Fla. 4th DCA 2015) (concluding-that an-assignment of mortgage is admissible into evidence as a ver-' bal act irrespective of the business record exception to the hearsay rule); Deutsche Bank Nat’l Tr. Co. v. Alaqua Prop., 190 So.3d 662, 665 (Fla. 5th DCA 2016) (holding that a promissory note does not have to qualify as a business record under the business record exception to the hearsay rule and is admissible for its independent legal' significance—to establish the -existence of the contractual relationship and the rights and obligations of the parties to the note, regardless of the truth of any assertions made in the document). We agree with Appellant that the trial court erred in failing to admit into evidence the assignment of mortgage as that would have assisted Appellant in establishing standing at the inception of the suit. However, Appellant was still-required to establish standing at the time of-trial.

Appellant’s other argument for reversal is that the trial court erred in precluding Appellant’s witness from testifying about Appellant’s general policies and procedures concerning lost instruments. Notably, Appellant does not contend that at some point, it had possession.of the original note and then lost it. Rather, the note was ostensibly lost by a predecessor holder. Having reviewed the witness’s testimony, as well as his proffered testimony, we find that the testimony, if admitted into evidence, would not have been sufficient to re-establish the lost note. Accordingly, even if the trial court erred in its two challenged rulings, “an error in an eviden-tiary ruling does not necessarily constitute harmful error.” Wells Fargo Bank, N.A. v. Ousley, 212 So.3d 1056, 1058 (Fla. 1st DCA 2016). Appellant has not shown harmful error. The final judgment is therefore affirmed.

AFFIRMED.

COHEN, C.J., PALMER and LAMBERT, JJ., concur. -

      . A verbal act Is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statements of legal consequence, are not hearsay, because the Statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it,

        Arguelles v. State, 842 So.2d 939, 943 (Fla. 4th DCA 2003) (quoting Banks v. State, 790 So.2d 1094, 1097-98 (Fla. 2001)).


text:
    Terry KENDRON, Appellant, v. SCI FUNERAL SERVICES OF FLORIDA, LLC d/b/a Wylie Baxley Funeral Home, Appellee.
    Case No. 5D16-3600
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 8, 2017
    David A, Baker and Mark A. Cavins, of The Law Office of David A. Baker, P.A., Rockledge, for Appellant.

      Ronald M. Schirtzer, of Weinberg Wheeler Hudgins Gunn & Dial, LLC, Orlando, for Appellee.
   PER CURIAM.

This case involves the delayed discovery of a funeral home’s mishandling of cremated remains. Lucille Kendron passed away on October 19, 1998. Soon thereafter, her son, Terry Kendron, hired Wylie Baxley Funeral Home to handle the funeral and cremation. Lucille’s cremains were to be laid to rest beside her late husband. In 2014, Kendron learned via letter that this did not happen and that the funeral home still possessed his mother’s ashes. He was told to collect Lucille’s cremains or be charged a storage fee. Kendron later filed suit against SCI Funeral Services of Florida, LLC, d/b/a Wylie Baxley Funeral Home, for tortious interference with human remains, intentional infliction of emotional distress, and negligent infliction of emotional distress, claiming that as a result of the funeral home’s actions he suffered from depression, stress, anger, and anxiety, all of which required medical attention. However, the complaint was dismissed with prejudice after the trial court concluded the statute of limitations had expired on Kendron’s claims. Kendron now appeals the dismissal of his lawsuit. .Concluding that the statute of limitations barred his claim for tortious interference with human remains, we affirm the dismissal of that claim without further discussion. However, for the following reasons, we reverse the dismissal of' Kendron’s claim for intentional infliction of emotional distress and negligent infliction of emotional distress.

Orders dismissing a complaint are reviewed de novo as they present a question of law. Scovell v. Delco Oil Co., 798 So.2d 844, 846 (Fla. 5th DCA 2001). Furthermore, “[djetermining when a cause of action accrues is a question of law, not fact.” Bombardier Aerospace Corp. v. Signature Flight Support Corp., 123 So.3d 128, 130 (Fla. 5th DCA 2013). “A motion to dismiss should only be granted ’under extraordinary circumstances where the facts in the complaint, taken as true, conclusively show that the action is barred by the statute of limitations.’” Goodwin v. Sphatt, 114 So.3d 1092, 1094 (Fla. 2d DCA 2013) (quoting Ambrose v. Catholic Soc. Servs., Inc., 736 So.2d 146, 149 (Fla. 5th DCA 1999)).

A claim alleging an - intentional tort or negligence is required to be brought within four years from the time the plaintiffs cause of action accrued. § 95.11(3)(a), (o), Fla. Stat. (2016). “A- cause of action accrues when the last element constituting the cause of action" occurs.” § 96.031, Fla. Stat.

The elements of a cause of action for intentional infliction of emotional distress are: (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused emotional'distress; and (4) the emotional distress was severe. Food Lion, Inc. v. Clifford, 629 So.2d 201, 202 (Fla. 5th DCA 1993) (citing Williams v. City of Minneola, 619 So.2d 983, 986 (Fla. 5th DCA 1993)). The elements of negligent infliction of emotional distress .are: “(1) the plaintiff must suffer a discernable physical injury; (2) the physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in the event causing the negligent injury, to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.” LeGrande v. Emmanuel, 889 So.2d 991, 995 (Fla. 3d DCA 2004) (citing Zell v. Meek, 665 So.2d 1048, 1052 (Fla. 1995)). Here, Kendron’s claim for intentional infliction of emotional distress did not accrue until he experienced severe emotional distress. His claim for negligent infliction of emotional distress would not accrue until he experienced a discernible physical injury.

' With that said, in order for Kendron’s negligent infliction of emotional distress claim to survive dismissal on remand, he must allege that his mental distress was “manifested by physical injury” or he must allege that Appellee’s conduct was .willful or wanton. Although “[t]he absence of physical impact does not bar a claim for the negligent mishandling, of a dead body under Florida law,” Gonzalez v. Metro. Dade Cty. Pub. Health Tr., 651 So.2d 673, 675 (Fla. 1995), the allegation of mere psychic trauma is not enough to sustain a claim for negligent infliction of emotional distress. Champion v. Gray, 478 So.2d 17, 20 (Fla. 1985), receded from on other grounds by Zell, 665 So.2d at 1054 (refusing to expand impact rule to purely subjective and speculative damages for psychic trauma alone). As explained in Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850 (Fla. 2007), if there is no .physical impact to plaintiff, “the complained-of mental distress must be ’manifested by physical injury,’ the plaintiff must be ’involved’ in the incident by seeing, hearing, or arriving on the scene as the traumatizing event occurs, and the plaintiff must suffer the complained-of mental distress and accompanying physical impairment ’within a short time’ of the incident.” id. (quoting Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 526 (Fla. 3d DCA 1985)); accord Zell, 665 So.2d at 1050, 1052 (finding cause of action for psychological trauma exists in Florida when there is “some physical impact to a claimant” or in cases “where psychological trauma could be demonstrated to cause a demonstrable physical injury”); Gonzalez, 651 So.2d at 675 (“A cause of action for emotional distress involves special damages which are inherently difficult to ascertain and measure, hence the additional requirements of physical impact, physical injury, or malicious conduct under Florida law.”); Brady v. SCI Funeral Servs. of Fla., Inc., 948 So.2d 976, 978 (Fla. 1st DCA 2007) (“Florida’s impact rule does not apply to cases where the tortfeasor’s negligence may be characterized as willful or wanton.” (citing Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla. 1950))).

While we offer no opinion on whether Kendron will actually be able to prove the elements of these causes of action, we nonetheless conclude it was error to dismiss them based on the statute of limitations.

AFFIRMED in part, REVERSED in part, and REMANDED.

BERGER, LAMBERT and EDWARDS, concur.

      . As further discussed below, the trial court should have dismissed Kendron’s negligent infliction of emotional distress claim based on Appellee’s impact rule argument, but the dismissal should-have been without prejudice.


text:
    BANK OF NEW YORK MELLON f/k/a Bank of New York Successor Trustee to JP Morgan Chase Bank, N.A., as Trustee FOR the BEAR STEARNS ARM TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-7, Appellant, v. William M. THOMPSON, Sheri Thompson, Reserve at Tuscawilla Community Association, Inc., Jupiter House, LLC, E*Trade Bank, Appellees.
    Case No. 5D16-3372
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 8, 2017

      Adam M. Topel, of Liebler, Gonzalez & Portuondo, Miami, for Appellant.
    Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Jupiter House, LLC.
    No Appearance for Other Appellees.
   PER CURIAM.

Appellant challenges the lower court’s order that involuntarily dismissed its foreclosure case against Appellees. The lower court concluded that Appellant failed to establish its standing to foreclose and the superiority of its lien. We reverse.

Appellant is correct that the lower court erred in its conclusion regarding standing. See Bank of N.Y. Mellon v. Milford, 206 So.3d 137, 137-38 (Fla. 4th DCA 2016) (reversing order involuntarily dismissing foreclosure case for lack of standing where bank filed copy of note indorsed in blank with complaint and offered original note into evidence at trial; this evidence created inference that bank was in possession of note at time it filed complaint and, without evidence to contrary, this was sufficient to establish standing); U.S. Bank Nat’l Ass’n v. Laird, 200 So.3d 176, 177 (Fla. 5th DCA 2016) (bank had standing to foreclosure where it attached to complaint copy of note and copy of allonge, which contained specific indorsement in favor of bank, and it later filed with court original note and allonge in same condition as copies attached to complaint).

We also agree that the lower court ei*red by dismissing the action for the failure of Appellant to allege or prove superiority of its lien. See Black Point Assets, Inc. v. Fed. Nat’l Mortg. Ass’n, 220 So.3d 566 (Fla. 5th DCA 2017); see also Bayview Loan Servicing, LLC v. Luciano Del Lupo, 208 So.3d 97, 97-98 (Fla. 4th DCA 2017) (reversing involuntary dismissal and remanding for new-trial where plaintiff presented prima facie evidence of each element of foreclosure case).

REVERSED AND REMANDED for a new trial.

TORPY, EVANDER and LAMBERT, JJ., concur.


text:
    ORANGE COUNTY, Florida, Appellant/Cross-Appellee, v. Rick SINGH, Individually, Scott Randolph, Individually, Jerry Demings, Sheriff of Orange County, Rick Singh, Orange County Property Appraiser, Scott Randolph, Orange County Tax Collector, Appellees/Cross-Appellants, Bill Cowles, Orange County Supervisor of Elections and Orange County Canvassing Board, Appellees.
    Case Nos. 5D16-2509
    5D16-2511
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 8, 2017
    Jeffrey J., Newton, County Attorney, and William C. Turner, Assistant County Attorney, Orange County Attorney’s Office, Orlando, for Appellant/Cross-Appel-lee, Orange County, Florida.
    John H. Pelzer, of Greenspoon Marder, P.A.', Fort Lauderdale, and Michael’ Mard-ers of Greenspoon Marder, P.A., Orlando, for Appellee/Cross-Appellant Rick Singh, Individually, and as Orange County Property Appraiser.
    Gigi Rollini and Mark Herron, of Messer Caparello, P.A., Tallahassee, for Appel-lee/Cross-Appellant, Scott Randolph, Orange County Tax Collector, and Scott Randolph, Orlando, pro se.
    Eric D. Dunlap, Assistant General Counsel, Orange County Sheriffs Office, Legal Services Section, Orlando, for Appel-lee/Cross-Appellant, Jerry Demings, Sheriff of Orange County.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellee Bill Cowles, Orange County Supervisor of Elections.
    - No Appearance for Appellee Orange County Canvassing Board.
    David H. Margolis, Orlando, Amicus Curiae, for the Orange County Clerk of Circuit Court.
    Jason Vail, of Jolly, Peterson & Truck-enbrod P.A., Tallahassee, Amicus Curiae, for the Florida Sheriffs Association.
   PER CURIAM.

Orange County appeals a final judgment striking a portion of a county charter amendment that provided for the nonpartisan election of certain county constitutional officers. We affirm. The trial court properly determined that the amendment provision was contrary to state law.

On August 19, 2014, the Orange County Board of Commissioners enacted an ordinance proposing an amendment to the Orange County Charter to provide for term limits and nonpartisan elections for six county constitutional officers—clerk of the circuit court, comptroller, property appraiser, sheriff, supervisor of elections, and tax collector. The ordinance provided for the following ballot question to be presented for further approval:

CHARTER AMENDMENT PROVIDING FOR .TERM LIMITS AND NON-PARTISAN ELECTIONS FOR COUNTY CONSTITUTIONAL OFFICERS
For the purpose of ^establishing term limits and nonpartisan elections for the Orange County Clerk of the Circuit Court, Comptroller, Property Appraiser, Sheriff, Supervisor of Elections and Tax Collector, this amendment provides for county constitutional officers to be elected on a non-partisan basis and subject to term limits of four consecutive full 4-year terms.
_Yes
_No

The ballot question appeared on the November 4,2014 ballot and was approved by the majority of Orange County voters. As a result, the relevant portions of section 703 of the Orange County Charter were amended (as underlined) to read:

B. Except as may ,be specifically set forth in the Charter, the county officers referenced under Article VIII, Section 1(d) of the Florida Constitution and Chapter 72-461, Laws of Florida, shall not be governed by the Charter but instead governed by the Constitution and laws of the State of Florida; The establishment of nonpartisan elections and térm limits for county constitutional officers shall in no way affect or impugn their status as independent constitutional officers, and shall in no way imply any authority by the board whatsoever over such independent constitutional officers..
' C. Elections for all county constitutional offices shall be. non-partisan. No county constitutional office candidate shall be required to pay any party assessment or be required to state the party of, which the candidate is a member, All county constitutional office candidates’ names shall be placed on the ballot without reference to political party affiliation. *
In the event that more than two (2) candidates have qualified for any single county constitutional office, an election shall be held at the time of the first primary election and, providing no candidate receiyes a majority of the votes cast, the two (2) candidates receiving the most votes shall be placed on the ballot for the general election.
D. Any county constitutional .officer who has held the same county constitutional office for the preceding four (4) full consecutive terms is prohibited from appearing on the ballot for reelection to that office; provided, however, that the terms of office beginning before January 1, 2015 shall not be counted.

Prior to the November 4, 2014 election, three Orange County constitutional officers—the sheriff, property appraiser, and tax collector (collectively “Appellees”)— filed a suit for declaratory and injunctive relief against Orange County, challenging the underlying county ordinance as well as the ballot title and summary. After the election, in ruling on competing summary judgment motions, the trial court upheld the portion of the charter amendment providing for term limits, but struck down that portion providing for nonpartisan elections. The trial court concluded that Orange County was prohibited from regulating nonpartisan elections for county constitutional officers because that subject matter was preempted to the Legislature. This appeal followed.

Article VIII, section 1(g) of the Florida Constitution grants broad home rule power to charter counties, but prohibits those counties from enacting ordinances that are inconsistent with general law:

CHARTER GOVERNMENT. Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of the county operating under a charter may enact county ordinances not inconsistent with general law....

There are two ways in which a county will be found to have enacted an ordinance tHat was inconsistent with general law. First, a county cannot legislate in a field if the subject area has been preempted to the Legislature. Phantom of Brevard, Inc. v. Brevard Cty., 3 So.3d 309, 314 (Fla. 2008). Second, in a field where both the state and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute. Id.

We agree with Appellees’ assertion that Orange County cannot regulate the method and timing of its elections for county constitutional officers because that subject area has been preempted to the State. Article VI, section 1 of the Florida Constitution requires elections to be “regulated by law”—meaning a statute enacted by the Legislature. Grapeland Heights Civic Ass’n v. City of Miami, 267 So.2d 321, 324 (Fla. 1972). The Legislature regulates elections generally in the Florida Election Code, which encompasses chapters 97 to 105 of the Florida Statutes. In 2010, the Legislature enacted section 97.0115, which expressly provided that all matters set forth in the Florida Election Code were preempted to the Legislature:

Preemption.—All matters set forth in chapters 97-105 are preempted to the state, except as otherwise specifically authorized by state or federal law. The conduct of municipal elections shall be governed by s. 100.3605.

§ 97.0115, Fla. Stat. (2010); see also Jackson v. Leon Cty. Elections Canvassing Bd., 204 So.3d 571, 575 (Fla. 1st DCA 2016) (“The Legislature has expressly preempted to the state matters involving state and local elections, with a limited exception for municipal elections.”). Chapter 105, Florida Statutes (2014), set forth provisions and procedures specific to nonpartisan elections. Significantly, chapter 105 did not authorize counties to hold nonpartisan elections for the county constitutional officers that are the subject of the charter amendment at issue.

We reject the County’s argument that article VIII, section 1(d) of the Florida Constitution expressly authorizes charter counties to provide for nonpartisan elections of county constitutional officers. That section provides that county officers are to be elected, unless the county charter specifies that they “be chosen in another manner”:

COUNTY OFFICERS. There shall be elected by the electors of each county, for terms of four years, a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of the circuit court; except, when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office....

Art. VIII, § 1(d), Fla. Const. That provision simply authorizes a charter county to select its county constitutional officers in some other manner than by election. It does not grant a charter county the power to regulate elections for those officers. See In re Advisory Opinion to the Governor, 313 So.2d 717, 721 (Fla. 1975) (interpreting article VIII, section 1(d) to mean that the sheriff, tax collector, tax assessor, supervisor of elections, and clerk of the circuit court are to be elected by the electors of each county but containing the proviso “that alternatively another manner than election for the selection of these officers may be provided for by county charter or special law”); Op. Att’y Gen. Fla. 86-82 (1986) (“Thus, s. 1(d) of Art. VIII merely authorizes a charter providing for the selection of county officers in another manner than elections; it does not authorize the charter to regulate the manner and election of these officers.”).

In conclusion, we hold that the trial court correctly struck down that portion of Orange County’s charter amendment that provided for the nonpartisan election of its county constitutional officers. We affirm, without discussion, the remaining issues raised on appeal and cross-appeal.

AFFIRMED.

PALMER, TORPY and EVANDER, JJ., concur.

      , The trial court properly determined- that these constitutional officers could only sue in their individual capacity—not in their official capacity. State ex rel. Watson v. Kirkman, 158 Fla. 11, 27 So.2d 610, 612 (1946) (“As a general rule a public official whose rights are not adversely and injuriously affected by the operation of an Act, or the particular feature complained of, may not raise the question of its constitutionality. The mere interest of a public official as such is not sufficient to entitle him to question the validity of a statute, but to entitle the official to the right to raise such a question he must show that his rights of person or property are adversely affected by the operation of the statute.”).


author: PICKETT, Judge.

text:
    Junius ROBINSON v. CAPITAL STAFFING, et al.
    17-114
    Court of Appeal of Louisiana, Third Circuit.
    10/18/2017
    Rehearing Denied December 6, 2017

      Michael B. Miller, Attorney at Law,'P.O. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF-APPELLEE: Junius Robinson
    Eric E. Pope, Pamela Noya Molnar, Blue Williams, L.L.P., 3421 N. Causeway Blvd., Suite 900, Metairie, LA 70002, (504) 831-4091, COUNSEL FOR INTERVE-NOR-APPELLANT: South East Personnel Leasing, Inc.
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard-Ezell, Judges.
   PICKETT, Judge.

hThe employer in this workers’ compensation suit appeals a judgment that ¿warded the employee penalties and attorney fees against it because the employer improperly suspended the employee’s indemnity benefits after he failed to attend two medical examination appointments that it scheduled. For the following reasons, we reverse the judgment.

FACTS

On October 2, 2015, Junius Robinson filed an LDOL 1008 claim, alleging that he was injured while working in the course and scope of his employment with LA Rice Mill, Inc. and Capital Staffing. These two defendants denied employing Mr. Robinson. South East Personnel Leasing, Inc. (South East) filed a petition of intervention in which it averred that Mr. Robinson was its employee and that he was. leased to its client, Capital Welding Fabrication, Inc. South East assumed the defense in this matter.

. Upon issuing indemnity benefits to Mr,Robinson, South East scheduled an appointment for him to be examined by Dr. Harold Granger on November 30, 2015. Mr. Robinson missed the appointment, and South East rescheduled the appointment for January 11,2016. Mr. Robinson arrived at the appointment more than forty-five minutes late and was informed that Dr. Granger had left his office for the day. South East suspended Mr. Robinson’s indemnity benefits after he missed the second appointment with Dr. Granger but reinstated those benefits on approximately April 14, 2016, after he was. examined by Dr. Granger,

In June 2016, Mr. Robinson filed a motion seeking penalties and attorney fees for the suspension of- his benefits. After a hearing, the workers’ compensation | ¡Judge (WCJ) determined that South 'East violated the workers’ compensation law-by suspending Mr. Robinson’s benefits without first obtaining an order compelling his attendance at the medical examination and awarded Mr. Robinson $8,000 in penalties and $6,000 in attorney fees.

South East filed a writ application with this court, seeking reversal of the judgment on the basis of four assigned errors. Upon review of the writ application, another panel of this - court concluded that the WCJ’s judgment at issue- herein is a final appealable judgment and converted the writ application to an appeal. See Junius Robinson v. Capital Staffing, 16-829 (La. App. 3 Cir. 12/1/16) (unpublished writ decision),

ASSIGNMENTS OF ERROR .

South East urges that the WCJ committed the following errors that warrant- reversal of the judgment against it:

1. The lower Court erred in ruling that an Employer is required to obtain an order compelling a Claimant to attend a second medical opinion appointment-prior to the suspension of benefits, in light of the amendments to La.R.S. 23:1124, and in awarding ’ penalties and- attorney! 3 fees as a result. ’ -
2. The lower Court erred in failing to allow Employer’s claims adjuster to testify that the Claimant was served via certified mail when analyzing Employer’s compliance with La.R.S. 23:1201,1(A)(4) and (5).
3. The lower Court improperly awarded attorney[ ], fees and penalties at this intermediate juncture of the proceeding, as litigation is ongoing and the Court’s ruling has the potential to subject Employer to additional 'attorney[] fees and penalties in violation of the [Workers’] Compensation Act.
4. The lower Court' erred in the amount of penalties and attorney[ ] ■. fees it awarded given the amount of legal work involved: [in] the filing and appearance at a hearing for one motion[] and [in its assessment of] the maximum penalty prior to the case proceeding to formal hearing.

J^DISCUSSION

South East defends against Mr. Robinson’s claims for penalties and attorney fees, arguing that its suspension of Mr. Robinson’s benefits without first obtaining an order compelling his attendance at the examination is -authorized by La.R.S. 23:1124 in conjunction with La.R.S. 23:1201.1(A)(4) and (5). Prior to the hearing on Mr. Robinson’s claims, South East requested that the hearing be converted to a preliminary determination hearing. See La.R.S. 23.1201.1(H),-which allows employers. to obtain preliminary determinations on various disputed issues that arise in the course of litigating workers’ compensation claims. Before the hearing began, the WCJ denied South East’s request because it failed to seek a preliminary determination as provided in Subsection 1201.1(H) in conjunction with Subsection 1201.1(G).

At the conclusion of the hearing, the WCJ took the matter under advisement. Thereafter, the WCJ issued oral reasons for judgment finding that because South East did not follow the procedure for a preliminary determination hearing set forth in Section 1201.1, Mr. Robinson was entitled to penalties and attorney fees and awarded him $8,000 in penalties and $6,000 in attorney fees. The WCJ did not address South East’s defense that it was not responsible for penalties and attorney fees because it followed the procedure set forth in Section 1124 when it suspended Mr. Robinson’s benefits.

Mr. Robinson counters South East’s defense on two bases: (1) no case has held that an employee’s indemnity benefits can be suspended under Section 1124 without a court order compelling his attendance at a medical examination, and (2) South East failed to prove that it followed the procedure outlined by Subsection 1201.1(A)(4). In 2013, the legislature amended Section 1124 and enacted Section 1201.1. See Acts 2013, No. 337, § 1. None of the cases cited by Mr. Robinson-1 ¿involved the application of the current version of Section 1124 to claims arising after 2013, when it became effective, and this court has not found any case in which the suspension of indemnity benefits as provided by the current version of Section 1124 was at issue.

Effect of 2013 Legislation

South East argues that Section 1124, as amended in 2013, provides employers two procedural options for suspending benefits when employees fail to attend medical examinations. Specifically, South East asserts that the first option allows employers to suspend benefits if the suspension is done in accordance with the requirements of Subsections 1201.1(A)(4) and (5), but the second option is executed by the WCJ upon the employer’s motion to compel an examination. We must analyze these revisions to address the issues presented herein.

Pursuant to La.R.S. 23:1121(A), an employee “shall” submit himself to an examination by a physician selected by his employer. If an employee fails to attend a medical examination, Section 1124 now directs:

If the employee refuses to submit himself to a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter may be suspended by the employer or payor until , the examination takes place. Such suspension of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A)(4) and (5). When the employee has filed a disputed claim, the employer or payor may move for an order to compel the employee to appear for an examination. The employee shall receive at-least fourteen days written notice prior to the examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.

As argued by South East, Section 1124 now provides two procedures for employers to require employees’ attendance at medical examinations. The first procedure allows employers to suspend employees’ benefits but requires that the suspension be “in accordance with the provisions of’ Subsections 1201.1(A)(4) |Band (5). The second procedure allows employers to obtain an order compelling the employee to attend a medical examination when the employee filed a disputed claim.

Section 1201.1 also provides a procedure for addressing claims arising out of Section 1124. Therefore, we must analyze Section 1124 in light of the procedures set forth in Section 1201.1. We examine these provisions mindful that “WTien the law is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used.” State v. McKinnies, 13-1412, p. 7 (La. 10/15/14), 171 So.3d 861, 867. We are also mindful that as a'general rule of statutory interpretation, a specific statute controls over a broader, more general statute. La. Mun. Ass’n v. State, 04-227 (La. 1/19/05), 893 So.2d 809.

Section 1201.1 is prefaced with:

A. Upon the first payment of compensation or upon any modification, suspension, termination, or controversion of compensation or medical benefits for any reason, including but not limited to issues of medical causation, compensability of the claim, or issues arising out of R.S. 23:1121, 1124, 1208, and 1226, the employer or payor who has been notified of the claim, shall, do all of the following[.] ,

Subsection (A) then itemizes five notice requirements that employers must satisfy when modifying, suspending, terminating, or controverting benefits. Employers who fail to comply with these provisions subject themselves to penalties and attorney fees. La.R.S. 1201.1(1); (L).

Having reviewed the amendment of Section 1124 and the provisions of Section 1201.1, we agree with South East that Section 1124 provides employers two options for suspending employees’ benefits if they fail to attend a scheduled medical examination. To accept Mr. Robinson’s argument requires us to ignore |fithe amended language of Section 1124. The clear language of Section 1124 and pertinent provisions of Section 1201.1 confirm this conclusion.

Prior to 2013, Subsection 1124(B) provided the procedure for employers to compel employees’ attendance at medical examinations., That .procedure now appears in Subsection 1201.1(K)(8)(a)(iv). Additionally, Subsection 1201.1(K)(8)(a)(vii) provides a procedure for employees to have “a suspension of benefits for failure to submit to a medical examination lifted,” and Subsection 1201.1(K)(8)(d) (emphasis added) provides:

If the employee seeking relief pursuant to this Paragraph can show good cause for his refusal, the workers’ compensation judge shall order the suspension ,.. lifted and the payment of any arrearage due. If the employee fails to show good cause for refusal, the workers’ compensation judge shall order the suspension ... to continue until the employee complies.

These provisions make no sense if employers cannot suspend benefits without obtaining an order compelling employees to attend medical examinations. Clearly, taken together, the provisions of Sections 1124 and 1201.1 contemplate the suspension of employees’ benefits without a hearing, Therefore, if Section 1124 does not allow employers the self-help option of suspending benefits upon complying with Subsections 1201(A)(4) and (5), the 2013 amendment serves no purpose and is rendered meaningless. The same is true, for Subsections (K)(8)(a)(vii) and (K)(8)(d).

For these reasons, we conclude that Section 1124 allows employers to unilaterally suspend employees’ benefits for failing to attend medical examinations and provides the procedure for doing so and that Section 1201,1 provides the procedure to be followed by employers who choose the second option set forth in Section 1124. See Subsection 1201,l(K)(8)(a)(iv),

| tSuspension of Benefíts under Section 1124

Good Cause for Failure to Attend Medical Examination

Section 1124 allows the suspension of an employee’s benefits if he refuses to submit himself to a medical examination or obstructs such an examination. Mr. Robinson testified at the hearing that he did not attend the first two appointments South East scheduled with Dr. Granger because (1) he lost the notice for the first appointment and forgot the date of that appointment, and (2) he misplaced the notice for the second appointment and could not remember the time of that appointment.

The WCJ did not address this issue; however, La,Code Civ.P. art. 2164 instructs: “[t]he appellate court shall render judgment which is just, legal, and proper upon the record on appeal.” Accordingly, we review Mr. Robinson’s testimony to determine if it is sufficient to allow us to resolve the issue of whether he refused to submit to the examination or obstructed the examination.

Section 1124 does not define “refuse” or “obstruct.” Moreover, because pre-2013 jurisprudence interpreted Section 1124 to require a court order compelling attendance at a medical examination? no jurisprudence addresses . the meaning of these terms in this context. Nonetheless, we find guidance in Section 1201.1(K)(8)(d) which entitles an employee who shows “good cause” for refusing to attend a medical examination to have the suspension of his benefits lifted. We have considered Mr. Robinson’s reasons for not attending the first two ^examinations South East scheduled for him with Dr. Granger and find that they do not constitute “good cause” for his failure to attend the two appointments.

Notice of Suspension

We now turn to Mr. Robinson’s contention that South East did not satisfy the requirements of Section 1124 when it suspended his benefits. Section 1124 provides that an employer “may suspend” an employee’s benefits for failing to attend a medical examination, but requires that “[sjuch suspension of benefits by the employer ... shall be made in accordance with the provisions ' of La.R.S. 23:1201.1(A)(4) and (5).” Subsections 1201.1(A)(4) and (5), respectively, require the employer “to send the ‘Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits’ to the injured employee by certified mail at the address at which the employee is receiving payments of compensation,” and to send a copy of that notice “to the office on the same business day as sent to the employee or to his representative.” Pursuant to Subsection 1201.1(D), when the employee is represented by. counsel, the notice must also be sent by facsimile to counsel. “Proof that the notice was sent to the employee’s representative by facsimile shall be prima facie evidence of compliance with Subsection A of this Section.” Subsection 1201.1(D).

Mr. Robinson first argues that South East must establish that it satisfied all the provisions of Subsection 1201.1(A) as required by the statute. As discussed above, we find that Section 1124 provides a specific procedure for employers to suspend employees’ benefits for failing to attend medical examinations, With respect to the . notice required by Subsections 1201.1(A)(4) and (5), Mr. Robinson objected to testimony by Shannon Gibson, the adjuster for South East’s third-party |fladministrator, regarding the mailing of notices required by Subsection 1201.1(A)(4) because she could not produce a “green card” to show that the notices had been sent by certified mail. The WCJ sustained the objection, and South East proffered Ms. Gibson’s testimony.

A trial court’s decision to exclude evidence will not be reversed unless that decision is shown to be an abuse of discretion. Brandt v. Engle, 00-3416 (La. 6/29/01), 791 So.2d 614. Some statutes, like La.R.S. 23:120T.1(A)(4), require that notice be sent by certified mail, while others require that notice be sent by certified mail return receipt requested. See, e.g., La.R.S. 47:2153(A)(1)(a); La.Code Crim.P. art. 334. A review of our jurisprudence shows that a “green card” is a “return receipt card.” See, e.g., Green v. New Orleans Recreation Dev. Comm’n, 16-1122 (La.App. 4 Cir. 5/10/17), 220 So.3d 165; Marquee Acquisitions, LLC v. T & L Grocery, LLC, 16-239 (La.App. 1 Cir. 12/22/16), 209 So.3d 182; Sunbelt-UBI Business Brokers, Inc. v. Lankford, 03-1477 (La.App. 5 Cir. 5/26/04), 875 So.2d 984; State v. Washington, 29-784 (La.App. 2 Cir. 9/26/97), 700 So.2d 1068.

Subsection 1201.1(A)(4) requires that notice be sent by certified mail, not by certified mail return receipt requested. Therefore, to comply with this requirement, South East had to show that it mailed the notice by certified mail, but it did not have to produce a green card. For this reason, we find that Mr. Robinson’s objection to Ms. Gibson’s testimony bears on the weight to be afforded her testimony, not the admissibility of her testimony, and that the WGJ abused her discretion in excluding the testimony.

We now consider whether the proffered evidence satisfies South East’s burden of proof under Subsections 1201.1(A)(4) and (5). Ms. Gibson testified that she did not personally mail the notice by certified mail but that she instructed her staff to- mail the notice of suspension to Mr. Robison by certified mail. She also | ^acknowledged that she did not have the original documentation evidencing that the notice was mailed by certified mail, and although she testified that it was mailed by certified mail and that she had copies of the “green card” in her file, she did not produce any documentation regarding the mailing of the notice in connection with her testimony. Ms. Gibson’s self-serving evidence does not satisfy Subsection 1201.1(4), See Okpalobi v. LeBorne II, L.L.C., 12-804 (La.App. 4 Cir. 12/5/12), 106 So.3d 640, writ denied, 13-20 (La. 2/22/13), 108 So.3d 773.

South East argues, alternatively, that it satisfied Subsection 1201.1(A)(4) and (5)’s notice requirements because it transmitted the suspension notice as contemplated by Subsection 1201.1(D), which providés that a receipt of transmission of a notice of suspension by facsimile to an employee’s counsel constitutes “prima facie evidence of compliance” with Subsection 1201.1(A). Ms. Gibson testified that the notice of suspension was transmitted via facsimile to counsel for Mr. Robinson, and she identified a copy of the notice and facsimile receipt showing transmission of the notice to Mr. Robinson’s counsel.

South East introduced these documents at the start of the hearing. Mr. Robinson objected to the documents on the basis that the procedural requirements for suspending Mr. Robinson’s benefits are provided by Section 1201.1, not Section 1124. The WCJ admitted the documents subject to that objection. Having determined that Section 1124 in conjunction with Subsection 1201.1(A)(4) and (5) provides the applicable procedure in this matter, we find no basis for excluding this documentary evidence. Ms. Gibson’s testimony together with this evidence satisfies the requirements of Subsection 1201.1(D) and, therefore, constitutes prima facie evidence of South East’s compliance with Subsection 1201.1(A).

InPrima facie evidence is “evidence that is sufficient to establish a given fact”; if that fact is not rebutted or contradicted, the fact is sufficiently proven. Smith v. Alliance Compressors, 05-855, p. 7 (La. App. 3 Cir. 2/1/06), 922 So.2d 674, 679; La.Code Evid. art. 308(A). Comment (b) to Article 308 explains that “‘prima’ facie evidence is generally afforded the weight of a presumption,” which shifts the burden of proving the “non-existence of the inferred fact to the opponent.” Mr. Robinson did not present any evidence contradicting Ms. Gibson’s testimony regarding the transmission of the suspension notice to his counsel by facsimile or the transmission receipt. Accordingly, South East established that it satisfied the requirements of Subsections 1201.1(A)(4) and (5) as required by Section 1124.

Having determined that South East complied with the requirements of La.R.S. 23:1124 and La.R.S. 23:1201.1(4) and (5) when it suspended Mr. Robinson’s benefits, we reverse the WCJ’s awards of penalties and attorney fees.

DISPOSITION

The judgment in favor of Junius Robertson and against South East Personnel Leasing, Inc. is reversed. All costs are assessed to Junius Robertson,

REVERSED,

      . Without objection, Mr. Robinson's counsel entered documentation into evidence which he argued showed that the November appointment was rescheduled because the defendant failed to forward Mr, Robinson’s medical records to Dr. Granger’s office for the January 11 appointment. South East countered that argument with documentation from Dr. Granger, stating he would have conducted the examination ’without Mr. Robinson’s records if he had been present for the appointment.

      . Section 1124(B) previously provided for the suspension of an employee's benefits for fail- . ure to - attend a medical examination, unless he could "show good cause for his refusal or obstruction of the medical examination.” However, because the jurisprudence required employers to obtain an order compelling employees’ attendance at such examinations, only one case was found that addressed the issue. In Gee Cee Group, Inc. v. Thomas, 12-514 (La.App. 4 Cir. 10/31/12), 103 So.3d 671, the employee who failed to attend a medical examination 'after being ordered to attend by the court without obtaining a protective order was unreasonable and warranted the suspension of his benefits.

      . "The form of the 'Notice of Payment, Modification, Suspension, Termination, or Contr-oversion of Compensation and/or Medical Benefits' is promulgated by the Office of Workers’ Compensation.” La.R.S. 23:1201.1(B).