author: WALLACE, Judge.

text:
    Keith B. PARHM, DOC #C01111, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3344
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017
    Keith B. Parhm, pro se.
   WALLACE, Judge.

Keith Parhm seeks review of the post-conviction court’s order summarily denying his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm without comment the posteonviction court’s order on all of the claims asserted except claim one. With regard to the postconviction court’s summary denial of Mr. Parhm’s first claim—ineffective assistance of counsel for failing to inform him of the elements of the offenses charged and his available defenses—we reverse and remand for further proceedings.

Mr. Parhm was charged with violating the Florida Racketeer Influenced and Corrupt Organizations (RICO) Act (count one) and conspiracy to violate the Florida RICO Act (count two) for his participation in numerous drug deals as a member of a criminal street gang. On November 5, 2008, Mr. Parhm entered into a negotiated no contest plea on counts one and two. As part of the plea deal, Mr. Parhm was to cooperate with law enforcement and his sentencing was deferred. On June 5, 2009, after his motion to withdraw his plea was denied, Mr. Parhm was sentenced to thirty years’ prison on both counts. The trial court designated the sentences to run concurrently. Mr. Parhm appealed, and this court affirmed his judgment and sentences. Parhm v. State, 44 So.3d 589 (Fla. 2d DCA 2010) (table decision).

In March 2014, Mr. Parhm filed his third amended motion for postconviction relief under rule 3.850. In his motion, Mr. Parhm raised six different grounds: (1) ineffective assistance of counsel for failure to inform Mr. Parhm of the elements of the charges and any corresponding defenses; (2) ineffective assistance of counsel for failure to obtain additional time for Mr. Parhm to consider the State’s plea offer; (3) a claim that the plea was involuntary because Mr. Parhm did not understand the consequences of his plea agreement; (4) a claim that the sentence imposed was vindictive; (5) a claim that the racketeering statute was unconstitutional; and (6) a claim of cumulative error. On June 29, 2016, the postconviction court entered an order summarily denying all six of the grounds asserted in the motion. On appeal, Mr. Parhm challenges only.the denial of his first four claims. We will discuss Mr. Parhm’s first claim below. His remaining claims are without merit and do not warrant further discussion.

In his first claim, Mr. Parhm alleged that his trial counsel was ineffective for failing to advise him regarding the elements of the charges and the corresponding defenses. Specifically, Mr. Parhm alleged that his trial counsel failed to inform him that a conviction for racketeering required that the predicate incidents in which he was engaged must have “the same or similar intents, results, accomplices, victims, methods of commission, or were interrelated by distinguishing characteristics, rather than being isolated incidents.” Mr. Parhm further, alleged that trial counsel failed to inform him that conspiracy to commit racketeering required proof of specific intent. Mr. Parhm also alleged that his trial counsel was ineffective for failing to inform him of the corresponding defenses to the charges against him, such as lack of intent. Mr. Parhm concluded by alleging that if his trial counsel had properly advised him of the elements that the State would be required to prove if the case had proceeded to trial and the defenses available to the charges, he would not have entered a no contest plea and would have proceeded to trial.

In denying Mr. Parhm’s claim as conclusively refuted by the record, the postcon-viction court relied on the statement of the factual basis for the plea.recited by the prosecutor during the plea colloquy. When the trial court asked Mr. Parhm if he had any objection to the factual basis as stated by the prosecutor, he responded, “No.” Citing these portions of the record from the plea colloquy, the postconviction court found: “[Mr. Parhm] was informed of the elements comprising each charged offense and the specific incidents underlying the charges, and he did not raise any objection regarding the incidents being isolated or that he knowingly participated in the conspiracy.” Based on this finding, the trial court denied claim one as conclusively refuted by the record.

There is nothing in the record attachments to refute Mr. Parhm’s claim that his trial counsel failed to properly advise him of < the elements of the charged offenses and his available defenses. Also, there is nothing in the record attachments to refute Mr. Parhm’s, claim that if he had-been properly advised, he would have declined to enter his no contest pleas and would have insisted on going to trial. Although the prosecutor recited the elements of the charges at the plea hearing, such a brief recitation was not sufficient to conclusively refute Mr.' Parhm’s claim that his counsel failed to advise him regarding the elements of the charges; Nor was it a proper substitute for the informed advice of a competent lawyer regarding what the State would have been obligated to prove in the cases against Mr. Parhm. Indéed, this is especially true in cases involving racketeering and conspiracy to commit racketeering, whose hallmark is their complexity. See generally Hagopian v. Justice Admin. Comm’n, 18 So.3d 625, 640-42 (Fla. 2d DCA 2009) (discussing the complexity of RICO prosecutions and their defense); Jennifer Daley, Tightening the Net of Florida’s RICO Act, 21 Fla. St. U. L. Rev. 381, 384 (1993).

Furthermore, the prosecutor’s statement of the factual basis for the plea did not refute Mr. Parhm’s claim that his trial counsel failed to advise him of the availability of specific defenses to the racketeering and conspiracy to commit racketeering charges, e.g., that the alleged predicate incidents were isolated incidents and the State would not have been able to prove his intent to participate in: the alleged conspiracy, “In. order for a trial court to summarily deny a defendant’s claim that his counsel failed to advise him of a specific defense, the record must conclusively refute the claim.” Jones v. State, 846 So.2d 1224, 1226. (Fla. 2d DCA 2003) (citing Flores v. State, 662 So.2d 1350, 1351-52 (Fla. 2d DCA 1995)) (reversing the summary denial of defendant’s claim that counsel failed to inform him that consent was an available defense to a sexual battery charge and remanding for an evi-dentiary hearing); see also Fernandez v. State, 135 So.3d 446, 447-48 (Fla. 2d DCA 2014) (reversing the summary denial of defendant’s claim that' counsel failed to advise him of the availability of the afterthought defense to a robbery charge and remanding for an evidentiary' hearing).

Accordingly, we reverse the denial of Mr. Parhm’s claim one and remand for the postconviction court either to attach specific portions of the record refuting Mr. Parhm’s allegations in claim one or to conduct an evidentiary hearing. In all other respects, we affirm the postconviction court’s order.

Affirmed in part, reversed-in part, and remanded.

. MORRIS and ROTHSTEIN-YOUAKIM, JJ„ Concur.

      . We note that Mr, Parhm expressly stated , during the plea colloquy that he was pleading no contest to the charges not because he believed that he was guilty but because he had concluded that the entry of the pleas was in his best interest.. Under these circumstances, his.failure to object to the factual basis for the charges as stated by the prosecutor is of little weight in determining his understanding and acceptance of the prosecutor’s recitation of the facts.


source: Caselaw Access Project

license: Public Domain

text:
    Hazel N. PETERS a/k/a Hazel N. Johnson; and Unknown Tenant 1 n/k/a Dave Peters, Appellants, v. The BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as Trustee for Bear Stearns Asset Backed Securities Trust 2006-4, Asset Backed Certificates, Series 2006-4, and Leo Johnson, Appellees.
    Case No. 2D15-2222
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017

      Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant Hazel N. Peters a/k/a Hazel N. Johnson.
    Kristen M. Crescenti, Christopher C. O’Brien and Ronnie J. Bitman of Pearson Bitman LLP, Maitland, for Appellee The Bank of New York Mellon.
    No appearance for Appellee Leo Johnson.
   WALLACE, Judge.

Hazel N. Peters, a/k/a Hazel N. Johnson (Ms. Peters), challenges a final judgment of foreclosure in favor of The Bank of New York Mellon (the Bank) entered after a bench trial. Because the Bank failed to prove its ownership of the lost note that it attempted to reestablish and enforce, we reverse.

I. THE FACTS AND THE PROCEDURAL BACKGROUND

On March 13, 1998, Ms. Peters and Leo Johnson executed a note in favor of Conti-Mortgage Corporation as the Lender. The note was secured by a standard residential mortgage on real property in Lee County, Florida. The mortgage also named Conti-Mortgage Corporation as the Lender.

On January 28, 2013, the Bank filed the underlying action to foreclose the mortgage and for the reestablishment of the note, which the Bank alleged had been lost. The Bank’s complaint alleged September 18, 2008, as the date that the note went into default. The Bank filed a lost note affidavit dated on October 31, 2006, and executed on behalf of EMC Mortgage Corporation (EMC), a prior holder of the mortgage. In the affidavit, the affiant merely asserted that the note “was lost and has not been paid, satisfied, assigned, pledged, transferred or hypothecated in any way.” The affidavit did not provide any details regarding the date or circumstances of the asserted loss of the note. A copy of the note was attached to the affidavit. The copy of the note did not reflect any indorsements or allonges. The Bank subsequently filed another lost note affidavit executed on behalf of Select Portfolio Servicing, Inc. (SPS), the current servicer for the loan. The copy of the note attached to the SPS affidavit was identical to the copy attached to the EMC affidavit.

Ms. Peters filed an answer and affirmative defenses to the complaint. In her answer, Ms. Peters denied the material allegations of the complaint and asserted numerous affirmative defenses. In pertinent part, Ms. Peters denied that the Bank had standing to enforce the note and mortgage, asserted that the Bank’s action to reestablish the lost note was barred by the applicable statute of limitations, and claimed that the Bank had failed to comply with a condition precedent to foreclosure because it had not notified the borrower of the claimed assignment of the loan within thirty days of the assignment in accordance with section 559.715, Florida Statutes (2012).

The lost note was payable to ContiMort-gage Corporation; it had not been indorsed in blank or payable to the order of the Bank. At trial, the Bank sought to establish its ownership of the lost note with a series of four assignments of mortgage. The first assignment, dated April 8, 1998, was from ContiMortgage Corporation to ContiWest Corporation. The second assignment, dated April 7, 1998, was from ContiWest Corporation to Manufacturers and Traders Trust Company. Although the second assignment was dated one day before the first one, it was recorded after the recording of the first one. The third assignment, dated June 28, 2010, was from Manufacturers and Traders Trust Company to EMC. Each of the first three assignments expressly assigned both the mortgage and the note that was secured by it.

The fourth assignment, dated December 7, 2012, was from EMC to the Bank. In pertinent part, the fourth assignment assigned “all of Assignor’s right, title and interest all beneficial interest under a certain Mortgage, dated March 13, 1998, made and executed by Leo Johnson and Hazel N. Johnson fka Hazel N. Peters to ContiMortgage Corporation ....” At trial, Ms. Peters argued that the fourth assignment was insufficient to establish the Bank’s ownership of the lost note because it assigned only the mortgage, not the note. The trial court ruled that the fourth assignment was sufficient to assign the note as well as the mortgage and rejected Ms. Peters’ argument. The trial court admitted the certified copies of the four assignments into evidence over Ms. Peters’ objection.

Counsel for the Bank conceded that the note and mortgage at issue had been the subject of two prior foreclosure actions filed in the Lee County Circuit Court. The first action was filed in 2001; the second was filed in 2004. Notably, both actions, which were subsequently dismissed, included a count for the reestablishment of a lost note. Based on the filing of the prior actions and the first lost note affidavit executed in 2006, Ms. Peters argued that the Bank’s action to reestablish the lost note was barred because it had not been brought within the bar of the five-year statute of limitations set forth in section 95.11(2)(b), Florida Statutes (1997). The trial court rejected this argument, reasoning as follows:

The purpose of the statute of limitations is to try to prevent stale claims, okay, but my belief—and this is going to be the ruling of the Court—that the loss or discovery of the lost instrument is not a claim. It’s an event. It’s nothing that gives rise to a claim that would give rise to [a] cause of action. The only time that there’s going to be a claim resulting from a lost instrument is when it needs to be enforced and that is when it goes into default. So the ruling of the Court ... is going to be that there is no need once a lost negotiable instrument is discovered as being lost, that they have to file a cause of action to reestablish that note when that note is not being sought to be enforced.

Upon inquiry by counsel as to the effect of the filing of the two prior actions to enforce the lost note on the accrual of the cause of action, the trial court reiterated its ruling that the statute of limitations had not run so as to bar the current action to reestablish the lost note.

The Bank called a single witness at trial, Cynthia Stevens. At the conclusion of the presentation of Ms. Stevens’s testimony, the trial court rejected all of Ms. Peters’ other arguments, including those based on the Bank’s asserted lack of standing and noncompliance with the requirements of section 559.715. The trial court entered the final judgment of foreclosure on April 17, 2015. This appeal followed.

II. MS. PETERS’ APPELLATE : ARGUMENTS

On appeal, Ms. Peters raises three points. First, she argues that the Bank failed to prove its standing to' enforce the lost note. Second, Ms. Peters contends that the Bank’s claim to reestablish the lost note is barred by the applicable statute of limitations. Third, she asserts that the Bank failed to prove that it gave Ms. Peters written notice of the assignment of the. loan at least thirty days before the filing of the underlying action as required by section 559.715.

Ms,.Peters’ third point is without merit. See Brindise v. U.S. Bank Nat’l Ass’n, 183 So.3d 1215, 1219-20 (Fla. 2d DCA), review denied, No. SC16-300, 2016 WL 1122325 (Fla. Mar. 22, 2016); Nationstar Mortg., LLC v. Summers, 198 So.3d 1162, 1162 (Fla. 1st DCA 2016) (per curiam affirmance citing Brindise with approval); cf. Bank of Am., N.A. v. Siefker, 201 So.3d 811, 817-18 (Fla. 4th DCA 2016) (holding that section 559.715 was applicable to the mortgage foreclosure action brought by Bank of America, but that the statute did not operate as a. condition precedent to bringing a mortgage foreclosure action). Ms. Peters’ second point regarding the application of the statute of limitations to an action for the reestablishment, of a lost promissory note raises an issue that is apparently one of first impression in Florida. Although the statute of limitations issue raises interesting questions, our resolution of Ms. Peters’ first issue makes it unnecessary to address her arguments regarding the statute of limitations. Accordingly, we turn now to the issue of the Bank’s standing to enforce the lost note.

III. DISCUSSION

Our review of a trial court’s ruling regarding whether a foreclosure plaintiff has standing is de novo. See Gonzalez v. BAC Home Loans Servicing, L.P., 180 So.3d 1106, 1108 (Fla. 5th DCA 2015) (citing Schmidt v. Deutsche Bank, 170 So.3d 938, 941 (Fla. 5th DCA 2015)). “A trial court’s determination of whether a party has reestablished a lost note is reviewed for sufficiency of the evidence.” Home Outlet, LLC v. U.S. Bank Nat’l Ass’n, 194 So.3d 1075, 1077 (Fla. 5th DCA 2016) (citing Correa v. U.S. Bank Nat’l Ass’n, 118 So.3d 952, 956 (Fla. 2d DCA 2013)).

In order to establish its standing, the Bank had to prove either that it was the holder or the owner of the note. See Sorrell v. U.S. Bank Nat’l Ass’n, 198 So.3d 845, 847 (Fla. 2d DCA 2016). Here, the Bank was not in possession of the note. The note was lost at least as early as October 31, 2006. When the note was lost, it had not been indorsed by the original lender either in blank or to another party.

Section 673.3091, Florida Statutes (2012), sets forth the requirements for a person not in possession of an instrument to enforce it:

(1) A person not in possession -of an instrument is entitled to enforce the instrument if:
. (a) The .person seeking to enforce the instrument was entitled to,.enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. ■>
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

The Bank could not prove that it was entitled to enforce the note when the loss of possession occurred. Thus, it had to prove that it “ha[d] directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.” § 673.3091(l)(a). Where, as in this case, the plaintiff cannot prove that it was entitled to enforce a note when it was lost, “the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership.” Boumarate v. HSBC Bank USA, N.A., 172 So.3d 536, 538 (Fla. 5th DCA 2015); see also 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 [¿Indorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note.”).

The Bank’s proof in this regard depended on the chain of four assignments of mortgage that began with the original lender. Each of the first three assignments expressly included an assignment of the note with the mortgage. However, the fourth assignment from EMC to the Bank omitted the critical language assigning the note along -with the mortgage. Because the fourth assignment assigned only the mortgage and not the note, it was insufficient to transfer any interest in the note to the Bank. See Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 641-42 (Fla. 2d DCA 2015); Kyser v. Bank of Am., N.A., 186 So.3d 58, 60 (Fla. 1st DCA 2016); Jelic v. BAC Home Loans Servicing, LP, 178 So.3d 523, 525 (Fla. 4th DCA 2015); see also Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (“[A]n assignment of mortgage, even if executed before the foreclosure action commenced, is insufficient to prove standing where the assignment reflects transfer of only the mortgage, not the note.”).

In support of its standing to enforce the lost note, the Bank asserts that the reference in the operative language of the fourth assignment to “beneficial interest” in the mortgage denotes an inclusion of the note in- the assignment as well as the mortgage. The Bank relies on Johns v. Gillian, 134 Fla. 575, 184 So. 140 (1938), as authority for this proposition. In Johns, the Florida Supreme Court said: “Any form of assignment of a mortgage, which transfers the real and beneficial interest in the securities unconditionally to the as-signee, will entitle him to maintain an action for foreclosure.” Id. at 143 (emphasis added). According to the Bank’s reading of Johns, a reference in an assignment to the beneficial interest in a mortgage “actually assigns the Note as well.”

We conclude that the decision in Johns does not support the Bank’s argument regarding standing for two reasons. First, the Court’s recitation of the facts in Johns reflects that the note and other, securities at issue had been assigned to the plaintiff in that case by means other, than the assignment of mortgage under review. Id. at 141, 144. Thus, the facts in Johns ‘are easily distinguishable from the facts of the case before us. Second, the isolated snippet from the Johns opinion upon which the Bank places its focus—read in the context of the opinion as a whole—does not support the Bank’s position. The Court’s opinion in Johns is consistent with well-established Florida law “that a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt”—not the other way around. Id. at 143.

The Bank also points to the testimony of its trial witness, Ms. Stevens, as being sufficient to establish its ownership of the lost note. Ms. Stevens was a “cáse manager” employed by SPS. It appeared that SPS took over the servicing of the loan in August 2013. Thus, SPS’s involvement with the loan began approximately six months after the filing of the underlying action in the trial court and almost five years after the loan went into default. After the four assignments of mortgage were admitted into evidence, Ms. Stevens testified that the Bank had acquired an ownership interest in the note “from a person [sic] who [was] entitled to enforce the note.” The Bank did not present any documentary evidence regarding how and when it acquired its claimed ownership interest in the note other than the fourth assignment. Ms. Stevens conceded that when the loan was boarded into SPS’s records, the note had already been lost. Indeed, the first lost note affidavit indicated that the note was lost at least as early as 2006.

Here, Ms. Stevens’s testimony was insufficient to establish the ownership of the note. SPS did not begin servicing the note until August 2013. Obviously, Ms. Stevens had no personal knowledge about the Bank’s claim to have acquired ownership of the note in 2006. Moreover, Ms. Stevens’s testimony in this regard was not supported by the limited documentary evidence about the loan that was available. Because Ms. Stevens’s testimony was not based on personal knowledge and was not supported by any documentation, we conclude that the testimony was insufficient to establish the Bank’s ownership of the lost note. See Tomlinson v. GMAC Mortg., LLC, 173 So.3d 1121, 1122-23 (Fla. 2d DCA 2015); Home Outlet, 194 So.3d at 1078; Gonzalez 180 So.3d at 1108-09; Dixon v. Express Equity Lending Grp., LLLP, 125 So.3d 965, 967-68 (Fla. 4th DCA 2013).

IV. CONCLUSION

We have considered the Bank’s other arguments about standing, and we find them to be without merit. Because the Bank failed to establish its ownership of the lost note, the trial court erred in entering the final judgment of foreclosure. Under these circumstances, we must reverse the final judgment and remand this case to the trial court with directions to enter an involuntary dismissal of the Bank’s complaint. See Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 283 (Fla. 2d DCA 2014); Correa, 118 So.3d at 956-57.

Reversed and remanded with directions.

SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . We understand that there appears to be one or more words missing from this operative language. But the quote is accurate; we have not inadvertently dropped any words from the quoted language.

      . ’ The lost note affidavit prepared on behalf of SPS and- filed in the underlying action recited, in pertinent part, as follows: “The business records of [SPS] reflect that The Bank of New York, in trust for registered holders of Bear Stearns Asset Backed Securities 2006-4, Asset-Backed Certificates, Series 2006-4 (the “Noteholder”) acquired the Note on or about October 1, 2006. [SPS] services the Note and Mortgage on behalf of and as attorney in fact for the Noteholder.” The business records referenced here were not otherwise identified or described; nor were any copies of the business records attached as exhibits to the affidavit.


text:
    NATIONSTAR MORTGAGE, LLC, Appellant, v. Ronald and Susan WEILER; 380 Sea View Court #1909 Land Trust; MIPC, LLC, a Florida Limited Liability Company; April J. Dehanas; David A. Dehanas; South Seas Northwest Condominium Apartments of Marco Island, Inc.; and South Seas Club of Marco Island, Inc., Appellees.
    Case No. 2D16-1607
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Aker-man LLP, Fort Lauderdale; and Joseph S. Troendle of Akerman LLP, Jacksonville, for Appellant.
    Scott A. Beatty of Henderson, Franklin, Starnes & Holt, P.A., Bonita Springs, for Appellees, Ronald and Susan Weiler.
    No appearance for remaining Appellees.
   WALLACE, Judge.

Nationstar Mortgage, LLC (Nationstar), a third-party intervenor in a mortgage foreclosure action, appeals from the trial court’s order denying its motion to vacate the certificate of title, certificate of sale, and final judgment of foreclosure. Because the trial court violated Nationstar’s due process rights by hearing, and determining matters that were not the subject of appropriate notice, we reverse and remand for further proceedings.

I. THE FACTS

The issues in this appeal arose out of Nationstar’s postjudgment intervention in a mortgage foreclosure action. In July 2014, MIPC, LLC (MIPC), filed the underlying foreclosure action against the original mortgagors and other interested parties. On December 4, 2014, the trial court entered a final judgment of foreclosure in favor of MIPC. The real property was subsequently sold at a foreclosure sale in January 2015 to Ted Hofferber, as Trustee of the 380 Seaview Court # 1909 Trust (Hofferber Trustee). Over five months later in June 2015, Hofferber Trustee sold the property to Ronald and Susan Weller (the Weilers).

On November 4, 2015, Nationstar filed a motion to intervene in MIPC’s foreclosure action, as well as a motion to vacate the certificate of title, the certificate of sale, and the final judgment of foreclosure (motion to vacate)! Nationstar argued that it was entitled to intervene because it was the holder of the original note, the first mortgagee, and an indispensable party to the proceedings. In its motion to vacate, Nationstar argued that the certificates of title and sale and the final ■ judgment of foreclosure should be vacated because MIPC never surrendered the original promissory note for filing in the court file.

On February 12, 2016, the trial court entered an order granting Nationstar’s motion to intervene and scheduling Na-tionstar’s motion to vacate for an eviden-tiary hearing. In its order, the trial court provided notice of. the hearing, by stating that Nationstar’s motion to vacate was “scheduled for an evidentiary hearing on March 4, 2016.” The order was served upon the Weilers, who were nonparties to the action.

At the hearing, Nationstar, MIPC, and the Weilers were all represented by counsel. Nationstar argued that the final judgment entered in favor of MIPC was void as a matter of law because MIPC never pro-ducéd or- surrendered the original note. Nationstar further asserted that it was the holder of the original note and had brought in a witness to testify to its chain of possession. Upon further inquiry, the trial court confirmed that the note was not in the court file. In response, MIPC’s counsel stated that he “thought” that MIPC had filed the original note, but he was “apparently” mistaken. As a result, MIPC did not object to Nationstar’s motion.

However, the Weilers objected to Na-tionstar’s motion on two different grounds. First, the Weilers argued that section 48.23, Florida Statutes (2014) (the notice of lis pendens statute), discharged Nations-tar’s unrecorded interest and lien. Second, the Weilers argued that their title to the property was “unassailable” because they were bona fide purchasers of the property. In support of their second argument, counsel for the Weilers submitted an affidavit front Mr. Weiler for the trial court’s consideration. The affidavit reflected that the Weilers had purchased the, property from and had no previous relationship with Hof-ferber Trustee. The affidavit further reflected that the Weilers had received no notice of either Nationstar’s foreclosure claim before the, sale or any defects regarding the foreclosure.

Nationstar objected on the ground that the Weilers could not introduce the affidavit into evidence or, for that matter, make any arguments at the hearing because of their status as nonparties to the litigation. However, the trial- court overruled the objection, admitted the affidavit into evidence, and allowed the Weilers to make their arguments. Over a month later, on May 9, 2016, the trial court entered its order denying Nationstar’s motion to vacate. Relying upon the court records, the trial court ruled that section 48.23 “forever barred” Nationstar’s interest in the property. The trial court reasoned that Na-tionstar not only failed to timely intervene in MIPC’s foreclosure action, but also failed to record its interest before MIPC filed its notice of lis pendens. The trial court ruled further that because Mr. Weiler’s affidavit showed that the Weilers were bona fide purchasers of the property, the Weilers’ title' could not be defeated by a subsequent reversal or vacation of the foreclosure judgment.

II. NATIONSTAR’S APPELLATE ARGUMENTS

On appeal, Nationstar raises four arguments. First, Nationstar argues that it was deprived of due process because the trial court improperly changed the scope of the hearing by allowing the Weilers to argue and present evidence without proper pleading or notice. Second, Nationstar asserts that the trial court lacked subject matter jurisdiction to adjudicate the rights of the Weilers, who were not parties to the action. Third, Nationstar contends that the trial court erred in finding that the effect of section 48.23 was to discharge Nationstar’s unrecorded assignment of mortgage. Fourth, Nationstar argues that the trial court erred in finding that the Weilers were bona fide purchasers. Our resolution of the first issue makes it unnecessary to address the other three issues raised on appeal. Accordingly, we turn now to the issue of whether the trial court’s order violated Nationstar’s procedural due process rights.

III. DISCUSSION

Our review of whether a trial court complied with the requirements of due process is de novo. Crescenzo v. Marshall, 199 So.3d 353, 355 (Fla. 2d DCA 2016) (citing Fed. Nat’l Mortg. Ass’n v. Sanchez, 187 So.3d 341, 342 (Fla. 4th DCA 2016)); see also Skelton v. Lyons, 157 So.3d 471, 472 (Fla. 2d DCA 2015) (citing VMD Fin. Servs., Inc. v. CB Loan Purchase Assocs., LLC, 68 So.3d 997, 999 (Fla. 4th DCA 2011)). A trial court “provides due process if the complaining party was given notice and an opportunity to be heard.” Casa Inv. Co. v. Nestor, 8 So.3d 1219, 1220 (Fla. 3d DCA 2009) (quoting Williams v. Miami-Dade County, 969 So.2d 389, 392 (Fla. 3d DCA 2007)); see also Crescenzo, 199 So.3d at 355. However, a trial court may violate a party’s “due process rights by hearing and determining matters that were not the subject of appropriate notice.” Levitt v. Levitt, 454 So.2d 1070, 1071 (Fla. 2d DCA 1984) (citing Barreiro v. Barreiro, 377 So.2d 999, 1000 (Fla. 3d DCA 1979)); see also Hully v. Hully, 653 So.2d 1138, 1140 (Fla. 2d DCA 1995).

In Levitt, this court was confronted with a similar issue. There, the appellant wife filed a motion to continue a scheduled hearing on the appellee husband’s petition to modify and reduce his share of the child support agreement. Levitt, 454 So.2d at 1071. The appellant filed and served the appellee with a notice of hearing. Id. The notice informed the appellee that the motion for continuance would be heard at the hearing. Id. At the hearing, the trial court granted the continuance but decided to reduce the appellee’s child support obligation. Id This court subsequently reversed, finding that the trial court’s decision to reduce the appellee’s obligation for child support violated the appellant’s due process rights because it heard and determined “matters that were not the subject of appropriate notice.” Id. (citing Barreiro, 377 So.2d at 1000). This court reasoned that because the notice of hearing “indicate[d] that only the appellant’s motion for continuance was to be considered at the hearing,” the appellant was neither prepared, nor required to be prepared “to argue against a reduction in child support.” Id.; see also Hully, 653 So.2d at 1140 (holding that a husband’s procedural due process rights were violated because the trial court “heard and determined matters that were not the subject of appropriate notice” by granting the wife’s unscheduled motion for default); Barsis v. Barsis, 209 So.3d 654, 655 (Fla. 5th DCA 2017) (holding that the “trial court’s order violated [wife’s] due process rights by significantly modifying her timesharing with her children when the only matter scheduled to be addressed at the hearing was the location for the timesharing exchange”); Barreiro, 377 So.2d at 1000 (holding that a court may not expand the scope of a hearing set only upon a particular motion without prior notice and without appropriate pleadings). Accordingly, because the trial court erred in ordering the reduction of the appellee’s child support obligation at a hearing on a motion for continuance, this court remanded for further proceedings. See Levitt, 454 So.2d at 1072.

Here, in similar fashion, we hold that the trial court violated Nationstar’s procedural due process rights because it heard and determined matters that were not the subject of appropriate notice. The notice of hearing indicated that only Na-tionstar’s motion to vacate was to be considered at the hearing. However, at the hearing, the trial court heard arguments and accepted evidence regarding whether Nationstar was barred from enforcing the mortgage based on the notice of lis pen-dens statute and the Weilers’ asserted status as bona fide purchasers. In other words, instead of restricting the focus of the hearing to the issue of whether the final judgment of foreclosure should be vacated based on MIPC’s failure to produce and surrender the original note, the trial court allowed counsel for the Weilers to recast the subject matter of the hearing to a consideration of whether Nationstar was ultimately prohibited from enforcing its mortgage. Because such matters were outside the original scope of the hearing, Nationstar “was not prepared, nor was [it] required to be prepared, to argue against” the Weilers’ arguments. Hully, 653 So.2d at 1140 (citing Levitt, 454 So. 2d at 1071). Indeed, our conclusion that Nationstar was not afforded procedural due process is further bolstered by the trial court’s decision to allow the Weilers not only to argue matters outside the scope of the motion to vacate, but also to introduce a self-serving affidavit into evidence without providing any notice of their intent to object or to present evidence. Accordingly, the trial court violated Nationstar’s due process rights by expanding the subject of the hearing far beyond its proper scope, which was Nationstar’s motion to vacate.

Finally, we note that Nationstar’s failure to object on due process grounds during the hearing does not preclude them from raising this issue on appeal. See Withers v. Blomberg, 41 So.3d 398, 401 (Fla. 2d DCA 2010) (“[A] denial of due process, if proven, constitutes fundamental error, which may be challenged for the first time on appeal.” (quoting Verizon Bus. Network Servs., Inc. v. Dep’t of Corr., 988 So.2d 1148, 1151 (Fla. 1st DCA 2008))); Blechman v. Dely, 138 So.3d 1110, 1114 (Fla. 4th DCA 2014) (same).

For the foregoing reasons, we reverse the trial court’s order denying Nationstar’s motion to vacate and remand this case for further proceedings.

Reversed and remanded.

SILBERMAN and BADALAMENTI, JJ., Concur.

      . Specifically, Nationstar argues that the trial court lacked subject matter jurisdiction to adjudicate the Weilers' claims because they never became parties to the action and failed to invoke the court’s jurisdiction by the filing of an appropriate pleading. See Lucky Nation, LLC v. Al-Maghazchi, 186 So.3d 12, 14-15 (Fla. 4th DCA 2016); see generally Scott Stephens, Florida's Third Species of Jurisdiction, 82 Fla. B J, 10 (Mar. 2008) (discussing subject matter jurisdiction in the sense of a court’s authority to hear and- determine a dispute based upon the procedural posture of the case).

      . The notice of hearing was included in the trial court's February 12, 2016, order.


text:
    Johnnie Allen BROWN, III, DOC #372667, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2592
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017

      Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D, Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Johnnie Allen Brown, III, challenges his judgment and sentence imposed. after a jury returned a verdict finding him guilty of felony battery based on a second or subsequent offense, a violation of section 784.03(2), Florida Statutes (2015); Mr. Brown admitted striking the victim but claimed that he acted in self-defense.. Because the trial court erred in excluding Mr. Brown’s proffered testimony concerning his knowledge of specific acts of violence by the victim and his knowledge of her reputation in the community for violence, we reverse the judgment and sentence and remand for a new trial.

I. THE FACTS

The incident that gave rise, to the charge occurred on January 6, 2016. Mr, Brown and the victim had previously enjoyed a romantic relationship, but that relationship had ended before the events in question. The victim testified-that after an argument with Mr. Brown at his residence, she was preparing to leave and had gone inside to say goodbye to their dog. But before she was able to react, Mr. Brown was on top of her and began hitting her. She testified that Mr. Bi-own hit her three times; he finally stopped when the dog bit him. The victim denied that she was carrying a knife or a razor.

Mr. Brown took the stand in his own defense. He did not deny hitting the victim, but his version of the events leading up to the fracas was substantially different from hers. According to Mr. Brown, the victim was angry with him because she believed that he had been “slandering” her. Mr. Brown explained to the victim that someone had misconstrued his remarks. With that, the victim went into his residence and began taking things from his nightstand and throwing them into her purse and backpack. When Mr. Brown followed the victim into the residence and asked her what she was doing, the victim stood up and replied, “I’m going to tell you what I’m going to do.” Mr. Brown testified that upon hearing the victim’s reply he saw an X-Acto knife in her hand, became scared, and “flipped out.” It was only after Mr. Brown heard the victim’s.threat and saw the knife in her hand that he “flipped out” and began hitting the victim.

At this point in Mr. Brown’s testimony, defense counsel attempted to elicit testimony from Mr. Brown regarding his knowledge of specific acts of violence by the victim and her reputation in the community for violence. The prosecutor promptly objected that such evidence was inadmissible because it amounted to an improper attack on the victim’s character. The prosecutor also argued that such evidence was inadmissible because Mr. Brown had already established his self-defense claim with his testimony about the victim’s threat and the act of brandishing the X-Acto knife. Defense counsel responded that the evidence was admissible to show that Mr. Brown had a reasonable apprehension of acts of violence at the hands of the victim. After these initial arguments, defense counsel proffered Mr. Brown’s testimony concerning his knowledge of both specific prior acts of violence by the victim and her reputation in the community for violence. Further argument by counsel followed the proffer. After considering the parties’ arguments, the trial court ruled that it would exclude the proffered testimony because it amounted to an attack on the victim’s character. The trial court also reasoned that because Mr. Brown.had already established his claim of self-defense with his testimony about the victim’s threat and the brandishing of the knife, the proffered testimony was “irrelevant, immaterial, and inappropriate.”

When the direct examination of Mr. Brown resumed, he testified that he had struck the victim because he was scared and was trying to get away from her. During closing argument, defense counsel argued for. a not guilty verdict on the theory that Mr. Brown had acted in self-defense. The jury rejected the self-defense claim and returned a verdict finding Mr. Brown guilty as charged. The trial court sentenced him to ten years in prison as a habitual felony offender. This appeal followed.

II.. DISCUSSION

“Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.” Ray v. State, 755 So.2d 604, 610 (Fla. 2000). In general, evidence concerning a victim’s- character is inadmissible. Grace v. State, 832 So.2d 224, 226 (Fla. 2d DCA 2002). However, in cases where a claim of self-defense is raised,

evidence of the victim’s reputation is admissible to disclose his or her propensity for violence and the likelihood that the victim was the aggressor, while evidence of prior specific acts of violence by the victim is admissible to reveal the reasonableness of the defendant’s apprehension at the time of the incident.

Smith v. State, 661 So.2d 358, 361 (Fla. 1st DCA 1995) (quoting Smith v. State, 606 So.2d 641, 642-43 (Fla. 1st DCA 1992)); see also Grace, 832 So.2d at 226. In fact, when self-defense is a defendant’s only defense, “it may be prejudicial error to exclude competent evidence supporting that defense.” Mohler v. State, 165 So.3d 773, 775 (Fla. 2d DCA 2015).

To introduce evidence of a victim’s character, the defendant “must show some overt act by the victim at or about the time of the incident which reasonably indicated to-the defendant a need to take some action in self-defense.” Smith, 661 So.2d at 361. Indeed, “if there is the slightest' evidence of an overt act by the victim which may be reasonably regarded as placing the defendant in imminent danger, all doubts .as to the admission of self-defense evidence must be resolved in favor of the accused.’’ Id. (alteration omitted) (quoting Smith, 606 So.2d at 643). In addition to showing some overt act, “[t]here must also be evidence that the defendant knew of the [victim’s] specific acts of violence.” Grace, 832 So.2d at 226. Further, “[wjhile reputation evidence may be offered to corroborate the defendant’s testimony by showing the victim’s propensity toward violence, specific act evidence is only admissible to prove the reasonableness of the defendant’s apprehension.” Id.; see also Antoine v. State, 138 So.3d 1064, 1075 (Fla. 4th DCA 2014) (stating that reputation evidence may be admissible to show a victim’s “propensity for violence and the likelihood that the victim was the aggressor” (quoting Berrios v. State, 781 So.2d 455, 458 (Fla. 4th DCA 2001))).

In this case, Mr. Brown established a sufficient predicate for the admission of his proffered testimony regarding his knowledge of the victim’s reputation for violence and specific acts of violence. Mr. Brown testified that the victim was angry with him because she believed that he had been “slandering” her. In Mr. Brown’s account of the incident, the victim went into his residence and began taking some of his possessions. When he approached her, the victim stood up brandishing an X-Acto knife and announced, “I’m going to tell you what I’m going to do.” Evidence regarding these acts was sufficient to raise a reasonable apprehension of the need for self-defense. See Grace, 832 So.2d at 226-27 (holding that the trial court erred in excluding testimony regarding prior specific acts of violence because the defendant offered evidence of an overt act by the victim that would reasonably suggest the need for self-defense, i.e., picking up a beer bottle and threatening to hit the defendant with it); Burk v. State, 497 So.2d 731, 733 (Fla. 2d DCA 1986) (holding that the trial court erred in preventing the defendant from testifying about his knowledge of the victim’s reputation for violence because the defendant had sufficiently established that an issue existed regarding whether he reasonably believed he was in imminent danger from the victim); Smith, 661 So.2d at 361 (holding that the trial court erred in excluding testimony regarding the victim’s prior specific acts of violence because there was an overt act to suggest the reasonableness of the defendant’s fear and his need to act in self-defense, i.e., the victim’s approach toward the defendant with a knife); see also Hedges v. State, 667 So.2d 420, 423 (Fla. 1st DCA 1996) (reaching a similar conclusion); Sanchez v. State, 445 So.2d 1, 2 (Fla. 3d DCA 1984) (same). For these reasons, we conclude that the trial court erred in excluding the proffered testimony.

The State argues that any error in excluding the proffered testimony was harmless error. We disagree. Mr. Brown and the victim were the only witnesses to the incident. Thus, this was essentially a “he said, she said” case. Moreover, the trial court’s ruling deprived Mr. Brown of evidence that was important, if not critical, to establishing his defense. Under these circumstances, the State cannot satisfy its burden of showing that there is no reasonable possibility that the error contributed to the conviction. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

For the foregoing reasons, we reverse Mr. Brown’s judgment and sentence and remand for a new trial.

Reversed and remanded.

SILBERMAN and BADALAMENTI, JJ., Concur.


author: CASANUEVA, Judge.

text:
    H.R.N., Appellant, v. S.D.L. and Department of Revenue, Appellees.
    Case No. 2D15-5659
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017
    Robin H. Stevenson, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellees.
   CASANUEVA, Judge.

H.R.N., the father, appeals an order modifying the amount of child support he is required to pay for his two children with S.D.L., the mother. H.R.N. and S.DL.’s first child, B.R.N., was born in 2011, and an order was entered that same year establishing paternity and setting his monthly child support payments. Their second child, A.E.N., was born in 2014, and an order establishing paternity for A.E.N. was entered. This order also modified H.R.N.’s monthly child support obligation to include support for both children. We find no merit in H.R.N.’s argument that the trial court erred in calculating his monthly child support obligation.

However, the Department of Revenue correctly concedes that the trial court erred in determining the amount of retroactive child support due. The trial court began calculating retroactive child support beginning on January 13, 2014, the younger child’s date of birth. In doing so, it used a monthly support amount of $776, which includes $170 per week in child care expenses. At the hearing, which occurred on October 28, 2015, S.D.L. testified that she had been paying $170 a week in child care expenses for three months. Therefore, the trial court should have included the $170 weekly child care expense starting at the end of July 2015. Accordingly, it was error to require H.R.N. to pay $170 per week for child care expenses from January 13, 2014, to July 2015. We therefore reverse and remand this case for the trial court to recalculate the amount of retroactive child support due.

Affirmed in part; reversed and remanded in part,

WALLACE and KHOUZAM, JJ., Concur.


text:
    Byron E. MATHIS, Appellant, v. NATIONSTAR MORTGAGE, LLC; Unknown Spouse of Byron E. Mathis; Unknown Tenant in Possession 1 n/k/a Calvin Griffin; Unknown Tenant in Possession 2 n/k/a Sheila Griffin; Unknown Tenant in Possession 3 n/k/a Tookie Smith, Appellees.
    Case No. 2D15-2782
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017

      Michael E. Rodriguez of Foreclosure Defense Law Firm, P.L., Tampa, for Appellant.
    Nancy M. Wallace of Akerman .LLP, Tallahassee; William P. Heller of Aker-man LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP, West Palm Beach, for Appellee, Nationstar Mortgage, LLC.
    No appearance for remaining Appellees.
   WALLACE, Judge.

Byron Mathis challenges a final judgment of foreclosure entered in favor of Nationstar Mortgage, LLC (Nationstar), after a bench trial. He contends that there was insufficient evidence to prove Nations-tar’s standing -to foreclose as a holder in possession of the note, to which an allonge had been attached, secured, by the mortgage. Because Nationstar failed to submit the original allonge to the note for filing in the court file either before or at the time of trial, we reverse.

On May 22, 2007, Mr. Mathis executed a note in favor of Homecomings Financial, LLC (Homecomings Financial), ■ as the lender. The note was secured by a residential mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the lender. Homecomings Financial later indorsed the note to Residential Funding Company, LLC, which in turn indorsed the note to Deutsche Bank Trust Company Americas as Trustee .(Deutsche Bank). Deutsche Bank subsequently indorsed the note in blank on an allonge that was attached to the note. MERS assigned the mortgage to Aurora Bank FSB. In turn, Aurora Bank FSB’ assigned the mortgage to Nationstar on March 21,2013,

On July 31, 2014, Nationstar filed the underlying action to foreclose the mortgage. Nationstar attached to its complaint a copy of the note and the allonge, as well as a certificate evidencing its possession of the original note. On October 8, 2014, Mr. Mathis filed his answer and affirmative defenses to the complaint. Mr. Mathis denied Nationstar’s allegation that it was in “physical possession of the [n]ote endorsed in blank.” A few weeks later, Nationstar filed the original note in the court file, but failed to file the original allonge.

At trial, Nationstar attempted to prove its standing to foreclose the mortgage. Na-tionstar introduced several exhibits into evidence, including the mortgage and the original note. Nationstar also brought one of its senior default case specialists to testify that she was familiar with the records regarding Mr. Mathis’s loan and that Mr. Mathis had defaulted on his loan. The case specialist further testified, over Mr. Mathis’s best evidence rule objection, to the following: (1) she was familiar with the original note, (2) the note contained an allonge, (3) the allonge contained a blank indorsement, and (4) Nationstar possessed the allonge. However, Nationstar never produced the original allonge or offered it into evidence.

After Nationstar rested its case, Mr. Mathis immediately moved for an involuntary dismissal. Mr. Mathis ' argued that Nationstar had not proved its standing to enforce the note because it did not produce the original allonge. Mr. Mathis ■ emphasized that without the original allonge and its blank indorsement, Nationstar did not have standing to foreclose because the note itself was indorsed to Deutsche Bank. In response, Nationstar argued that Mr. Mathis waived his right to raise the issue ■of standing and that it was a nonholder in possession of the note. Without making any findings, except that . Nationstar proved its case by a preponderance of the evidence, the trial court entered a final judgment of foreclosure in favor of Na-tionstar,,

On appeal, Mr; Mathis argues that the trial court erred in ruling that Nations-tar had proved its standing to foreclose the mortgage. Specifically, Mr. Mathis contends that Nationstar failed to prove its standing because it did not file the original allonge to the note. In response, Nations-tar argues that because it was in possession of the original note indorsed in blank at the time of the commencement of the action in the circuit court, “nothing more is required for standing.,” Nationstar further argues that even without the original al-longe, it still qualifies as a holder in possession of the note.

Our review of whether a party has standing to foreclose is de novo. Gonzalez v. BAC Home Loans Servicing, L.P., 180 So.3d 1106, 1108 (Fla. 5th DCA 2015). To prove standing as a holder in possession of the note, a plaintiff must show that it was the holder of the note and mortgage at the time the foreclosure complaint was filed and at the time of trial. See ALS-RVC, LLC v. Garvin, 201 So.3d 687, 690-91 (Fla. 4th DCA 2016) (citing Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st DCA 2014)). “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.” Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013) (footnote omitted) (citing McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012)). Further, “[because an allonge is essentially part of the note,” it may be necessary for a mortgagee “to file the original allonge along with the original note” to prove standing. Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So.3d 1044, 1046 (Fla. 2d DCA 2016) (citing Isaac v. Deutsche Bank Nat’l Tr. Co., 74 So.3d 495, 496 n.1 (Fla. 4th DCA 2011)); cf. Purificato v. Nationstar Mortg., LLC, 182 So.3d 821, 822 (Fla. 4th DCA 2016) (noting that the mortgagee attached a copy of the original note and allonge to its complaint and subsequently produced the originals to prove standing at trial).

In Caballero, this court confronted a similar issue. There, the mortgagee, U.S. Bank, attached copies of the original note, mortgage, and allonge to its foreclosure complaint. 189 So.3d at 1045. The copy of the allonge bore a special indorsement to U.S. Bank. Id. However, when U.S. Bank later filed the original note, it failed to attach the original allonge. Id. Indeed, instead of attaching the original allonge, U.S. Bank attached an allonge that listed a different loan number. Id. Accordingly, we held that U.S. Bank’s documents were insufficient to establish its standing because U.S. Bank failed to file the original al-longe. M. We reasoned that “[bjecause an allonge is essentially part of the note, it was necessary for U.S. Bank to file the original allonge along with the original note.” Id. at 1046. Accordingly, we reversed the final judgment of foreclosure, concluding that the documents were insufficient to establish U.S. Bank’s standing. Id.

Here, the same principles apply. To establish its standing as holder in possession of the note as of the time of trial and as of the time the foreclosure complaint was filed, Nationstar needed to submit both the original note and the original allonge. Although Nationstar submitted the original note, it failed to submit the original allonge. Specifically, Nationstar needed to provide , the original allonge because it apparently bore a blank indorsement from Deutsche Bank. Such an in-dorsement was vital to Nationstar⅛ case because it was the very basis upon which Nationstar claimed to have standing to foreclose the mortgage. Indeed, without the production of the original allonge, the admissible evidence at trial reflected that the original note was still indorsed to Deutsche Bank. Thus, because Nationstar failed to submit the original allonge, there was insufficient evidence to establish Na-tionstar’s standing to enforce the note.

Furthermore, although the case specialist testified that Nationstar possessed the original allonge and that the allonge contained a blank indorsement, she did not provide any explanation about why the original allonge was unavailable. Accordingly, the case specialist’s testimony regarding the contents of the allonge was inadmissible under the best evidence rule. See §§ 90.952, .958(1), Fla. Stat. (2014) (providing that the original of a negotiable instrument, such as a promissory note, is required to prove the contents of the writing); Rattigan v. Cent. Mortg. Co., 199 So.3d 966, 967 (Fla. 4th DCA 2016) (holding that even though the bank testified to the contents of the written loan modification, the bank violated the best evidence rule by virtue of its failure to introduce the original written loan modification at trial or “a duplicate with an explanation as to why the original note was unavailable”); see also Heller v. Bank of Am., N.A., 209 So.3d 641, 643-44 (Fla. 2d DCA 2017) (discussing the best evidence rule).

Finally, we have considered Nationstar’s alternative arguments about standing, and we find them to be without merit. Therefore, we must reverse the final judgment and remand this case to the trial court with directions to enter an involuntary dismissal of Nationstar’s complaint. See Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 283 (Fla. 2d DCA 2014).

Reversed and remanded with directions.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . See §§ 90.952, .953, Fla. Stat. (2014).

      . We further note that surrendering the original promissory note and allonge was necessary "to remove it from the stream of commerce and prevent the [potential] negotiation of the note to another person.” Heller v. Bank of Am., N.A., 209 So.3d 641, 644 (Fla. 2d DCA 2017).

      . Although the note was specially indorsed to Deutsche Bank, such an indorsement does not necessarily preclude Nationstar from enforcing the note. See Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So.3d 884, 885 (Fla. 4th DCA 2016) (“Where a bank is seeking to enforce a note which is specially indorsed to another, the bank is a nonholder in possession.” (citing Murray v. HSBC Bank USA, 157 So.3d 355, 358 (Fla. 4th DCA 2015))). Nevertheless, even if Nationstar had alleged in its complaint that it was a nonholder in possession of the note, there was insufficient evidence at trial to support such a theory.


author: PER CURIAM.

text:
    M.O., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1903
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017
    Jason D. Sammis and Leslie M. Sammis, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We affirm the circuit court’s adjudication of delinquency and sentence in all respects except the restitution order, which, on the State’s confession of error, we reverse and remand for the court to-render proper findings. See M.W.G. v. State, 945 So.2d.597, 601 (Fla. 2d DCA 2006) (“When no evidence of what the child could reasonably be expected to earn is presented at the restitution hearing, the trial court cannot make a finding on this issue.”)

Affirmed in part; reversed in part; remanded.

NORTHCUTT, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: KELLY, Judge.

text:
    Calvin W. DOWD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-4961
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017.

      John H. Trevena and Cynthia E. Richards, Largo, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Calvin W. Dowd appeals from his judgment and' sentence for lewd and lascivious molestation. He raises three issues in this appeal, none of which require reversal.

Dowd first challenges the trial court’s order denying his motion to suppress the post-Miranda statements he made to sheriffs detectives. Dowd argues the totality of the circumstances demonstrate the statements are the product of coercive police tactics designed to extract an involuntary confession. We' disagree. When a defendant alleges his statement is the product of police coercion, courts must determine the voluntariness of the confession by- examining the totality of the circumstances. Traylor v. State, 596 So.2d 957, 964 (Fla. 1992). Dowd argues the trial court erred because it evaluated each of the detectives’ tactics separately instead of cumulatively. The trial court’s order demonstrates otherwise. The sixteen-page order shows the trial court thoroughly considered each factor Dowd raised as a part of its larger analysis of the totality of the circumstances. We find no error in the trial court’s analysis or in its. conclusion that “[t]he admission was a free choice made by a man who appeared burdened by a secret and relieved, even if only temporarily, by its revelation.”

Dowd also challenges the trial court’s decision to allow Wiliams Rule evidence. We need not decide whether the trial court abused its discretion in allowing the challenged evidence because after a careful review of the record on appeal, we are convinced beyond a reasonable doubt that the error, if any, did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

Finally, Dowd argues the trial court should have granted his motion to interview jurors. Dowd filed the motion pursuant to Florida Rule of Criminal Procedure 3.575. We review a trial court’s decision on a motion to interview jurors under an abuse of discretion standard. Gray v. State, 72 So.3d 336, 337 (Fla. 4th DCA 2011) (quoting Anderson v. State, 18 So.3d 501, 509 (Fla. 2009)). Rule 3.575 states as follows:

A party who has reason to believe that the verdict may be subject to legal challenge may move the court for an order permitting an interview of a juror or jurors to so determine. The motion shall be filed within 10 days after the rendition of the verdict, unless good cause is shown for the failure to make the motion within that time. The motion shall state the name of any juror to be interviewed and the reasons that the party has to believe that the verdict may be subject to challenge. After notice and hearing, the trial judge, upon a finding that the verdict may be subject to challenge, shall enter an order permitting the interview, and setting therein a time and a place for the interview of the juror or jurors, which shall be conducted in the presence of the court and the parties. If no reason is found to believe that the ■verdict may be subject to challenge, the court shall enter its order denying permission to interview.

Dowd’s motion alleged that an alternate juror approached members of his family and told them that before jury deliberations began, some jurors had discussed the trial. The alternate also said the jurors had elected the foreman on the first day of trial. Dowd contends the alternate juror’s allegations demonstrate the “verdict may be subject to challenge.” Accordingly, rule 3.575 requires the trial court to permit the interview.

The trial court denied Dowd’s motion after finding that the facts alleged by the alternate juror either pertained to matters that inhered in the verdict or that they did not demonstrate a reasonable possibility that Dowd was prejudiced. Dowd contends the trial court did not follow the proper procedure because it determined the issue of prejudice without first conducting any interviews. He argues that once he presented facts showing juror misconduct, the court should have ordered the interviews. After the interviews, the court could then conduct an evidentiary hearing at which the State would have to show the misconduct did not prejudice Dowd. We disagree. The trial court correctly recognized that absent a preliminary showing of prejudice, Dowd was not entitled to interview jurors.

At one time it was “common practice for counsel to interview jurors at the end of a trial, both to find out ‘what went wrong’ and for the general education of counsel.” Brassell v. Brethauer, 305 So.2d 217, 219 (Fla. 4th DCA 1974); see also Branch v. State, 212 So.2d 29, 32 (Fla. 2d DCA 1968) (noting that after a trial, the appellant’s counsel had a conversation with a juror “for his own betterment and education”); Bullard v. State, 324 So.2d 652, 655 (Fla. 1st DCA 1975) (Boyer, C.J., dissenting) (noting that it was an attorney’s “Right” to interview jurors after the trial and that it “was customary for attorneys to interview jurors after their discharge to determine whether or not their verdict was subject to any legal challenge”). In 1966, the Florida Bar asked the supreme court to “amend[ ] Canon 23 ... so as to terminate indiscriminate interviewing of jurors by requiring that a lawyer have ‘reason to believe’ [the verdict was subject to challenge] and that he file notice of his intention to interview.” Brassell, 305 So.2d at 219-20 (quoting In Re Canons of Ethics Governing Attorneys, 186 So.2d 509, 510 (Fla. 1966)); see also Branch, 212 So.2d at 32 (noting that Canon 23 prohibits inquiry by an attorney of a juror except to challenge for legal cause).

Canon 23 was the predecessor of Disciplinary Rule 7-108(D) and Ethical Consideration 7-29 of the Code of Professional Responsibility. Ethical Consideration 7-29 identified the circumstances under which an attorney could interview a juror:

Both before and during the trial, a lawyer should avoid conversing or otherwise communicating with a juror on any subject, whether pertaining to the case or not. Subject to any limitations imposed by law it is a lawyer’s right,- after the jury has been discharged, to interview the jurors solely to determine whether their verdict -is subject to any legal challenge [provided he has reason to believe that ground for such challenge may exist, and further provided that prior to any such interview ... he shall file in the cause, and deliver a copy to the trial judge and opposing counsel, a notice of intention to interview such juror or jurors setting forth in such notice the name of each such juror.

Brassell, 305 So.2d at 219 (quoting Ethical Consideration 7-29).

In Brassell, the court was tasked with deciding what role, if any, the court played under this provision. After reviewing the provision’s history, the court rejected the argument that the trial court’s only' role was simply to receive the notice. Instead, it held the trial court had a duty to determine whether the party seeking the interview “had reason to believe the verdict was defective.” 305 So.2d at 220. Given that, it concluded “a fair reading of the rule requires the notice to contain a recitation of the known facts giving rise to the ‘reason to believe that ground for such challenge may exist.’” Id. at 219 (quoting• Ethical Consideration 7-29). The court held that if the notice did not demonstrate a “reasonable ground to believe” the verdict was subject to challenge, a trial court could prohibit the interview. Id.

In 1976, less than two years after the court in Brassell faced the question of how to implement Disciplinary Rule 7-108, the supreme court adopted Florida Rule of Civil Procedure 1.431(g) to “establish a procedure for interviewing jurors.” In re The Fla. Bar, Rules of Civil Procedure, 339 So.2d 626, 629 (Fla. 1976) (citing DR 7-108 and explaining “[s]ubdivision (g) has been added to establish a procedure for interviewing jurors”). In pertinent part, rule 1.431(h) provides:

A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject -to the challenge. ... The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist.[ ]

It was not until 2004 that the supreme court adopted Florida Rule of Criminal Procedure 3.575. In adopting the rule the court' explained that

unlike the rules of Civil Procedure, the Rules of Criminal Procedure do not provide a procedure for interviewing jurors. Instead ... criminal attorneys have relied on Rule Regulating the Florida Bar 4—3.5(d)(4) which allows an attorney to interview, a juror to determine whether the verdict may be subject to legal challenge after filing a notice of intention to interview.

Amendments to the Fla. Rules of Criminal Procedure, 886 So.2d 197, 198-99 (Fla. 2004) (footnotes omitted). The court included commentary explaining.the rule “does not abrogate” the procedure provided for in rule 4-3.5. Id. at 209. This seems at odds with the commentary to rule 1.431(h) which explains the court-adopted rule 1.431(h) to establish a procedure for interviewing jurors under what was then DR 7-108, not as an alternative to that rule. Whether counsel should proceed under the applicable procedural rule or under the Bar’s rule is largely academic, however. As we will explain, each rule requires counsel to-make the same showing before the court may allow a juror interview.

In Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97 (Fla. 1991), the supreme court clarified the showing counsel must make before a trial court can permit a juror interview. Emphasizing the “strong public policy against allowing litigants either to harass jurors or to upset a verdict by attempting to ascertain some improper motive underlying it,” the court held “an inquiry is never permissible unless the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial.” Id. at 100. The court explained its holding was intended to clarify language In State v. Hamilton, 574 So.2d 124 (Fla. 1991), that it believed could be construed to authorize a juror interview “even though the alleged misconduct [by a juror] was of a type highly unlikely to indicate any prejudice whatsoever.” Maler, 579 So.2d at 100. The court concluded stating, “the case law on this topic allows inquiry only into objective acts committed by or in the presence of the jury or a juror that might have compromised the integrity of the fact-finding process.” Id. at 101; see also Johnson v. State, 804 So.2d 1218, 1225 (Fla. 2001) (“As explained ... in [Maler], juror interviews are not permissible unless the moving party has made sworn allegations that, if true, would require the court to order a new trial because the alleged error was so fundaméntal and prejudicial as to vitiate the entire proceedings”). The supreme court has applied this standard regardless of whether the request came via rule 1.431(h), rule 4-3.5(d)(4), or rule 3.676, See, e.g., Johnson, 804 So.2d at 1224-25 (applying Malér standard to a request under rule 4—3.5(d)(4)); see also Crain v. State, 78 So.3d 1025, 1045 (Fla. 2011) (citing Maler standard as applicable to requests under rule 3.575 and rule 4-3.5). Thus, although the wording of these rules is not identical, the differences are not substantive in terms of what a party must démonstrate before the court will allow a juror to be interviewed.

The trial court properly utilized this standard in analyzing Dowd’s motion. The motion alleged generally that the alternate juror claimed the jury “constantly discussed” the case among themselves. The only specifics provided were that the jury discussed how the verdict might impact the defendant’s son, how the judicial sys-tern was unfair to defendants, how- the dates of the offense did not make sense, that the testimony was confusing, and that the detective who investigated the case was not credible. Jurors also expressed opinions regarding the victim’s mother’s treatment of,the victim and speculated about what sentence Dowd might receive. Finally, the motion alleged the jury selected a foreman on the first day of trial.

First, the trial court correctly recognized Dowd could not question jurors about whether they were influenced by speculation regarding his potential sentence. The law does not permit inquiry into the “emotions, mental processes, or mistaken beliefs of jurors.” Maler, 579 So.2d at 99; see also Hamilton, 574 So.2d at 128 (citing section 90.607(2)(b), Florida Statutes (1987), of the Florida Evidence Code as the basis for this prohibition). The same is true regarding the discussions about how the verdict might impact Dowd’s son.

The trial court also correctly recognized the comments about- the judicial system being unfair ,to defendants did not amount to discussions about the facts of the case, nor did the comments demonstrate any possible prejudice to Dowd. Likewise, the court correctly found the allegation that jurors prematurely discussed who would be foreman did not go to any issue in the case and did not. demonstrate prejudice. See, e.g., Johnson v. State, 696 So.2d 317, 324 (Fla. 1997) (explaining that jurors’ premature discussion of a jury foreperson was improper but was not prejudicial because it did not go to any issue in the case and therefore could not have influenced the outcome).

Finally, with respect to the remaining comments, the trial court recognized that while they may have amounted to discussions about the case, they were not “so prejudicial as to vitiate the entire proceedings and require a new trial.” See Crain, 78 So.3d at 1045. In Johnson, the .supreme court described comments similar to those alleged in this case as improper but not prejudicial because they were “simply a reaction” to testimony and did not suggest the jury had formed a premature opinion regarding the defendant’s guilt or that it had received any extrinsic information. See 696 So.2d at 323-25 (citing Amazon v. State, 487 So.2d 8, 11-12 (Fla. 1986)). Nor do comments in this case suggest the jurors agreed “to disregard their oaths and ignore the law.” See Sheppard v. State, 151 So.3d 1154, 1172 (Fla. 2014) (citing Reaves v. State, 826 So.2d 932, 943 (Fla. 2002)). Absent allegations of an overt prejudicial act, external influence, or an actual, express agreement between two or more jurors to disregard then-oaths and instructions, the court may not order a juror interview. See Reaves, 826 So.2d at 943; Devoney v. State, 717 So.2d 501, 501-04 (Fla. 1998); Russ v. State, 95 So.2d 594, 598-601 (Fla. 1957).

Dowd cites Ramirez v. State, 922 So.2d 386 (Fla. 1st DCA 2006), in support of his argument that the trial court erred when it evaluated prejudice before allowing the jurors to be interviewed. Ramirez holds that once a claim of premature deliberations is asserted, the defendant has apprised the trial court “of ‘reasons ... to believe that the verdict may be subject to challenge,’ ” and the court must allow the jurors to be interviewed. Id. at 389-90 (quoting Fla. R. Crim. P. 3.575). It then explains that “[a]t any evidentiary hearing after an opportunity for juror interviews on remand, the initial burden will be on the defense” to show prejudice resulted or that the conduct was such that it raised the presumption of prejudice. Id. at 390 (quoting Russ, 95 So.2d at 600-01). What Dowd overlooks is that not all juror discussions amount to “premature deliberations.” See, e.g., Sheppard, 151 So.3d at 1172. “Premature deliberations” refers to discussions in which jurors have expressed opinions regarding a defendant’s guilt before the close of the evidence. See, e.g., Johnson, 696 So.2d at 324. In Ramirez, jurors were alleged to have discussed the defendant’s guilt before the close of all the evidence. Id. at 387-88. Here, we have no such allegation. The court in Ramirez did not discuss the trial court’s initial role in evaluating the likelihood of prejudice to the defendant because it was unnecessary to do so given the facts in that case. The defendant’s allegations in Ramirez set forth a prima facie case of premature deliberations and thus raised a possibility of prejudice sufficient to warrant juror interviews. 922 So.2d at 390; see also Sheppard, 151 So.3d at 1172 (“[A] claim of premature jury deliberations sufficient to require questioning of the entire jury panel requires that multiple jurors discuss the case together and discuss their opinions as to the proper verdict.”).

Dowd has not shown any error by the trial court that would warrant a reversal of his judgment and sentence. Accordingly, we affirm.

Affirmed.

BLACK and BADALAMENTI, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . Rule 1.431(g) has since been redesignated as (h). See Committee note to Fla. R. Civ. P. 1.431, 1988 Amendment.

      . Effective January 1, 2017, subsection (h) was amended to provide additional time to file the motion and to use "must” rather than "shall.” In re Amendments to the Fla. Rules of Civil Procedure, 199 So.3d 867, 883 (Fla. 2016).

      . Rule 3.575 was adopted in October 2004 and became effective January 1, 2005. Amendments to the Fla. Rules of Criminal Procedure, 886 So.2d 197, 200 (Fla. 2004).

      . The restriction on juror interviews is now found at rule 4-3.5(d)(4) of the Rules of Professional Conduct. The rule has been editorially revised somewhat, but the substance is unchanged.

      . Maler’s reference to "sworn allegations” has caused confusion because that language is neither in rule 1.431 nor is it in rule 3.575. In City of Winter Haven v. Allen, 589 So.2d 968, 969 (Fla. 2d DCA 1991), this court noted Maler "effectively amended Florida Rule of Civil Procedure 1.431(h) to require that a motion to interview be accompanied by 'sworn factual allegations.' ” In Ramirez v. State, 922 So.2d 386, 389 (Fla. 1st DCA 2006); the court stated that the supreme court in Maler "necessarily disavowed its dicta (and any possible holding) requiring sworn allegations ... when it adopted Rule 3.575, which contains no requirement that any motion filed under the rule be verified.” Ramirez overlooks the fact that when the court decided Maler, rule 1.431 had already been adopfed, and it did not require sworn allegations. Further, the supreme court continues to use the standard announced in Maler, including the need for sworn • allegations, even where an interview is sought under rule 3.575. See, e.g., Crain v. State, 78 So.3d 1025, 1045 (Fla. 2011). Given that, it seems unwarranted to assume the supreme court intended to disavow that statement in Maler.

      . We acknowledge dicta in Defrancisco v. State, 830 So.2d 131, 133 (Fla. 2d DCA 2002), stating a party seeking a juror interview under rule 4-3.5 has a less demanding burden than under rule 1.431(h). As expláined above, the case law from the supreme court contradicts this observation.

      . Section 90.607(2)(b) provides that ”[u]pon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.” This evidentiary rule codifies the Iowa rule iteration of the common law no-impeachment rule. It is this limit on what jurors may testify to postverdict that undergirds' the circumstances in which courts have allowed juror interviews. See Hamilton, 574 So.2d at 128; see also Devoney v. State, 717 So.2d 501 (Fla. 1998).


author: WALLIS, J.

text:
    Jordon J. RASINSKI, Appellant, v. Michael P. MCCOY, Appellee.
    Case No. 5D15-4423
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 4, 2017

      David C. Knapp and James A. Coleman, of James A. Coleman, P.A., Orlando, for Appellant.
    Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A., Orlando, for Appellee.
   WALLIS, J.

Jordon J. Rasinski appeals the final judgment finding him 100% liable for an automobile accident that caused permanent injury to Michael P. McCoy, for which the jury awarded McCoy $2,130,000 in damages. Rasinski argues the trial court erred by: (1) denying his motion for new trial due to opposing counsel’s improper closing argument; (2) denying his motions for directed verdict, new trial, and remitti-tur on three grounds; and (3) denying his motion to determine set-off.

We affirm the trial court’s denial of Ra-sinski’s motion for new trial based on the alleged improper closing arguments to which he did not object. We also affirm the trial court’s denial of Rasinski’s requested relief from the jury’s award for pain and suffering and future medical expenses. We reverse the trial court’s denials of Rasinski’s motions for remittitur relating to lost earning capacity and to set off $25,037.56 frotn the final judgment, an amount for which McCoy’s healthcare provider waived any right to. subrogation or reimbursement,

FACTS

In January 2010, McCoy filed a complaint for negligence against Rasinski following an automobile accident in Seminole County. At trial in December 2013, McCoy testified that he worked in public utilities for twenty years prior to the subject accident. McCoy also previously owned a bait and tackle shop. He eventually left both of those jobs and began working as a plumber. In his first ten years as a plumber, McCoy performed “mostly commercial work,” which he described as “physically demanding” and “hands-on.”

McCoy testified that his hourly wage as a plumber fluctuated between $18 and $19.50. He fürther explained that, for the eighteen months preceding trial, he switched to “more of a quality control” position, performing only minor plumbing duties without any corresponding reduction in his pay. McCoy expressed a desire to work until the age of sixty-five, but cautioned, “If I get laid off or move to another job I don’t believe I’ll be able to work in [the plumbing] field anymore.” McCoy elaborated as follows:

I have a fear that I work for this present company that’s been pretty good to me. Lots of times the way the construction has been in this economy, there’s pretty close that I’ll be laid off within another month or two because we really don’t have much work and I don’t believe I can go back to doing what I’m doing. ... I don’t believe I can go back to doing manual labor.

On cross-examination, McCoy explained that he began working for his current employer in December 2012—nearly three years after the accident. McCoy conceded that, in his employment application, he represented that he was physically capable of pei’forming all plumbing duties. Following the accident, McCoy continued to work full time despite undergoing frequent chiropractic care.

The jury returned a verdict finding Ra-sinski 100% liable for the accident and awarding McCoy $2,130,000 in damages: $160,000 for past medical expenses; $10,000 for past lost earnings; $500,000 for future medical expenses; $260,000 for lost earning capacity; $200,000 for past pain and suffering; and $1,000,000 for future pain and suffering. Rasinski unsuccessfully challenged the award for lost earning capacity in motions for both new trial and remittitur, reasoning that McCoy offered no evidence from which the jury could calculate his damages with reasonable certainty. Rasinski also filed a motion to determine set-off, urging the trial court to reduce the judgment by several collateral source payments. The trial court denied Rasinski’s motions pertaining to the award for lost earning capacity, reserving ruling on his request for set-offs.

In June 2014, the trial court entered a final judgment in accordance with the verdict. The trial court determined that, after applying some undisputed set-offs, McCoy was entitled to recover $2,030,000. Rasin-ski then moved to alter or amend the final judgment, arguing the trial court failed to reduce the judgment by “the amount of all collateral source payments for which there is no obligation for reimbursement.” The trial court denied Rasinski’s motion regarding these additional set-offs.

LOSS OF EARNING CAPACITY

We review a trial court’s ruling on a motion for remittitur or new trial for an abuse of discretion. Castillo v. Bush, 902 So.2d 317, 319 (Fla. 5th DCA 2005) (new trial); S & S Toyota, Inc. v. Kirby, 649 So.2d 916, 921 (Fla. 5th DCA 1995) (remit-titur). The applicable law on remittitur is found in section 768.043(1), Florida Statutes (2013), which provides:

In any action for the recovery of damages based on personal injury ... arising out of the operation of a motor vehicle, .,. wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remittitur or addi-tur' does not agree, the court shall order a new trial in the cause on the issue of damages only.

Pursuant to section 768.043(1), “only when' the parties agree with the trial court’s amount of remittitur, or additur will the remittitur or additur be enforced in lieu of a. new trial.” Waste Mgmt., Inc. v. Mora, 940 So.2d 1105, 1109 (Fla. 2006).

The Florida Supreme Court has cautioned that a plaintiff may recover damages for loss of earning capacity only “when such damages are established with reasonable certainty.” Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89, 91 (Fla. 1995). Tompkins clarified that the plaintiff need not necessarily demonstrate a permanent injury, but “it is a significant factor in establishing the reasonable certainty of future damages.” Id. To establish a claim for loss of future earning capacity, the plaintiff must introduce “reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss.” Hubbs v. McDonald, 517 So.2d 68, 69 (Fla. 1st DCA 1987) (quoting Long v. Publix Super Mkts., Inc., 458 So.2d 393, 394 (Fla. 1st DCA 1984)). After the plaintiff introduces evidence sufficient to warrant an award for lost earning capacity, the jury should consider “all relevant factors including the plaintiffs age, health, habits, occupation, surroundings, and earnings before and after the injury.” W.R. Grace & Co.-Conn. v. Pyke, 661 So.2d 1301, 1302 (Fla. 3d DCA 1995) (citing Atl. Coast Line R.R. v. Ganey, 125 So.2d 576 (Fla. 3d DCA I960)).

In this case, McCoy offered evidence insufficient to support the jury’s award for loss of earning capacity. McCoy’s own trial testimony proved that he continued to work after the accident, earning between $18 and $19.50 per hour as a plumber—the same hourly wage he earned before the accident. In fact, McCoy did not even begin working for his employer at the time of trial until after the accident. McCoy’s testimony questioning his future job security amounted to pure speculation and does not serve as a proper basis for the award of lost earning capacity. See Pyke, 661 So.2d at 1303 (“The testimony that there was a possibility that [plaintiff] would lose his job was irrelevant, purely speculative and inappropriate.”). In other words, McCoy failed to demonstrate that he “was completely disabled from further gainful employment” or that he “was unable to work to the same age [he] would have otherwise.” Volusia Cty. v. Joynt, 179 So.3d 448, 451-52 (Fla. 5th DCA 2015). Although the evidence established that McCoy suffered permanent injuries to his neck and back from the accident, he nonetheless failed to introduce “a monetary standard against which the jury [could] measure any future loss.” Hubbs, 517 So.2d at 69.

Based on the foregoing, we find that the trial court abused its discretion by denying Rasinski’s motions for remittitur and new trial as to loss of earning capacity. We reverse the portion of the final judgment awarding damages for loss of earning capacity and remand for the trial court to either enter a remittitur or grant a new trial solely on the issue of damages for loss of earning capacity. See § 768.043(1), Fla. Stat.; Truelove v. Blount, 954 So.2d 1284, 1289-90 (Fla. 2d DCA 2007).

COLLATERAL SOURCE SET-OFFS

We review de novo a trial court’s ruling on a motion to determine set-off. Cornerstone SMR, Inc. v. Bank of Am., N.A., 163 So.3d 565, 568 (Fla. 4th DCA 2015).. Section 768.76, Florida Statutes (2013), provides, in pertinent part:

(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.
(5) Any disputes between the claimant and the provider as to the actual amount of collateral sources recovered by the claimant from a tortfeasor shall be subject to determination by a court-of competent jurisdiction. In determining the actual amount of collateral sources recovered, the court shall give consideration to any offset in the amount of settlement or judgment for any comparative negligence of the claimant, limitations in the amount of liability insurance coverage available to the tortfeasor, or any other mitigating factors which the court deems equitable and appropriate under the circumstances.

This section abrogated the common law rule prohibiting reduction of damages from collateral source payments in an effort to “reduce insurance costs and prevent plaintiffs from receiving windfalls.” Joerg v. State Farm Mut. Auto. Ins. Co., 176 So.3d 1247, 1249 (Fla. 2015). For evidentiary purposes, “payments from collateral source benefits are not admissible because such evidence may confuse the jury with respect to both liability and damages.” Id. (citing Sheffield v. Superior Ins. Co., 800 So.2d 197, 203 (Fla. 2001)).

In this case, Rasinski requested that the trial court set-off, inter alia, $25,037.56 in payments furnished by McCoy’s healthcare provider for which it released its lien and waived subrogation. The trial court denied Rasinski’s motion on the basis that he could not argue for additional set-offs after presenting expert testimony to challenge the reasonableness of McCoy’s medical bills, which resulted in the jury awarding a reduced award for past medical expenses. However, Rasinski did not request that the jury further reduce the award by the $25,037.56 at issue here. We find that this payment constitutes a collateral source under section 768.76(1) because McCoy does not dispute that the healthcare provider released its lien and waived subrogation. See § 768.76(1), Fla. Stat. (“[T]here shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.”). Accordingly, we reverse and remand for the trial court to enter a set-off in the amount of $25,037.56.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

PALMER and LAMBERT, JJ., concur.

      . We emphasize that our affirmance on this issue should not be interpreted as condoning plaintiff's counsel’s conduct in his closing argument, Rather, we find that the several unobjected-to comments do not rise to the level of egregiousness warranting a new trial as outlined by the Florida Supreme Court in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1031 (Fla. 2000).

      . We affirm the trial court's rulings on Rasin-ski’s additional set-off requests.


text:
    Juan GUEVARA, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3464
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017

      William R. Ponall of Ponall Law, Mait-land, and Matthew P. Ferry, of Lindsey & Ferry, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Bonnie Jean Parrish and Marjorie Vincent-Tripp, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Juan Guevara (“Appellant”) appeals the trial court’s summary denial of his Florida Rule of Criminal. Procedure 3.850 motion, filed after Appellant pled no contest to the offenses of cultivation of cannabis and theft of utilities. Appellant raised two claims in his 3.850 motion, contending counsel was ineffective for (1) failing to advise Appellant of a meritorious suppression issue and (2) misadvising Appellant of the deportation consequences of his plea. We reverse and remand for an evidentiary hearing on Appellant’s first claim and affirm as to the second claim without discussion.

On the day of Appellant’s arrest, officers approached his home and knocked on his door after receiving complaints of a grow operation at Appellant’s home. Appellant answered, but refused to allow the officers to search his home.. Nevertheless,, while standing at the front door, the officers detected the smell of marijuana emanating from Appellant’s residence. Thereafter, the officers placed Appellant in handcuffs and conducted a “security sweep” of Appellant’s home. Subsequently, the officers secured a search warrant and discovered a grow operation in the residence consisting of thirty-six cannabis plants.

In his rule 3.850 motion, Appellant alleged that (1) his residence was not open to the public; (2) postal workers were not free to approach his home; (3) there was a large amount of land and a lengthy driveway between his residence and the public road; (4) the driveway was blocked by a chain; and (5) a sign indicating “Private Property, Keep Out” was posted at the end of the driveway. Based on these allegations, Appellant asserts that he had a reasonable expectation of privacy in the land that stretched from the front, of his home, to the public road; thus, (the officers lacked the authority to enter onto his land without having first secured a warrant. Furthermore, Appellant argues that because the officers’ entry onto Appellant’s land prior to knocking on his front door was unauthorized, any search of his residence that followed violated his Fourth Amendment right to be secure from an unreasonable search and seizure. Accordingly, Appellant contends that defense counsel was ineffective for failing to advise him of a potentially meritorious motion to suppress, and that had Appellant been so advised, he would not have entered his plea.

To prevail on a claim of ineffective assistance of counsel, a party must demonstrate both deficient performance by counsel and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant cannot establish deficient performance for failure to pursue the suppression of evidence where the defendant fails to allege meritorious grounds for relief. See Zakrzewski v. State, 866 So.2d 688, 694 (Fla. 2003). Moreover, “in order to establish the prejudice prong of Strickland the defendant ‘must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Bush v. State, 964 So.2d 181, 182 (Fla. 4th DCA 2007) (citing Zakrzewski, 866 So.2d at 694 (quoting Hill v. Lockhart, 474 U.S. 52, 57, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985))).

As the State concedes, the facts as alleged by Appellant, which we are required to accept as true, set forth a facially sufficient claim for ineffective assistance of counsel. Cf. Bainter v. State, 135 So.3d 517, 520 (Fla. 5th DCA 2014) (reversing order denying defendant’s motion to suppress because “the posting of ... signs and the fencing of the entire property, including a push gate at the entrance to the driveway, exhibited the defendant’s actual, subjective expectation of privacy” in a manner that society is prepared to recognize as reasonable and, thus, law enforcement was first required to obtain a warrant before entering onto defendant’s property). Moreover, the record before this court does not conclusively refute Appellant’s allegations on this claim. Therefore, we reverse the summary denial of Appellant’s motion on this ground and remand for an evidentiary hearing. We otherwise affirm.

AFFIRMED in Part; REVERSED in Part; and REMANDED.

PALMER, EDWARDS and EISNAUGLE, JJ., concur.

      . Thomas v. State, 162 So.3d 1084, 1085 (Fla. 5th DCA 2015).