text:
    FLORIDA BOARD OF BAR EXAMINERS RE S.T.S.
    No. SC16-1870.
    Supreme Court of Florida.
    Oct. 28, 2016.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and S.T.S. shall be admitted to The Florida Bar subject to the following conditions:

1. The Applicant’s license to practice law shall be placed on probation for a period of 2 years.

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

(a) abstain from the consumption of alcoholic beverages;

(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;

(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on November 26, 2011, and by extending the contract to cover the entire period of probation if necessary;

(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings at such frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other individuals with a substance use disorder;

(e) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA;

(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA; and

(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), (d) and (e) above.

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

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

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

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

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

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

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

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


source: Caselaw Access Project

author: PER CURIAM. CANADY, J.,

license: Public Domain

text:
    John PATRICK, Petitioner, v. Richard HESS, et al., Respondents.
    No. SC15-1147
    Supreme Court of Florida.
    February 16, 2017

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, Florida, for Petitioner
    Elisa Stehl Worthington of Elisa S. Worthington, P.A., Pineland, Florida, for Respondents
   PER CURIAM.

John Patrick seeks review of the decision of the Second District Court of Appeal in Hess v. Patrick, 164 So.3d 19 (Fla. 2d DCA 2015), on the ground that it expressly and directly conflicts with Haigh v. Planning Board, 940 So.2d 1230 (Fla. 5th DCA 2006), and New York State Commissioner of Taxation & Finance v. Friona, 902 So.2d 864 (Fla. 4th DCA 2005). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons provided below, we hold that the twenty-year statute of limitations found in section 95.11(1), Florida Statutes (2012), is applicable to the enforcement of a foreign judgment after it is recorded under the Florida Enforcement of Foreign Judgments Act (FEFJA). We therefore approve the decision of the Second District in Hess and disapprove the conflict cases to the extent they are inconsistent with this opinion.

FACTS

In December 2003, Richard Hess, Meredith Hess, and Lucre, Inc., (collectively the Hesses) obtained an amended judgment against John T. Patrick (hereinafter Patrick) from a federal district court in Arizona in the amount of $1,600,000. Hess, 164 So.3d at 19. On April 26, 2006, the Hesses registered the Arizona judgment in Florida under FEFJA. Id. at 20. Because the Hesses failed to renew the judgment prior to the expiration of Arizona’s five-year statute of limitations, the judgment became unenforceable in Arizona in 2008. Id. On September 12, 2012, the Hesses obtained a writ of execution in Florida, and Patrick filed a motion to quash the writ. Id. The trial court determined that the Arizona judgment was not enforceable in either Arizona or Florida because Arizona’s five-year statute of limitations continued to control after domestication of the Arizona judgment in Florida under the Act. Id. Accordingly, the trial court granted Patrick’s motion and quashed the writ with prejudice. Id. The Hesses appealed the trial court’s order.

On appeal, the Second District held that “by domesticating the Arizona judgment under FEFJA, Florida’s twenty-year statute of limitations [contained in section 95.11(1) ] applie[d] and beg[an] to run from the date of the Arizona judgment.” Id. at 22. In reaching this conclusion, the Second District reasoned that “a domesticated foreign judgment is to be treated like a Florida judgment” under section 55.503(1), Florida Statutes (2012). Id. The Second District further found that a domesticated judgment is not subject to the five-year statute of limitations in section 95.11(2)(a) because “recording a foreign judgment and seeking to enforce it under FEFJA is not an action on a foreign judgment” and “as worded, section 55.502(4) applies to Florida’s five-year statute of limitations applicable to actions to enforce a foreign judgment referenced in subsection (2) of the same section, not the varied statutes of limitation in states around the country.” Id. at 20, 22. The district court reversed the trial court order and remanded the case so that the Hesses could proceed with the writ of execution against Patrick. Id. at 22.

DISCUSSION

The question under review involves a determination of the applicable statute of limitations for the enforcement of a foreign judgment after it is recorded under FEFJA. This Court reviews the interpretation of a statute de novo. See Polite v. State, 973 So.2d 1107, 1111 (Fla. 2007). The goal of this statutory interpretation “is to determine legislative intent.” Crews v. State, 183 So.3d 329, 332 (Fla. 2015). To do so, we first consult the plain meaning of the text of the statute. W. Fla. Reg’l Med. Ctr., Inc, v. See, 79 So.3d 1, 9 (Fla. 2012). “When the statute is clear and unambiguous,” we look no further than the statute’s plain language to determine the Legislature’s intent and to avoid rules of statutory construction. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005).

Where the statutory “language is unclear or ambiguous,” we apply rules of statutory construction to determine legislative intent. Polite, 973 So.2d at 1111. One such rule is “[t]he doctrine of in pari materia .... [which] requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.” Larimore v. State, 2 So.3d 101, 106 (Fla. 2008) (quoting Fla. Dep’t of State v. Martin, 916 So.2d 763, 768 (Fla. 2005)). In following this rule, we endeavor to give each clause of the statute effect and to accord harmony among all the statute’s parts. Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla. 2001) (quoting Acosta v. Richter, 671 So.2d 149, 153-54 (Fla. 1996)).

Florida enacted the Uniform Enforcement of Foreign Judgments Act, or Florida Enforcement of Foreign Judgments Act (FEFJA), in 1984. In re Goodwin, 325 B.R. 328, 330 (Bankr. M.D. Fla. 2005); see §§ 55.501-.509, Fla. Stat. (2012). The Act creates an alternative simplified procedure for domesticating foreign judgments. N.Y. State Comm’r of Taxation & Fin. v. Hayward, 902 So.2d 309, 310 (Fla. 4th DCA 2005). FEFJA gives Florida courts a procedure by which “out-of-state foreign judgments will be given full faith and credit.” Hess, 164 So.3d at 20; see § 55.502(1) Fla. Stat. (“As used in ss. 55.501-55.509, the term ‘foreign judgment’ means any judgment, decree, or order of a court of any other state or of the United States if such judgment, decree, or order is entitled to full faith and credit in this state.”).

FEFJA was intended to provide an efficient method of enforcing foreign judgments without undue cost and difficulty associated with filing a new, separate action to domesticate a foreign judgement. Pratt v. Equity Bank, N.A., 124 So.3d 313, 315-16 (Fla. 5th DCA 2013) (quoting Arch-bold Health Services, Inc. v. Future Tech Bus. Sys., Inc., 659 So.2d 1204, 1206 (Fla: 3d DCA 1995)). Before Florida’s adoption of FEFJA in 1984, creditors seeking creation of a valid lien had to file an action to domesticate the judgment and record the judgment in Florida. Michael v. Valley Trucking Co., 832 So.2d 213, 215 (Fla. 4th DCA 2002). A foreign judgment domesticated under FEFJA has the same effect as a Florida judgment and is subject to the same legal and equitable defenses and rules of procedure. Desert Palace, Inc. v. Wiley, 145 So.3d 946, 947 (Fla. 1st DCA 2014).

FEFJA provides the following:
55.501 Florida Enforcement of Foreign Judgments Act; short title.—Sections 55.501-55.509 may be cited as the “Florida Enforcement of Foi’eign Judgments Act.”
55.502 Construction of act.—
(1) As used in ss. 55.501-55.509, the term “foreign judgment” means any judgment, decree, or order of a court of any other state or of the United States if such judgment, decree, or order is entitled to full faith and credit in this state.
(2) This act shall not be construed to impair the right of a judgment creditor to bring an action to enforce his or her judgment instead of proceeding under this act.
(3) This act shall be interpreted and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.
(4) Nothing contained in this act shall be construed to alter, modify, or extend the limitation period applicable for the enforcement of foreign .judgments.
55.503 Recording and status of foreign judgments; fees.—
(1) A copy of any foreign judgment certified in accordance with the laws of the United States or of this state may be recorded in the office of the clerk of the circuit court of any county. The clerk shall file, record, and index the foreign judgment in the same manner as-a judgment of a circuit or county court of this state. A judgment so recorded shall have the same effect and shall be subject to the same rules of civil procedure, legal and equitable defenses, and proceedings for reopening, vacating, or staying judgments, and it may be enforced, released, or satisfied, as a judgment of a circuit or county court of this state.

§§ 55.501-55.503(1), Fla. Stat. (emphasis added). Section 55.502(4) is a nonuniform provision added by the Florida Legislature, and no other state’s version of the Act contains this provision. This Court has only discussed FEFJA in one case, where we briefly acknowledged both section 55.503(1) and section 55.502(4). See Nadd v. Le Credit Lyonnais, S.A., 804 So.2d 1226, 1229 n.7 (Fla. 2001).

Patrick argues that the limitations period applicable to the enforcement of a foreign judgment recorded under FEFJA is the limitations period applicable in the state where the judgment was originally rendered under section 55.502(4). We cannot agree. With respect to the statute of limitations question here, FEFJA does not contain its own statute of limitations^ We conclude, as did the Second District, that “as worded, section 55.502(4) applies to Florida’s five-year statute of limitations applicable to actions to enforce a foreign judgment referenced in subsection (2) of the same section, not the varied statutes of limitation in states around the country.” Hess, 164 So.3d at 22. Accordingly, we turn to Florida’s general statutory provisions to determine a limitations period.

Section 95.11, Florida Statutes (2012), provides the following statute of limitations:

Actions other than for recovery of real property shall be commenced as follows:
(1) WITHIN TWENTY YEARS.—An action on a judgment or decree of a court of record in this state.
(2) WITHIN FIVE YEARS.—
(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.

Enforcement of judgments within the state must be conducted within “the time constraints of section 95.11,” Florida Statutes. Nadd, 804 So.2d at 1232.

‘ Patrick alternatively argues that the limitations period applicable to the enforcement of a foreign judgment recorded under FEFJA is five years under section ■95.11(2)(a). We disagree. We do not believe the Legislature intended to subject a foreign judgment recorded under FEFJA to the enforcement limitations set forth in section 95.11(2)(a) because, once recorded pursuant to the act, a foreign judgment is treated as a Florida judgment. Nadd, 804 So.2d at 1229 n.7; see § 55.503(1), Fla. Stat. •

The language of FEFJA, when read in pari materia with section 95.11(1), demonstrates that the Legislature intended to apply the twenty-year limitations period contained in section 95.11(1) to the enforcement of a foreign judgment after its recording and domestication under FEFJA. FEFJA specifically requires that after a foreign judgment is recorded under the Act, it “shall have the same effect and shall be subject to the same rules of civil procedure, legal and equitable defenses, and proceedings for reopening, vacating, or staying judgments, and it may be enforced, released, or satisfied, as a judgment of a circuit or county court of this state.” § 55.503(1), Fla. Stat. Therefore, we hold that the twenty-year statute of limitations found in section 95.11(1) applies to the enforcement of a foreign judgment after it is recorded under FEFJA. This interpretation gives full effect to the legislative intent to treat a foreign judgment recorded under FEFJA as a judgment of this state by subjecting it to the same enforcement limitations applicable to domestic judgments. See § 55.503(1), Fla. Stat.; Nadd, 804 So.2d at 1229 n.7.

Moreover, this interpretation is consistent with this Court’s reasoning in Nadd. In Nadd, this Court addressed the statute of limitations applicable to a foreign judgment under Florida’s codification of the Uniform Foreign Money Judgment Recognition Act (UFMJRA)—a similar uniform law—and explained that “[sjection 95.11(1) provides that an action to enforce a judgment of a court of record of this state must be commenced within twenty years.” Nadd, 804 So.2d at 1232. This Court held that the twenty-year statute of limitations applies to actions brought to enforce a judgment once it has become domesticated under the Uniform Foreign Money Judgment Recognition Act. Id. at 1233. Similarly, once a judgment is recorded and domesticated under FEFJA, it is treated as a judgment of this state and thus subject to the twenty-year limitations period contained in section 95.11(1).

CONCLUSION

The Second District’s decision in Hess expressly and directly conflicts with the Fifth District’s decision in Haigh and the Fourth District’s decision in Friona on the same question of law. Hess correctly concluded that the twenty-year limitations period contained in section 95.11(1) applies to the enforcement of a foreign judgment after it is domesticated under FEFJA. In contrast, Haigh erroneously concluded that a foreign judgment domesticated under FEFJA is subject to the limitations period in the jurisdiction in which the judgment was originally rendered because the proceedings under FEFJA are derivative of the original judgment. Haigh, 940 So.2d at 1234. Friona erroneously concluded that “[o]nce domesticated [under FEFJA], a foreign judgment will be effective for a period no longer than the original forum’s statute of limitations or twenty years, whichever comes first.” Friona, 902 So.2d at 866.

For the reasons stated above, we approve the decision of the Second District and disapprove Haigh and Friona.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

LAWSON, J., did not participate.

CANADY, J.,

dissenting.

Because I conclude that the decision of the Second District in Hess v. Patrick, 164 So.3d 19 (Fla. 2d DCA 2015), does not expressly and directly conflict with the decision of the Fifth District in Haigh v. Planning Board, 940 So.2d 1230 (Fla. 5th DCA 2006), or the decision of the Fourth District in New York State Commissioner of Taxation & Finance v. Friona, 902 So.2d 864 (Fla. 4th DCA 2005), I would dismiss this case for lack of jurisdiction under article V, section 3(b)(3) of the Florida Constitution.

In Hess, the Second District addressed the statute of limitations applicable to the enforcement of a foreign judgment after it is recorded under FEFJA and held that “by domesticating the Arizona judgment under FEFJA, Florida’s twenty-year statute of limitations [contained in section 95.11(1) ] applie[d] and beg[an] to run from the date of the Arizona judgment.” Hess, 164 So.3d at 22 (emphasis omitted). In contrast, the Fifth District in Haigh addressed the statute of limitations applicable to a common law action upon a foreign judgment. Haigh held that the underlying suit was a common law “action upon a foreign judgment” rather than a proceeding to record and enforce a foreign judgment under FEFJA, and thus time-barred under section 95.11(2)(a). Haigh, 940 So.2d at 1234. The rule of law announced in Hess addresses the limitations period for enforcing a foreign judgment domesticated under FEFJA while the rule of law announced in Haigh addresses the limitations period for filing an action upon a foreign judgment. Haigh thus provides no basis for the Court to exercise conflict jurisdiction over Hess.

In dicta, Haigh commented that under FEFJA, “proceedings to enforce a foreign judgment are derivative of the original judgment and are therefore subject to the limitations period in the jurisdiction where the judgment was originally rendered.” Id. Such comments do not establish binding legal precedent and therefore do not create conflict. See Ansin v. Thurston, 101 So.2d 808, 811 (Fla. 1958) (“A limitation of review to decisions in ‘direct conflict’ clearly evinces a concern with decisions as precedents as opposed to adjudications of the rights of particular litigants.”); see also Ciongoli v. State, 337 So.2d 780, 781-82 (Fla. 1976) (review discharged where “the conflicting language is mere obiter dicta”).

Moreover, Hess does not expressly and directly conflict with Friona. As explained previously, Hess addressed the statute of limitations applicable to the enforcement of a foreign judgment after it is recorded under FEFJA, and the Second District held that Florida’s twenty-year statute of limitations applied to a foreign judgment domesticated under FEFJA. Hess, 164 So.3d at 22. In contrast, the Fourth District in Friona addressed the statute of limitations applicable for recording a foreign judgment under FEFJA and held that “[sjince the time period to enforce the tax warrant under New York law had not expired, NYS should have been permitted to domesticate the judgment [under FEF-JA] in this state.” Friona, 902 So.2d at 867. The rule of law announced in Hess addresses the limitations period for enforcing a foreign judgment domesticated under FEFJA, while the rule of law announced in Friona addresses the limitations period for domesticating a foreign judgment under FEFJA. There is no express and direct conflict with Hess.

In dicta, Friona commented that “[o]nce domesticated [under FEFJA], a foreign judgment will be effective for a period no longer than the original forum’s statute of limitations or twenty years, whichever comes first.” Id. at 866. However, such comments do not establish binding legal precedent and therefore do not create conflict.

This Court lacks jurisdiction under the Florida Constitution to review Hess. I therefore dissent.

POLSTON, J., concurs.

      . The question on review does not involve a determination of the applicable statute of limitations for recording a foreign judgment under FEFJA. In other words, the timeliness of recording a foreign judgment under FEFJA is not at issue here.

      . The Second District in Hess also determined the limitations period begins to run when the judgment is rendered in the foreign jurisdiction. We do not address this issue as it is not necessary for a resolution of this case.

      . See State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation, 276 So.2d 823, 826 (Fla. 1973) (“The statement of the District Court of Appeal in its opinion ... was not essential to the decision of that court and is without force as precedent.”); Pell v. State, 97 Fla. 650, 122 So. 110, 112 (1929) (explaining that "mere obiter dictum [is] without force as a precedent”).


author: Damoorgian, J.

text:
    Roger TERRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-0765
    District Court of Appeal of Florida, Fourth District.
    [March 8, 2017]
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Roger Terrell appeals his conviction and sentence for one count of sale of cocaine within 1,000 feet of a municipal park. Although Appellant raises several issues on appeal, we find merit in only one of his arguments, namely that the trial court reversibly erred by omitting one of the elements of the charged crime in the jury instructions.

At Appellant’s trial, an undercover narcotics officer testified that he gave an intermediary $20 to purchase cocaine from Appellant. Thereafter, the officer observed the intermediary walk to an apartment complex, knock on a specific door, and engage in a hand-to-hand exchange with Appellant. The intermediary then walked back to the unmarked patrol car where she handed the undercover officer a baggie containing what was later confirmed to be cocaine. Shortly thereafter, Appellant was arrested as he stood outside the apartment complex. Appellant’s theory of defense at trial was misidentification.

During the charge conference, the parties discussed the applicability of Florida Standard Jury Instruction (Criminal) 25.6. The instruction provides that in order to prove the crime of selling a controlled substance within 1,000 feet of a municipal park, the State must prove the following four elements:

1. (Defendant) [sold] ... a certain substance.
2. The [sale] ... took place in, on, or within 1,000 feet of ... [a state, county, or municipal park],
3. The substance was (specific substance alleged).
4. (Defendant) had knowledge of the presence of the substance.

Fla. Std. Jury Instr. (Crim.) 25.6. The trial court ultimately determined that because this was a case of “actual delivery” and Appellant did not argue by way of affirmative defense that he was unaware of the illicit nature of the substance, the “knowledge of the presence of the substance” was not a necessary element. Accordingly, over defense counsel’s objection, the court omitted the knowledge element from the instruction. Appellant was ultimately found guilty as charged and sentenced to seven years in prison followed by ten years of drug offender probation.

On appeal, Appellant argues that the trial court reversibly erred by removing the “knowledge of the presence of the substance” element from the jury instruction. Appellant maintains that although his primary defense was misidentification, by removing the knowledge element the trial court impermissibly reduced the State’s burden. The State acknowledges that “knowledge of the presence of the substance” is an element of the charged crime in this case, but nonetheless maintains that Appellant was not prejudiced by the given instruction in light of his defense of mis-identification. For that same reason, the State also argues that any error in this case was harmless. We disagree with the State.

Section 893.13, Florida Statutes provides that “a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance ... in, on, or within 1,000 feet of real property comprising a state, county, or municipal park.” § 893.13(1)(c), Fla. Stat. (2013). As this Court explained in Maestas v. State, “[s]ection 893.13 offenses are general intent crimes” and “[although knowledge of presence is not expressly required by the text of section 893.13, such knowledge has always been required in drug possession cases.” 76 So.3d 991, 994-95 (Fla. 4th DCA 2011). In other words, “knowledge of the presence of the substance” is a required element of the charged crime in this case, one which the State was required to prove regardless of Appellant’s defense of misidentification. See, e.g., Scott v. State, 808 So.2d 166, 171 (Fla. 2002), superseded on other grounds by § 893.101, Fla. Stat. (2002), as recognized in State v. Adkins, 96 So.3d 412 (Fla. 2012) (holding that because “the requirement that an instruction must be given does not depend on the defense espoused, ... an instruction [on a required element] must be given even when the defendant simply requires the State to prove its case and offers nothing by way of an affirmative defense”).

For the same reason, the error cannot be deemed harmless. As our supreme court long ago held:

It is an inherent and indispensable requisite of a fair and impartial trial under the protective powers of our Federal and State Constitutions as contained in the due process of law clauses that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence. Such protection afforded an accused cannot be treated with impunity under the guise of ‘harmless error.’

Gerds v. State, 64 So.2d 916, 916 (Fla. 1953) (emphasis added). This is especially true in situations like the present case where the omission of an element is brought to the trial court’s attention. See Scott, 808 So.2d at 170-71 (“Since the jury is entitled to be instructed on the elements of the offense, it cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant.”); see also Davis v. State, 839 So.2d 734, 735 (Fla. 4th DCA 2003) (holding that although a defendant’s theory of defense may be considered in analyzing whether the omission of a required element constitutes fundamental error, such considerations are irrelevant when reviewing preserved errors for harmless error).

Reversed and remanded for a new trial.

Gross and May, JJ., concur.


author: Ciklin, C.J.

text:
    FOUNTAINSPRING II HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit Corporation, Appellant, v. Ricardo O. VELIZ, Jagoda A. Veliz, Fountainspring Master Homeowners Association, Inc., and Unknown Tenant, Appellees.
    No. 4D15-3408
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]

      Deborah S. Sugarman of Kaye Bender Rembaum, PL, Pompano Beach, for appellant.
    No brief filed on behalf of appellees.
    Gerald Forman, Weston, for Sylvia Franklin-Brown.
   Ciklin, C.J.

Fountainspring II Homeowners Association, Inc. (“the association”) challenges an order vacating a final judgment of foreclosure and dismissing its foreclosure action for lack of jurisdiction. We find that the trial court erred in determining that it lacked jurisdiction and we therefore reverse.

In 2009, a mortgagee-bank that is not a party to the instant action brought an action to foreclose its interest in the property at issue. In connection with that suit, it recorded a notice of lis pendens. The association was named as a defendant in the bank’s suit.

In 2011, while the mortgage foreclosure action was pending, the association recorded two claims of lien for delinquent assessments and brought an action to foreclose the liens. A final judgment of foreclosure was entered in the association’s action and the property was sold to a third party purchaser. Sometime later, apparently having discovered the mortgage foreclosure action, the purchaser moved to set aside the judgment of foreclosure, certificate of title, and certificate of sale. The trial court determined that, due to the bank’s pending foreclosure action, it was without jurisdiction to have entered judgment in the association’s case, and it granted the purchaser’s motion and dismissed the action.

On appeal, the association argues that its claim of lien dates back to 1989, when its “Declaration of Covenants” was recorded, as the Declaration provides, “A lien is hereby imposed upon each Lot to secure the payment of all Assessments now or hereafter imposed .... Such lien shall relate back to and be effective from the date hereof .... ” The association contends that because its claim of lien predates the bank’s notice of lis pendens, its subsequent foreclosure action was not barred.

We agree with the association. Since its claim of lien dated back to its 1989 Declaration, its recorded interest predated the bank’s notice of lis pendens. Thus, the foreclosure action instituted to pursue the association’s claim is not precluded by the bank’s pending foreclosure action. Our holding is consistent with this court’s recent opinion in Jallali v. Knightsbridge Vill. Homeowners Ass’n, No. 4D15-2036, 211 So.3d 216, 2017 WL 34567 (Fla. 4th DCA Jan. 4, 2017), in which we held:

[T]he filing of a notice of lis pendens by a first mortgagee does not bar the foreclosure of an association’s subsequent lien for unpaid assessments against the ownei-, although that action is inferior to the foreclosure of the first mortgage, where the association’s subsequent lien was imposed under the association’s declaration of covenants recorded before the first mortgagee recorded its notice of lis pendens.

The trial court’s determination that it lacked jurisdiction was erroneous. We therefore reverse and remand for reinstatement of the final judgment.

Reversed and remanded.

Conner and Forst, JJ., concur.


author: PER CURIAM.

text:
    Horace YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5267.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2015.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, CLARK, and SWANSON, JJ., concur.


text:
    Joseph Michael DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-5068.
    District Court of Appeal of Florida, First District.
    March 2, 2015.
    Joseph Michael Davis, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. Hall v. State, 117 So.3d 478 (Fla. 1st DCA 2013).

WOLF, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Jimmy A. BALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0282.
    District Court of Appeal of Florida, First District.
    March 20, 2015.
    Jimmy A. Ball, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(c)(5)(A).

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


text:
    Timothy RANDOLPH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0815.
    District Court of Appeal of Florida, First District.
    March 20, 2015.
    Timothy Randolph, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, CLARK, and ROWE, JJ., concur.


text:
    Franklin JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0968.
    District Court of Appeal of Florida, First District.
    March 20, 2015.
    Franklin Jones, pío se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, CLARK, and ROWE, JJ., concur.


text:
    Reginald COPELAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0973.
    District Court of Appeal of Florida, First District.
    March 20, 2015.
    Reginald Copeland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Michael P. ADERHOLD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0977.
    District Court of Appeal of Florida, First District.
    March 20, 2015.
    Michael P. Aderhold, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Ned Carmer THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-1041.
    District Court of Appeal of Florida, First District.
    March 20, 2015.
    Ned Carmer Thompson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Fletcher SMITH III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-1050.
    District Court of Appeal of Florida, First District.
    March 20, 2015.
    Fletcher Smith III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ROBERTS, CLARK, and ROWE, JJ., concur.


text:
    Nathan Renner JUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-1073.
    District Court of Appeal of Florida, First District.
    March 20, 2015.
    Nathan Renner Jung, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ROBERTS, CLARK, and ROWE, JJ., concur.


text:
    Eddie Latroy HESTER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0019.
    District Court of Appeal of Florida, First District.
    April 14, 2015.
    Eddie Latroy Hester, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition alleging ineffective assistance of appellate counsel is denied on the merits.

ROBERTS, SWANSON, and BILBREY, JJ., concur.


text:
    Anthony MINCEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0746.
    District Court of Appeal of Florida, First District.
    April 14, 2015.
    Anthony Mincey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Campbell v. Lungstrum, 732 So.2d 437 (Fla. 1st DCA1999).

ROBERTS, SWANSON, and BILBREY, JJ., concur.


text:
    Jeremy Joseph HAMMILL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0995.
    District Court of Appeal of Florida, First District.
    April 14, 2015.
    Jeremy Joseph Hammill, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ROBERTS, SWANSON, and BILBREY, JJ., concur.


text:
    Larry B. MERRITT, Petitioner, v. STATE of Florida, Julie L. Jones, Florida Department of Corrections, Respondent.
    No. 1D14-3666.
    District Court of Appeal of Florida, First District.
    April 16, 2015.
    Larry B. Merritt, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

ROBERTS, SWANSON, and BILBREY, JJ., concur.


text:
    Craig SCOTT, Petitioner, v. STATE oF Florida, Respondent.
    No. 1D15-3238.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2015.
    Jason A. Cobb, Defuniak Springs, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the Order on Defendant’s Motion for Removal from Sex Offender Registry Requirements in Duval County Circuit Court case number 16-2000-CF-000495-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. See Fla. R. App. P. 9.141(c)(5)(D).

WETHERELL, ROWE, and RAY, JJ., concur.


text:
    WELLS FARGO BANK, N.A., as Trustee, on behalf of the Holders of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-12, Appellant, v. James OUSLEY a/k/a James E. Ousley, Jr., et al., Appellee.
    No. 1D15-2100.
    District Court of Appeal of Florida, First District.
    June 15, 2016.
    Rehearing and Rehearing En Banc Denied July 25, 2016.

      Christine Irwin Parrish and Gennifer L. Bridges of Burr & Forman, LLP, for Appellant.
    Jason J. Ricardo of Ricardo & Wayslik, PL, for Appellee.
   PER CURIAM.

In this foreclosure action, Wells Fargo Bank challenges the entry of an involuntary dismissal based on its failure to prove standing. Because the bank provided sufficient evidence to establish standing, we reverse.

Attached to Wells Fargo’s foreclosure complaint was a copy of the note and an allonge containing three endorsements: the first two were special endorsements to non-parties, and the third was a blank endorsement. At trial, Wells Fargo introduced the original note and an assignment of mortgage. A bank witness testified that the original note entered into evidence at trial was identical to the copy attached to the complaint. When Wells Fargo attempted to introduce a certified copy of the mortgage into evidence, the trial court excluded it as hearsay and lacking a foundation. Appellee James Ousley moved for involuntary dismissal, arguing that Wells Fargo failed to show standing at the inception of the suit because the only document demonstrating ownership of the noté was the assignment of mortgage, which indicated assignment in August 2013—well after the filing of the February 2010 complaint. The trial court granted the involuntary dismissal, relying on May v. PHH Mortgage Corp., 150 So.3d 247 (Fla. 2d DCA 2014) (finding no standing where bank could not prove it possessed the note, endorsed in blank, at the time it filed the complaint).

Our review of the sufficiency of a plaintiff’s evidence to prove standing to foreclose a mortgage is de novo. Ham v. Nationstar Mortg., LLC, 164 So.3d 714, 717 (Fla. 1st DCA 2015). A plaintiff has standing if it is the holder of the instrument. § 673.3011, Fla. Stat. (2010). The holder of a note with a blank endorsement is only required to show possession of the note at the time the complaint was filed; the mortgage is merely incident to the debt. U.S. Bank Nat’l Ass’n v. Knight, 90 So.3d 824, 826 (Fla. 4th DCA 2012); Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 85 (Fla. 5th DCA 2012) (“Since the lien follows the debt, Florida does not require a plaintiff to attach a written or recorded assignment of the mortgage in order to pursue a foreclosure action.”).

In Clay County Land Trust v. JPMorgan Chase Bank, N.A., 152 So.3d 83 (Fla. 1st DCA 2014), this Court held that a copy of a note with an undated allonge containing a blank endorsement was sufficient to establish standing as a matter of law, even though the bank did not have formal assignment of the mortgage at the time of filing the complaint. This holding has found support in the Fourth District as well. In Ortiz v. PNC Bank, National Association, 188 So.3d 923 (Fla. 4th DCA 2016), the Fourth District—citing to Clay County—held:

We recognize the fact that a copy of a note is [sic] attached to a complaint does not conclusively or necessarily prove that the Bank had actual possession of the note at the time the complaint was filed. However, if the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.

In this case, Appellant specifically addressed the concerns that Ortiz articulated by filing the original note in the same condition as the copy attached to the complaint into evidence at trial, providing testimony as to the same.

The trial court relied on May v. PHH Mortgage Corp., 150 So.3d 247 (Fla. 2d DCA 2014), to find Appellant lacked standing, but May is too dissimilar to apply to this case. In May, the bank attached a copy of a note and mortgage, but both had the name of the first mortgagor and did not have a blank endorsement or anything signifying a legal transfer to the bank. In this case, as in Clay County, the copy of the note attached to the complaint contained an allonge with a blank endorsement. A copy of a note with a blank endorsement attached to the complaint, with the original filed at trial, is enough to establish standing for the party that filed the complaint. Therefore, in line with Clay County and Ortiz, the involuntary dismissal for lack of standing was error.

We also find error in the exclusion of the publicly recorded mortgage as hearsay and without a foundation. A certified copy of a publicly recorded document is self-authenticating; thus, the objection to lack of foundation is without merit. § 90.902(4), Fla. Stat. (2015); see also Vaughan v. Broward Gen. Med. Ctr., 105 So.3d 569, 573 (Fla. 1st DCA 2012) (recognizing that a sufficient foundation to establish authenticity must be made before documents are admitted into evidence unless the documents are self-authenticating). Further, the mortgage should not have been excluded on hearsay grounds because it was a certified copy of a public record and a record of a document purporting to establish or affect an interest in property. See §§ 90.803(8) & (14), Fla. Stat. (2015); see also Sproule v. State, 927 So.2d 46, 48 (Fla. 4th DCA 2006) (holding that a certified copy of a driving record falls under the public record exception); Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264, 269 (Fla. 4th DCA 1971) (noting that a certified copy of a certificate of title would be admissible under the public records exception). Both objections should have been overruled, but an error in an eviden-tiary ruling does not necessarily constitute harmful error. Rather, the test for harmful error is whether a different result may have been reached without the error. Katos v. Cushing, 601 So.2d 612, 613 (Fla. 3d DCA 1992). Given that a mortgage is a crucial part of a foreclosure proceeding, we conclude that its exclusion was not harmless error.

REVERSED and REMANDED.

ROBERTS, C.J., MAKAR and OSTERHAUS, JJ., concur.


author: CRENSHAW, Judge.

text:
    Lawrence STROMINGER and Adriana Strominger, Appellants, v. The BANK OF NEW YORK, as Trustee for the Certificateholders of the CWABS Inc. Asset-Based Certificates, Series 2006-IMI, Appellee.
    No. 2D15-2788.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2016.

      Robert E. Biasotti and Christine R. O’Neil of Biasotti and Associates, St. Pe-tersburg, for Appellants.
    Allyson L. Smith of Albertelli Law, Tampa, for Appellee.
   CRENSHAW, Judge.

Lawrence and Adriana Strominger appeal the final judgment of mortgage foreclosure entered against them and in favor of the Bank of New York, as Trustee for the Certificateholders of the CWABS Inc. Asset-based Certificates, Series 2006-IMI (the Bank). Because the Bank failed to prove it had standing to foreclose at the inception of the case, we reverse and remand for dismissal.

This court employs a de novo standard of review to determine whether a party has standing to bring a mortgage foreclosure action. St. Clair v. U.S. Bank Nat’l Ass’n, 173 So.3d 1045, 1046 (Fla. 2d DCA 2015). A plaintiff seeking to foreclose must prove it had standing at the time the foreclosure complaint was filed. Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). “A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note.” Id.

At a February 2015 trial, the Bank of New York relied on two documents to prove it had standing. The first document was an assignment that the trial court previously determined was fraudulent and “not entitled to introduction in evidence for any purpose.” The second document was a bailee letter dated October 6, 2005. The bailee letter acknowledges an agreement between Countrywide Home Loans and Impac Funding, and it identifies a wiring account number to the Bank of New York, where Countrywide has an account. Both documents fail to prove that the Bank had possession of the note at the time it filed the original complaint in November 2007. Because the Bank failed to prove it had standing to enforce the note at the time the initial complaint was filed, we reverse the final judgment of mortgage foreclosure and remand for dismissal.

Reversed and remanded.

CASANUEVA and KELLY, JJ., Concur.


author: ROTHENBERG, J.

text:
    MIAMI-DADE COUNTY EXPRESSWAY AUTHORITY, Petitioner, v. ELECTRONIC TRANSACTION CONSULTANTS CORPORATION, Respondent.
    No. 3D16-2899
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.
    Holland & Knight LLP, and Rodolfo Sorondo, Jr. and Christopher N. Bellows, for petitioner.
    Vezina, Lawrence & Piscitelli, P.A., and Michael Piscitelli and Bradley S. Copen-haver (Ft. Lauderdale), for respondent.
    Before SUAREZ, C.J., and ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

Miami-Dade County Expressway Authority (“MDX”) seeks a writ of prohibition disqualifying the trial judge and an order remanding the case to the circuit court for the reassignment of the case to another judge. Because we conclude that the motion to disqualify the trial judge filed below was both timely and legally sufficient, disqualification is required. See Wolfson v. Wolfson, 159 So.3d 394, 394 (Fla. 3d DCA 2015) (finding that disqualification is required where the trial judge’s comments suggested that she had prejudged the case); Wade v. Wade, 123 So.3d 697, 698 (Fla. 3d DCA 2013) (holding that disqualification is required where the trial court announced its ruling before hearing all of the evidence); Cummings v. Montalvo, 135 So.3d 389, 389 (Fla. 5th DCA 2014) (finding that disqualification was required because the judge’s statements reflected that she had prejudged a party’s credibility); Amato v. Winn Dixie Stores/Sedgwick James, 810 So.2d 979, 980-83 (Fla. 1st DCA 2002) (finding that disqualification was required where the trial court had issued an order on the merits before all of the evidence had been submitted, even though the trial court subsequently vacated the order). We, therefore, grant the petition and remand for reassignment of the case to another judge.

Petition granted.


author: B.L. THOMAS, J.

text:
    James D. BOYLE, Appellant, v. JA CUMMINGS, INC./FARA, Appellees.
    CASE NO. 1D16-3076
    District Court of Appeal of Florida, First District.
    Opinion filed February 16, 2017.
    Rehearing Denied March 29, 2017

      Bill McCabe, Longwood, and Joey D. Oquist, St. Petersburg, for Appellant.
    H. George Kagan, of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   B.L. THOMAS, J.

In this workers’ compensation case, Appellant challenges an order of the Judge of Compensation Claims (JCC) denying all requested benefits. In five issues on appeal, Appellant challenges the exclusion of evidence and the rejection of his argument based on the “120-day rule,” section 440.20(4), Florida Statutes. Although we affirm without further comment the exclusion of the authorized treating providers’ medical records, we agree with Appellant that exclusion of the adjuster’s deposition was error, and conclude that the error was not harmless, as the evidence affects the 120-day rule analysis. Accordingly, we remand for further proceedings.

Appellant was injured, and Appellees Employer-Carrier authorized multiple health care providers to treat Appellant, who was unable to perform his regular job duties and was eventually terminated. He later filed petitions for benefits seeking temporary indemnity benefits, neck surgery as recommended by an authorized doctor, and penalties, interest, costs, and attorney’s fees.

Appellees contested those benefits and obtained an independent medical examination, which resulted in a medical opinion that the major contributing cause of Appellant’s pain was due to preexisting conditions. Appellant then filed four “Notices of Filing” whereby he submitted medical records from the four authorized treating providers; all four notices were served on Appellees. Thereafter, the JCC appointed an expert medical advisor, who also opined that preexisting conditions were the major contributing cause of Appellant’s need for surgery.

The expert medical advisor was not charged with determining the identity of the compensable injury, but in deposition added that the only injury the work accident caused was a temporary exacerbation of a preexisting condition. Appellant then argued that Appellees were legally es-topped from asserting a major contributing cause defense, because Appellees had failed to deny compensability, except a temporary exacerbation, within 120 days of Appellees initially providing benefits.

Just before the final hearing, Appellant deposed Appellees’ adjuster. Appellees objected to admission of the deposition under Florida Administrative Code Rule 60Q-6.113(8), which prohibits discovery within ten calendar days of the final hearing “absent prior approval ... for good cause shown” (or by agreement of the parties). Appellant alleged, however, that Appellees had balked at earlier attempts to schedule the adjuster’s deposition. The objection was sustained.

We reverse the exclusion of the adjuster’s deposition, because the JCC did not correctly consider prejudice, of which good cause is but one component. The JCC mentioned good cause orally during the hearing, and in the written final order and order on rehearing noted that Appellant had not sought permission to take the adjuster’s deposition beyond the rule’s deadline. The JCC further noted that he had not stricken the "witness, but only that particular deposition, suggesting Appellant could have subpoenaed the adjuster to appear at the hearing.

But the JCC’s consideration of prejudice resulting from exclusion of the deposition is off the mark, as the JCC should primarily have considered prejudice to the objecting party if the evidence was admitted, not the party seeking to introduce the evidence. In addressing a JCC’s refusal to allow a claimant to depose doctors after the employer-carrier refused to cooperate with scheduling, this court stated:

Although this court decidedly does not condone violations of deadlines contained in pretrial orders (an occurrence not apparent in this case), in workers’ compensation proceedings, even the testimony of undisclosed witnesses can be allowed into evidence upon a case-specific determination as to whether admission of the evidence would result in actual procedural prejudice to the objecting party.
The exclusion of evidence is a drastic remedy, which should occur only in the most compelling circumstances, and only after the JCC has made a case-specific determination as to whether the admission of the evidence would result in actual procedural prejudice to the objecting party.... [T]he JCC quashed depositions set by Claimant, and denied all of Claimant’s attempts to present medical testimony without considering any discretionary factors such as prejudice.

Burgess v. Buckhead Beef, 15 So.3d 25, 27 (Fla. 1st DCA 2009) (citations omitted).

The JCC’s interpretation that the rule would require prior approval (or at least a prior request for late discovery) was error, given both the undergirding principle that relevant evidence should be considered by the factfinder and the intent of the Workers’ Compensation Law that cases be decided on their merits. See § 90.402, Fla. Stat. (“All relevant evidence is admissible, except as provided by law.”); § 440.015, Fla. Stat. (“It is the specific intent of the Legislature that workers’ compensation cases shall be decided on their merits.”); Burgess, 15 So.3d at 27 (“Here, the JCC’s exclusion of testimony from properly disclosed witnesses, based on a per se application of his interpretation of the administrative rules, is ... in direct conflict with the specific legislative intent of the Florida Workers’ Compensation Law.”).

Furthermore, exclusion of the adjuster’s deposition is not harmless here, because it contained testimony that Appellees had accepted “the cervical spine” or “the neck” as the compensable injury. Such testimony arguably goes directly to Appellant’s assertion that Appellees accepted compensability of his entire cervical condition, thus, Appellees were precluded from relying on the expert medical advisor’s opinion that part (or all) of the cervical condition preexisted the industrial accident. See generally Special v. West Boca Med. Ctr., 160 So.3d 1251, 1253 (Fla. 2014) (holding that to demonstrate harmless error, beneficiary of error must prove “no reasonable possibility that the error ... contributed to the verdict”); Jackson v. Merit Elec., 37 So.3d 381 (Fla. 1st DCA 2010) (holding that stipulation that compensable injury included “the back” estopped employer-carrier from challenging industrial causation of back injury). Because the JCC’s rejection of the 120-day rule argument was based on his having accepted the expert medical advisor’s opinion that the compensable injury was solely a temporary exacerbationan opinion that might have been legally precluded here we remand the case for the JCC to reconsider the 120-day rule issue, in light of the adjuster’s deposition.

Given the remand for the JCC to consider the adjuster’s deposition, we do not reach the points on appeal not addressed in this opinion. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

OSTERHAUS and BILBREY, JJ., CONCUR.

      . The JCC did not make precisely clear what specific event he thought the approval or request should be made prior to—the taking of the deposition, or the ten-day period, or some other date or event.


author: EDWARDS, J.

text:
    BOARDWALK AT DAYTONA DEVELOPMENT, LLC, Appellant, v. Panormitis K. PASPALAKIS, Eleny Lisa Psaros, and A.L. & P. Corporation, Appellees.
    Case No. 5D15-1944
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    David A. Monaco, John N. Bogdanoff, and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Amy Brigham Boulris, Lauren Vickroy Purdy, and Jonathan Kaskel, of Gunster, Yoakley & Stewart, P.A., Miami, for Ap-pellees.
   ON MOTION FOR REHEARING

EDWARDS, J.

Panormitis K. Paspalakis, et al.’s (“Ap-pellees”) motion for rehearing is denied because it is inappropriate and meritless. First, Appellees • assert that this court overlooked the facts, authorities, and arguments set forth in its brief and the record on appeal. We did not. Appellees’ “motion does what [Florida Rule of Appellate Procedure] 9.330(a) proscribes; it re-argues the merits of the case.” Lawyers Title Ins. Corp. v. Reitzes, 631 So.2d 1100, 1100 (Fla. 4th DCA 1993) (citations omitted). “It appears that counsel are utilizing the motion for rehearing and/or clarification as a last resort to persuade this court to change its mind or to express them displeasure with this court’s conclusion.” Id. at 1101. “This is not the purpose of [r]ule 9.330. It should be noted that the filing of [r]ule 9.330 motions should be done under very limited circumstances, it is the exception to the norm.” Id. (footnote omitted). “Motions for rehearing are strictly limited to calling an appellate court’s attention'—without argument—to something the court has overlooked or misapprehended. ‘The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy.’ ” Cleveland v. State, 887 So.2d 362, 364 (Fla. 5th DCA 2004) (quoting Goter v. Brown, 682 So.2d 155, 158 (Fla. 4th DCA 1996)).

Appellees also misuse their motion by essentially seeking leave to amend their pleadings post-judgment and post-appeal. In the trial court, Appellees filed a single count counterclaim that set forth a single cause of action, and pursued a single remedy: specific performance. After we determined that specific performance is not available to Appellees, they ask for a remand so that they can pursue alternative remedies that they either abandoned or never pled below. We acknowledge Appel-lees’ position that it seems unfair for them to not get the full benefit of their bargain. However, Appellees freely made their choice, during lengthy litigation, to not pursue different causes of action or other remedies such as money damages, reformation, or rescission. Appellees cite to no decision where a party maintained a single count complaint for specific performance, lost on the merits, and then was allowed to return to the trial court to assert alternative claims for relief arising out of the same transaction. “No new ground or position may be assumed in a petition for rehearing.” Id. (citations omitted). “Here, [Appellees] impermissibly attempt[ ] to raise a new argument in [their] ... petition for rehearing. This court need not entertain new argument or consider additional authority cited in support thereof.” Id. There simply is no justification or basis for granting the relief Appellees request for leave to amend for the first time on rehearing.

MOTION FOR REHEARING DENIED.

SAWAYA and PALMER, JJ., concur.


text:
    D.P.O., A Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-0452
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017
    Rehearing Denied March 21, 2017
    Daniel Wehking, Assistant Regional Counsel, of the Office of the Criminal Conflict and Civil Regional Counsel, Melbourne, and Jeffrey Deen, Regional Counsel, of the Office of the Criminal Conflict and Civil Regional Counsel, Casselberry, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

D.P.O., a child, petitions this court for a writ of habeas corpus, arguing she is being illegally held in nonsecure detention based on the trial court’s February 2, 2017 order placing her on electronic monitoring until March 30, 2017. She also claims she was illegally ordered to have no contact with the victim.

Section 985.26(3), Florida Statutes (2016), provides that a child may not be held in secure or nonsecure detention care for more than 15 days following the entry of an order of adjudication. Electronic monitoring is considered to be a form of nonsecure detention under section 985.03(18)(b), Florida Statutes (2017). Inasmuch as the order placing D.P.O. on electronic monitoring for more than 15 days following her adjudicatory hearing is unauthorized absent a delay pursuant to section 985.26(4), Florida Statutes, we grant the writ and remand for entry of an order striking electronic monitoring.

PETITION GRANTED.

BERGER, WALLIS and LAMBERT, concur.

      . Section 985.26(4) provides:
      The time limits in subsections (2) and (3) do not include periods of delay resulting from a continuance granted by the court for cause on motion of the child or his or her counsel or of the state. Upon the issuance of an order granting a continuance for cause on a motion by either the child, the child’s counsel, or the state, the court shall conduct a hearing at the end of each 72-hour period, excluding Saturdays, Sundays, and legal holidays, to determine the need for continued detention of the child and the need for further continuance of proceedings for the child or the state.
      Nothing in the trial court’s order requiring D.P.O. be placed on electronic monitoring provided for a 72-hour review hearing to determine the need for continued detention.

      . We find no merit in D.P.O.’s claim regarding the no-contact order.


author: LEWIS, J.

text:
    Scott CLEVELAND and Stephanie Cleveland, Appellants, v. CROWN FINANCIAL, LLC, Appellee.
    CASE NO. 1D16-3981
    District Court of Appeal of Florida, First District.
    Opinion filed March 1, 2017.

      Jeffrey U. Beaverstock and Daniel L. Burkard of Burr & Forman, LLP, Mobile, AL, for Appellants.

      Robert J. Powell of Clark Partington, Pensacola, for Appellee.
   LEWIS, J.

Appellants, Scott and Stephanie Cleveland, appeal the trial court’s Order Granting New Trial and Relief from Judgment, arguing that the court erred by granting a new trial based on newly discovered evidence upon finding that the evidence could not have been discovered by the exercise of due diligence. For the following reasons, we agree with Appellants and, therefore, reverse the trial court’s order.

Background

In June 2013, Appellee, Crown Financial, LLC, filed against Appellants a Mortgage Foreclosure Complaint, alleging that the parties executed in March 2010 a Mortgage and a Profit Sharing Agreement that conveyed to Appellee the subject property, Appellants were in default, and Appellee was entitled to foreclosure on the property and to $418,972,22 in principal pursuant to those documents. At the non-jury trial, Chad Tribe, a member and manager of Appellee, testified in part that his responsibilities included reviewing the records relating to the Profit Sharing Agreement and Mortgage to determine the amounts owed and that he had reviewed the records the day before trial. Tribe testified that while the Profit Sharing Agreement limited the outstanding advances to $300,000, Appellee increased the loan advance to $500,000. When asked if the Profit Sharing Agreement was amended to reflect the increased advance, Tribe responded, “I do not recall. I did not see a document in file, though, that stated that,” and he testified that there was no document before the trial court that memorialized the increase in advances.

The parties disputed the amount of the loans that was secured. Appellee contended that the future advance^ clause of the Mortgage secured anything over $300,000 up to $600,000, while Appellants argued that the Profit Sharing Agreement secured advances only up to $300,000 and “if anything, the language in the mortgage itself is conflicting,” -with the former controlling. In its Final Judgment, the trial court determined that Appellee was entitled to $419,069.64 in principal, thereby implicitly agreeing with Appellee on the issue. On appeal, we reversed and remanded for the recalculation of Appellants’ indebtedness upon concluding that the Profit Sharing Agreement was controlling and limited the secured advances to $300,000, and we noted that “the Agreement, which provided that the Mortgage at issue would secure Appellants’ obligations, was not amended to reflect a $500,000 maximum advance amount.” See Cleveland v. Crown Fin., LLC, 183 So.3d 1206, 1210 (Fla. 1st DCA 2016).

On remand, the trial court entered an Amended Final Judgment pursuant to this Court’s mandate. Appellee then filed an “Amended and Restated Motion for Relief/Motion for New Trial” “from the amended final judgment pursuant to F.R.C.P. 1.540,” wherein it asserted in part as follows:

5. Subsequent to the trial, due to excusable neglect and newly discovered evidence, it was revealed that the parties did indeed enter into a written agreement for an additional advance for an amount not to exceed $500,000.00 for this transaction. ...
6. This evidence was something that was lost/misplaced and forgotten due to simple human error. In and of itself, it is critical evidence in this matter and simply because of human error, it was not discovered or remembered until after the trial. ...
7. The document was apparently in another file or a sea of documents and merely overlooked and forgotten.
As a result, Plaintiff requests] relief in the manner of a New Trial in light of the new evidence.

The alleged newly discovered evidence was an Agreement for Additional Advance, which was dated September 2010, was signed by Chad Tribe and Appellant Scott Cleveland, and stated in part, “Pursuant to the Profit Sharing Agreement between the parties ..., ‘the aggregate amount outstanding at any one time shall never exceed the sum of $800,000.00.’ Crown agrees to increase this amount to $500,000.00 for this one-time transaction that is currently booked.” In support of Appellee’s motion, Tribe submitted an affidavit, attesting in part that “[t]he agreement for additional advance was not located in the file maintained by [Appellee], but a copy was subsequently located in the possession of the broker” and “[i]n its most simple terms, I made a simple human error mistake regarding an important document.”

Appellants opposed the motion, arguing that the Agreement for Additional Advance did not constitute newly discovered evidence because Appellee failed to establish that it could not have timely discovered it by due diligence and it was merely forgotten evidence newly remembered. The trial court entered an Order Granting New Trial and Relief from Judgment, wherein it granted “[Appellee’s] motion for new trial and alternatively, its motion for relief from judgment” upon finding that “[the Agreement for Additional Advance], located after the trial in the hands of the plaintiffs broker, constitutes new evidence discovered after the trial that could not have been discovered before the trial by exercise of due diligence ....” This appeal followed.

Analysis

“ ‘The importance of finality in any justice system ... cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end.’ ” Balmoral Condo. Ass’n v. Grimaldi, 107 So.3d 1149, 1151 (Fla. 3d DCA 2013) (quoting Witt v. State, 387 So.2d 922 (Fla. 1980)). “Reflecting a balance between the need for finality and the interest of allowing appropriate corrections to final orders, rules 1.530 and 1.540 [of the Florida Rules of Civil Procedure] provide two very different approaches for judges to revisit final judgments.” Id. A trial court’s ruling on a rule 1.540 motion is reviewed for an abuse of discretion. Travelers Commercial Ins. Co. v. Harrington, 187 So.3d 879, 884 (Fla. 1st DCA 2016); see also Leach v. Salehpour, 19 So.3d 342, 344 (Fla. 2d DCA 2009) (explaining the same and that a ruling on a rule 1.530 motion is likewise reviewed for an abuse of direction, unless it involves a pure question of law).

Florida Rule of Civil Procedure 1.540(b) provides in relevant part that pursuant to a timely filed motion, a trial court may relieve a party from a final judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.” “[R]ule 1.540(b), however, ‘does not have as its purpose or intent the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence.’ ” Hooks v. Quaintance, 71 So.3d 908, 911 (Fla. 1st DCA 2011) (citation omitted). “The necessary finality of litigation prohibits courts from giving parties a second chance at proof they had available in the first instance but overlooked or chose not to use.” Id. “Relief from judgment based on newly discovered evidence claim should be seldom granted and only when the party seeking relief has exercised due diligence.” Id. “It is the movant’s burden under rule 1.540(b) to establish the exercise of due diligence. It is not sufficient to merely show that the evidence was not known or discovered by counsel prior to trial. Rather, the movant must make his or her vigilance apparent.” Brown v. McMillian, 737 So.2d 570, 571 (Fla. 1st DCA 1999); see also Junda v. Diez, 848 So.2d 457, 458 (Fla. 4th DCA 2003) (explaining that relief from judgment based on newly discovered evidence should be granted seldom and only when the party seeking relief exercised due diligence, and concluding that the trial court abused its discretion by granting the appellee’s 1.540(b) motion based on newly discovered evidence “[g]iven the length of time the case was pending, the fact that [appellee] knew of the existence of the necessary documentation before the initial trial, the lack of the exercise of due diligence by [appellee]”).

Florida Rule of Civil Procedure 1.530(a) states in pertinent part that “[o]n a motion for a rehearing of matters heard without a jury ..., the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.” A newly discovered evidence claim may also be the basis for relief pursuant to rule 1.530, but a rehearing or new trial based on newly discovered evidence is warranted only where the evidence was discovered after the trial and could not have been discovered before the trial by the exercise of due diligence. Mistretta v. Mistretta, 31 So.3d 206, 208 (Fla. 1st DCA 2010). Forgotten evidence does not constitute newly discovered evidence. See Resort of Indian Spring, Inc. v. Indian Spring Country Club, Inc., 747 So.2d 974, 978 (Fla. 4th DCA 1999) (involving a rule 1.530 motion); Holmes v. Holmes, 578 So.2d 323, 325 (Fla. 4th DCA 1991) (entailing a rule 1.540 motion).

Further, courts generally do not provide parties with an opportunity to retry their ease upon a failure of proof. Correa v. U.S. Bank N.A., 118 So.3d 952, 956 (Fla. 2d DCA 2013) (citing cases refusing to give a party a second bite at the apple and concluding, “Counsel for U.S. Bank should have been fully aware of its burden to reestablish the lost note and fully prepared to meet that burden, yet it made minimal effort to address this issue even after prodding by the trial court. There is simply no reason to afford it a second opportunity to prove its case”); see also Allard v. Al-Nayem Int’l, Inc., 59 So.3d 198, 202 (Fla. 2d DCA 2011) (stating that a party’s failure to prove damages is an improper ground for rehearing because ‘[r]ehearing is not intended as a device to present additional evidence that was available, although not presented, at the original trial,’ ” and concluding that the trial court improperly granted the appellee’s motion for rehearing where “[the appellee] persisted that its interpretation of Burton was the only correct measure of damages, despite considerable debate below about the correct measure of damages and [the appellant’s] argument that improvements must be considered. [The appellee] ‘consciously elected to proceed upon ... what was ultimately determined to be an invalid theory of damages’ ”). Cf. Gulf Eagle, LLC v. Park E. Dev., Ltd., 196 So.3d 476, 477 (Fla. 2d DCA 2016) (explaining that in order to reopen a case, a party must generally establish that the presentation of the evidence will not unfairly prejudice the opposing party and the reopening will serve the best interests of justice, and reversing the order vacating a deficiency judgment that had been entered against the appellees following a bench trial upon concluding that both factors were met where the trial court improperly denied the appellees’ motion for directed verdict based on an incorrect finding, as a result of which the appellant could not move for a rehearing to present additional evidence, and emphasizing that the appellant could not be penalized for its good faith reliance on the trial court’s ruling).

Turning to the case before us, the trial court granted Appellee’s rule 1.540 motion upon finding that the Agreement for Additional Advance constitutes newly discovered evidence that could not have been discovered before the trial with the exercise of due diligence. As Appellants argue, however, Appellee failed to meet its burden of establishing that it could not have discovered the document with the exercise of due diligence. In fact, Appellee did not present any evidence of—or even allege—its exercise of due diligence and instead claimed only that the document was “lost/misplaced and forgotten due to simple human error”/“merely overlooked and forgotten.” As such, the Agreement for Additional Advance does not constitute newly discovered evidence, and the trial court abused its discretion in finding otherwise.

Apparently recognizing the trial court’s error, Appellee does not dispute Appellants’ contention and instead argues that we should affirm pursuant to the tipsy coachman doctrine. Appellee claims that its motion should be construed as seeking relief under rule 1.530 and the granting of relief pursuant to that rule was required because it does not result in any undue prejudice to Appellants, it promotes the interests of justice, and it avoids an inequitable windfall to Appellants. Appellee primarily relies on Gulf Eagle, LLC in support of its argument, but that reliance is misplaced. Even if Appellee’s motion is construed as seeking relief under rule 1.530, the fact remains that the trial court’s granting of relief was based upon its erroneous finding that the Agreement for Additional Advance constitutes newly discovered evidence. Additionally, unlike in Gulf Eagle, LLC, Appellee was not relying on an erroneous ruling by the trial court, but upon its own strategy that proved to be unsuccessful. Appellee made a strategic decision in arguing throughout the proceeding, until the conclusion of the first appeal, that any advance over $300,000 was secured by the future advances clause of the Mortgage. When this Court rejected Appellee’s theory and remanded for the recalculation of Appellants’ indebtedness, Appellee changed course of action and sought the trial court’s consideration of the Agreement for Additional Advance to prove that its entitlement was not capped at $300,000. Appellee even admits such a change in strategy by arguing on appeal as follows:

[Appellee] filed this foreclosure action with the mistaken belief that there was no agreement amending the maximum credit limitation clause in the Profit Sharing Agreement. And [Appellee] con-eluded such agreement would be unnecessary for the Trial Court to consider anyway for various legal reasons including that the Mortgage secures additional advances from [Appellee] up to a maximum of twice the principal amount of debt originally loaned.,. Once this Court reversed the Trial Court in Cleveland—disapproving [Appellee’s] reliance on the future advance clause in the Mortgage to secure amounts exceeding $300,000.00—it became necessary for [Appellee] to establish that the parties amended the maximum limitation clause in the Profit Sharing Agreement, written evidence of which [Appellee] had fortunately discovered after trial.

Appellee chose to rely on that strategy even though the amount of loans secured was in dispute, Appellants disagreed with its interpretation of the Profit Sharing Agreement and Mortgage, and Tribe—the same person who in 2010 signed the newly offered document—was asked at trial about any amendments to the Profit Sharing Agreement to reflect the increased advance. Given such, contrary to Appellee’s argument, the reopening of the case would not serve the best interests of justice and would provide Appellee with the type of second opportunity to prove its case that is condemned by the courts.

Conclusion

For the foregoing reasons, we reverse the trial court’s Order Granting New Trial and Relief from Judgment.

REVERSED.

WOLF and WETHERELL, JJ., CONCUR.

      . During trial, Tribe testified that most of the communication between the parties had gone through a broker who introduced Appellee to Appellant Scott Cleveland.

      . The tipsy coachman doctrine allows an appellate court to affirm a trial court that reaches the right result for the wrong reasons if there is any basis in the record that would support the judgment. Robertson v. State, 829 So.2d 901,906 (Fla. 2002).


author: SALTER, J.

text:
    The BANK OF NEW YORK MELLON, etc., Appellant/Cross-Appellee, v. Theresa PEARSON, et al., Appellees/Cross-Appellants.
    No. 3D15-331
    District Court of Appeal of Florida, Third District.
    Opinion filed March 1, 2017

      Kass Shuler and Melissa A. Giasi (Tampa); Aldridge Pite and Matthew A. Ciccio (Delray Beach), for appellant/cross-appel-lee.
    Ice Appellate and Thomas Erskine Ice (Royal Palm Beach), for appellees/cross-appellants.
    Before SALTER, LOGUE and SCALES, JJ.
   SALTER, J.

In this appeal and cross-appeal from a final judgment in a residential mortgage foreclosure case, the appellant (“Bank”) appeals: the involuntary dismissal of its foreclosure action with prejudice; the trial court’s unsolicited ruling that the action would be amended to constitute a suit on the companion promissory note; the cancellation of the note; and the entry of judgment on the note against the borrower/appellee, Theresa Pearson. Ms. Pearson’s husband, Ronald Pearson, filed a notice of cross-appeal from the same final judgment.

In the main appeal, we reverse the final judgment and remand the case for further proceedings. Here, as in Deutsche Bank National Trust Co. ex rel. LSF MRA Pass-Through Trust v. Perez, 180 So.3d 1186 (Fla. 3d DCA 2015), and Nationstar Mortgage, LLC v. Castro, 193 So.3d 69 (Fla. 3d DCA 2016), the trial court abused its discretion in excluding the Bank’s witnesses as a sanction for late disclosure and then dismissing the foreclosure complaint when the Bank was unable to present its case.

A dismissal as a sanction for a discovery violation is “an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard .... ” Ham v. Dunmire, 891 So.2d 492, 495 (Fla. 2004); Toll v. Korge, 127 So.3d 883, 887 (Fla. 3d DCA 2013). The required findings are set out in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993).

To strike a witness as a sanction for failure to comply with pre-trial disclosures requires a determination that calling the undisclosed witness will prejudice the opponent. Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla. 1981). No such determination was made in this case, making the sanction an abuse of discretion. See Preudhomme v. Bailey, 4D15-2831, 211 So.3d 127, 131-32, 2017 WL 436370 at *3 (Fla. 4th DCA Feb. 1, 2017) (finding that court erred in dismissing complaint with prejudice as sanction in absence of findings). The final judgment must be reversed and remanded for a trial de novo.

Regarding the cross-appeal, the erroneous determination by the trial court that the complaint would be amended to allege a cause of action on the promissory note— an amendment neither sought by the Bank, set forth in the complaint, or proven—must be reversed as a consequence of our reversal of the final judgment on other grounds. We observe in passing, however, that the cross-appeal was improperly filed by Ronald W. Pearson and is subject to dismissal.

The final judgment Mr. Pearson sought to cross-appeal did not implicate any of his interests. He is not liable for anything under the judgment on the note (which he did not sign), and the mortgage foreclosure against him was dismissed in that judgment. A party cannot appeal a wholly favorable order. Colonnade 101 SE, Inc. v. Cordero, 194 So.3d 446, 448 n.1 (Fla. 3d DCA 2016). See Philip J. Padovano, Fla. Appellate Practice § 10:4, Entitlement to review—Standing (2016 ed.). Theresa Pearson might have been substituted in his stead if a motion in proper form had been filed. Fla. R. App. P. 9.040(d).

The final judgment is reversed and remanded to the circuit court for a trial de novo. Our reversal also disposes of the cross-appeal.

      . The Bank confessed error on the unsought amendment and resultant judgment for thirty-four monthly payments on the note.


author: LAGOA, J.

text:
    Cecil ROLLE, Appellant, v. COLD STONE CREAMERY, INC., et al., Appellees.
    No. 3D13-1821
    District Court of Appeal of Florida, Third District.
    Opinion filed March 1, 2017.

      Jonathan P. Stevens (Gainesville); Melanie C. Hapner (Fort Lauderdale), for appellant.
    Zarco Einhorn Salkowski and Brito, P.A., and Robert M. Einhorn, Alejandro Brito, Christopher Wiesman, and Alaina B. Siminovsky, for appellees The NIACCF, Inc., Robert Zarco, Esq., Zarco Einhorn Salkowski and Brito, P.A., Rodolfo Puig, Frank Caperino, and Edward Reesman; Kubicki Draper and Caryn L. Bellus and Bretton C. Albrecht, for appellees Cold Stone Creamery, Inc., The Kahala Corp., and Daniel Beem.
    Before LAGOA and FERNANDEZ, JJ., and SHEPHERD, Senior Judge.
   LAGOA, J.

Cecil Rolle (“Rolle”) appeals from orders dismissing his First Amended Complaint against Cold Stone Creamery, Inc. (“Cold Stone”), the Kahala Corp. (“Kahala”), the National Independent Association of Cold Stone Creamery Franchisees, Inc. (“NIACCF”), Robert Zarco, Esq. (“Zar-co”), Zarco Einhorn Salkowski & Brito, P.A. (“Zarco P.A.”), Daniel Beem, Rodolfo Puig, Frank Caperino, and Edward Rees-man (collectively, “Appellees”), with prejudice. We reverse the two orders of dismissal with prejudice because the trial court went outside the four corners of the complaint and its attachments in granting the Appellees’ motions to dismiss.

I. FACTUAL AND PROCEDURAL HISTORY

In 2010, Rolle, a former Cold Stone franchisee, participated in a CNBC documentary titled, “Behind the Counter: The Untold Story of Franchising” (the “Documentary”). Cold Stone declined an invitation to participate in the Documentary. The Documentary began airing on December 16, 2010.

In response to the Documentary airing, Cold Stone retained Zarco to represent the Cold Stone Creamery Franchisee National Advisory Board (“NAB”) and NIACCF. On December 23, 2010, Zarco sent a letter (the “Letter”) to David Sternlicht, media counsel for CNBC. In the Letter, Zarco chastised CNBC for broadcasting the Documentary and stated that Rolle made false and defamatory statements about Cold Stone in the Documentary. Zarco also defended Cold Stone’s business practices against Rolle’s claims and demanded that CNBC stop broadcasting the Documentary. The Letter did not explicitly threaten litigation against CNBC or Rolle, but concluded as follows:

For the numerous reasons expressed herein, we demand that you immediately discontinue rebroadcasting the show. Please contact me to discuss what appropriate remedy can be crafted to correct the damage that has already been done. Because of the urgency of this matter, I request that you call me over the weekend on my personal cell phone, REDACTED, as time is of the essence.

■ Of significance to this appeal, the Letter contained a number of comments critical of Rolle’s business practices and ethics that Rolle alleges are false and defamatory:

• “Evidently, Rolle was not a good businessman or ethical at that. He ran several personal expenses through his business, including but not limited to expensing over $1,000 on University of Florida football tickets, knowing full well that it violated federal tax laws and was contrary to the mandates of the Internal Revenue Code.”
• “Despite such knowledge, Rolle also paid medical bills using funds generated by his Cold Stone business for an injured employee because he refused to carry worker’s compensation insurance.”
• “Moreover, after Rolle’s Cold Stone franchises failed, he opened his own ice cream location in the same location as one of his former Cold Stone businesses and named it ‘Frost Top Creamery,’ in clear violation of the terms of his franchise agreement with Cold Stone.”
• “Then, on the show, CNBC and Rolle make several false and defamatory statements regarding several expenses, seemingly connecting these expenses to the ‘hidden expenses’ allegedly incurred by the franchisees.”
• “In addition, Rolle states that Cold Stone requires its franchisees to purchase equipment from a company that it controls.”

In addition to sending the Letter to CNBC, Zarco also published the Letter to Janet Sparks (“Sparks”), a freelance writer for BlueMauMau.org, an internet blog that publishes stories and news for franchisees. On December 26, 2010, Sparks published an article titled, “CNBC Shelves Cold Stone Story after Zarco Attacks.” Sparks quoted portions of the Letter in the article, and the Letter was attached to the article via hyperlink as a PDF. The article reported that Zarco P.A. planned to file suit on behalf of NAB and NIACCF, and that Cold Stone was planning “a potential legal campaign to clarify [its] position and correct the inaccuracies presented in the CNBC piece.”

On January 17, 2012, Rolle filed the three-count First Amended Complaint against Appellees, alleging defamation per se, defamation per quod, and conspiracy to defame. Appellees moved to dismiss the First Amended Complaint on several grounds. Following a hearing on Appellees’ motions to dismiss, the trial court subsequently entered two identical orders dismissing the First Amended Complaint as to all Appellees with prejudice. With respect to all the Appellees, the trial court found “that Counts I, II and III of Plaintiffs First Amended Complaint are subject to dismissal on the grounds that the statements allegedly made and conduct allegedly engaged in by Defendants were made in the course of a judicial proceeding and, thus are absolutely privileged.” The trial court further found “that as a result of the existence of the absolute privilege, any attempt by Plaintiff to allege these claims in a subsequent pleading would be futile, thus, the dismissal of Counts I, II and III of Plaintiffs First Amended Complaint is WITH PREJUDICE.” (emphasis in original). This appeal ensued.

II. ANALYSIS

We review de novo a trial court’s order granting a motion to dismiss. See Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014). The purpose of a motion to dismiss is “to test the legal sufficiency of the complaint, not to determine factual issues.” See Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla. 2006). Unlike a motion for summary judgment, when ruling on a motion to dismiss, “‘[a] court may not go beyond the four corners of the complaint in considering the legal sufficiency of the allegations.’ ” See Pacific Ins. Co., Ltd., v. Botelho, D.O., 891 So.2d 587, 590 (Fla. 3d DCA 2004) (quoting Barbado v. Green & Murphy, P.A., 758 So.2d 1173, 1174 (Fla. 4th DCA 2000)). Additionally, all allegations must be taken as true, and “any reasonable inferences drawn from the complaint must be construed in favor of the non-moving party.” Minor v. Brunetti, 43 So.3d 178, 179 (Fla. 3d DCA 2010).

Finally, in considering a motion to dismiss, a trial court is required to consider exhibits attached to and incorporated into the complaint. See Harry Pepper & Assocs. v. Lasseter, 247 So.2d 736, 736 (Fla. 3d DCA 1971); see also K.R. Exch. Servs., Inc. v. Fuerst, Humphrey, Ittleman, PL, 48 So.3d 889, 894 (Fla. 3d DCA 2010); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008); Merovich v. Huzenman, 911 So.2d 125, 128 n.5 (Fla. 3d DCA 2005).

Affirmative defenses are generally matters raised in an answer and not a motion to dismiss. Grove Isle, 137 So.3d at 1089. “However, where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the defense bars the action as a matter of law, a motion to dismiss raising the defense is properly granted.” Id.

Appellees assert the Letter is protected by absolute privilege, because it was sent during the course of and had a relationship to judicial proceedings—i.e., ongoing litigation between Rolle and Cold Stone. Alternatively, Appellees argue the Letter is protected as a statutorily mandated pre-litigation notice. “The law in Florida has long been that defamatory statements made in the course of judicial proceedings are absolutely privileged ... regardless of how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry.” Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla. 1992) (citing Myers v. Hodges, 53 Fla. 197, 44 So. 357, 361 (1907)). “Th[e] privilege ... arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto.” Ange v. State, 98 Fla. 588, 128 So. 916, 917 (1929). See also Fridovich, 598 So.2d at 66 (same); Burton v. Salzberg, 725 So.2d 450, 451 (Fla. 3d DCA 1999) (same).

While it may well be true that the Appellees will ultimately prevail on an affirmative defense such as absolute privilege, at this stage of the proceeding, there is nothing in the four corners of the complaint or its exhibits that allege a fact or facts to support that defense. Indeed, neither the complaint nor its exhibits allege that a judicial proceeding existed at the time the Letter was sent to either CNBC or to the reporter, Janet Sparks.

Moreover, a review of the First Amended Complaint fails to allege that the Letter was sent as a statutory five day pre-suit notice under section 770.01, Florida Statutes (2011). The Letter does not, on its face, indicate that it was sent as a five day pre-suit notice required under section 770.01.

In contrast, other exhibits attached to the First Amended Complaint, specifically eight letters from Rolle’s counsel to Appel-lees, show on their face that they were sent pursuant to section 770.01. Indeed, all eight letters contain a section entitled “Five-Day Notice for Defamation Claim Pursuant to Fla. Stat. § 770.01.” The first paragraph of each letter further states that the purpose of the letter is to serve as notice that, pursuant to section 770.01, Rolle intends to file a civil action in the State of Florida for several false and defamatory statements. Additionally, those letters from Rolle’s counsel appear to comply with section 770.01’s requirement to identify the alleged false and defamatory statements made by the Appellees. Thus, these letters show on their face that they were sent pursuant to the statutory five-day pre-suit notice.

Indeed, without additional factual information it is difficult to characterize the Letter as a pre-suit notice as required by section 770.01. The Letter did not warn CNBC that a lawsuit was imminent, and thus, on its face, the Letter cannot be said to provide notice of an impending lawsuit. Instead, the Letter can better be described as a demand that CNBC cease and desist rebroadcasting the documentary, as it ends with the following statements:

For the numerous reasons expressed herein, we demand that you immediately discontinue rebroadcasting the show. Please contact me to discuss what appropriate remedy can be crafted to correct the damage that has already been done. Because of the urgency of this matter, I request that you call me over the weekend on my personal cell phone, REDACTED, as time is of the essence.

Because the counts in the First Amended Complaint otherwise state valid causes of actions, we find that the trial court improperly dismissed Rolle’s pleading. See Beach Roundhouse Town Corp. v. Skinner, 356 So.2d 881 (Fla. 3d DCA 1978) (reversing dismissal by trial court when four corners of complaint did not support defense that corporations had no authority from board of directors or corporate officers to bring suit). We, therefore, remand for the trial court to deny Appellees’ motions to dismiss as we conclude that the First Amended Complaint, taken as true, states causes of action for defamation per se, defamation per quod, and conspiracy. Our decision, however, expresses no position on whether Rolle’s causes of action or Appellees’ affirmative defenses have merit.

III. CONCLUSION

Based on the foregoing, we find that because the trial court went outside the four corners of the First Amended Complaint in granting the motions to dismiss, we reverse the trial court’s order with instructions to reinstate Rolle’s claims.

REVERSED AND REMANDED.

      . The Letter is attached as an exhibit to Rolle’s First Amended Complaint.

      . The Court in Fridovich receded from Ange to the extent those decisions are inconsistent, stating: "defamatory statements voluntarily made by private individuals to the police or the state’s attorney prior to the institution of criminal charges are presumptively qualifiedly privileged.” Fridovich, 598 So.2d at 69 (emphasis added.)

      . Specifically, the exhibits are letters from: (1) counsel for Rolle, Jonathan P. Stevens ("Stevens”) to Zarco, stating that "my client, Cecil Rolle, intends to file a civil action against you personally and Zarco Einhorn Salkowski & Brito, P.A. ("ZESB”) in the State of Florida for several false and defamatory statements made by you”; (2) Stevens to Michael Reagan, Executive Vice President and General Counsel at Kahala and Cold Stone, stating that "my client, Cecil Rolle, intends to file a civil action in the State of Florida for several false and defamatory statements made by Robert Zarco on behalf of Kahala Corp ("Kahala”) and Cold Stone Creamery, Inc. ("Cold Stone”)”; (3) Stevens to Daniel Beem at Cold Stone Creamery, Inc. National Advisory Board, stating that "my client, Cecil Rolle, intends to file a civil action against you personally and the Cold Stone Creamery, Inc. National Advisory Board (the “NAB”) in the State of Florida for several false and defamatory statements made by Robert Zarco on behalf of you and the NAB”; (4) Stevens to Rodolfo Puig at NIACCF, stating that "my client, Cecil Rolle, intends to file a civil action against you personally and the National Independent Association Of Cold Stone Creamery Franchisees, Inc. (the "NIACCF”) in the State of Florida for several false and defamatory statements made by Robert Zarco on behalf of you and the NIACCF”; (5) Stevens to Daniel Beem at Cold Stone, stating that "my client, Cecil Rolle, intends to file a civil action against you in the State of Florida for several false and defamatory statements made by Robert Zarco on behalf of you”; (6) Stevens to Rodolfo Puig, stating that "my client, Cecil Rolle, intends to file a civil action against you in the State of Florida for several false and defamatory statements made by Robert Zarco on behalf of you”; (7) Stevens to Frank Caperino stating that "my client, Cecil Rolle, intends to file a civil action against you in the State of Florida for several false and defamatory statements made by Robert Zarco on behalf of you”; and (8) Stevens to Edward Reesman stating that "my client, Cecil Rolle, intends to file a civil action against you in the State of Florida for several false and defamatory statements made by Robert Zarco on behalf of you.”

      . The elements of a claim for defamation are as follows: "(1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008). A review of the complaint shows that each element has been properly asserted.