author: THE COURT: NORTHCUTT, Judge.

text:
    Joseph Lee FRYE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D12-6418
    District Court of Appeal of Florida, Second District.
    June 9, 2017
    Howard L. Dimmig, II, Public-Defender, and David B. Falstad, Special Assistant Public Defender; Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   BY ORDER OF

THE COURT:

The State’s motion for clarification is granted in part. The prior opinion, dated September 16, 2016, contained a typographical error indicating that Mr. Frye went to trial in December 2010 without a competency determination.. Instead, Frye went to trial without a competency determination in December 2012. The prior opinion is withdrawn, and the attached opinion is substituted only to correct this error. No further motions will be entertained.

NORTHCUTT, Judge.

The trial court initially adjudicated Joseph Frye incompetent to stand trial and committed him for treatment. Although the specialists appointed to determine Frye’s competency later opined that it had been restored, he was then tried without the court first adjudicating him to be competent. Frye appealed the resulting convictions, and we relinquished jurisdiction to give the trial court an opportunity to attempt an assessment of Frye’s competence at the time of trial. On July 29, 2015, a nunc pro tunc competency hearing was held and the trial court ruled that Frye had been competent during his trial in December 2012. We find that the trial court’s order was not supported by competent substantial evidence, and we reverse Frye’s convictions.

“Once found incompetent, a presumption clings to the criminal defendant that the state of incompetence persists until a court, after proper notice and a hearing, finds otherwise.” Roman v. State, 163 So.3d 749, 750-51 (Fla. 2d DCA 2015) (quoting Molina v. State, 946 So.2d 1103, 1105 (Fla. 5th DCA 2006)). Once the trial court receives notice that a defendant has regained competency, “the court shall hold a hearing to determine if a defendant is competent to proceed.” Id. at 751. Generally, a trial court’s failure to determine that a defendant regained competency prior to trial requires that his conviction be reversed. Dougherty v. State, 149 So.3d 672, 678-79 (Fla. 2014).

In some situations, however, competency may be determined retrospectively, although such after-the-fact determinations are “inherently difficult, even under the most favorable circumstances.” Id. at 679; see also Drope v. Missouri, 420 U.S. 162, 183, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). “[A] nunc pro tunc competency evaluation could be done where ‘there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.’” Dougherty, 149 So.3d at 679 (emphasis added) (quoting Mason v. State, 489 So.2d 734, 737 (Fla. 1986)). “The chances of conducting a meaningful retrospective competency hearing decrease when experts must rely on a cold record.” Id. (quoting Jones v. State, 740 So.2d 520, 523 (Fla. 1999)).

During the nunc pro tunc competency hearing in this case, the trial court considered the testimony and reports of two mental health experts. But both experts were specifically appointed to offer retrospective opinions of Frye’s competency at the time of trial. Both opined that Frye had been competent throughout. The experts reported that they attempted brief interviews with Frye in May 2015 and also reviewed an assortment of documentary evidence—psychiatric evaluations from 2010, miscellaneous trial transcripts, a recorded police interview from 2009, jail phone calls, and jail pharmacy records. This evidence, by itself, cannot satisfy Dougherty’s criteria where neither expert had observed or examined Frye at or near the time of trial. The record establishes that one expert had no contact with Frye during the two and a half years preceding trial. The second expert acknowledged meeting Frye for the first time in May 2015. A nunc pro tunc competency witness cannot, as the experts did in this case, rely solely on a cold record.

We reject the trial court’s order retroactively finding Frye competent because this finding was not supported by competent substantial evidence. We also reverse Frye’s convictions and remand for new trial. However, we caution that as of this time, there remains a presumption that Frye is incompetent to stand trial. Before trying Frye anew on remand, the trial court must first conduct a hearing to determine whether Frye is competent to proceed.

Reversed and remanded for further proceedings.

CRENSHAW and BLACK, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joshua Daneel GLOSTON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1834
    District Court of Appeal of Florida, First District.
    Opinion filed June 9, 2017
    Matt Shirk, Public Defender, Jason Mathew Gropper and Elizabeth Webb, Assistant Public Defenders, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on January 27, 2016, in Duval County Circuit Court case number 2015-CF-00618-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the lower tribunal has appointed the Office of the Public Defender to represent petitioner on appeal.

B.L. THOMAS, OSTERHAUS, and WINSOR, JJ., CONCUR.


text:
    Brian BASHARA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5455
    District Court of Appeal of Florida, Second District.
    Opinion filed June 14, 2017
    Brian Bashara, pro se.
   PER CURIAM.

Brian Bashara challenges the order denying his motion for jail credit filed under Florida Rule of Criminal Procedure 3.801. We reverse the postconviction court’s order and remand for the court to strike Bashara’s motion and grant him sixty days to file a sufficiently pleaded amended motion. See Fla. R. Crim. P. 3.801(e) (incorporating, in pertinent part, rule 3.850(f)(2)).

In his motion for jail credit, Bashara simply asserted that the court file conclusively demonstrated that his award of jail credit was deficient by 200 days; he did not include the detailed facts and allegations required by rule 3.801(c)(l)-(5). Rather than striking the facially insufficient motion and allowing Bashara to amend it as required by rule 3.801(e), the postconviction court entered a detailed order with record attachments finding that Bashara was not entitled to any more jail credit than he was awarded.

On appeal, Bashara filed an initial brief making detailed allegations concerning his claim of jail credit deficiency that the attachments to the postconviction court’s order do not refute. Because the postconviction court did not provide Bashara with an opportunity to amend his facially insufficient motion, we reverse and remand with directions for the court to allow Bashara sixty days to amend his motion to comply with rule 3.801(c).

Reversed and remanded with directions.

LaROSE, CRENSHAW, and MORRIS, JJ., Concur.


text:
    Joni Beckett HART, Mother, Appellant, v. Steven E. STREITZ, Father, Appellee.
    CASE NO. 1D16-0715
    District Court of Appeal of Florida, First District.
    Opinion filed June 14, 2017
    Beth M. Gordon, The Gordon Law Firm, Williston, for Appellant.
    Steven E. Streitz, pro se, Appellee.
   PER CURIAM.

• Joni Beckett Hart (“the Mother”) filed a motion for modification of timesharing and parental responsibility. The trial court denied the motion after an evidentiary hearing, reasoning that there had not been a substantial change in circumstances. Seeking to challenge the trial court’s order, the Mother filed a statement of the evidence with the trial court pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). The trial court disapproved the Mother’s statement of the evidence because of its many factual inaccuracies and omissions. The Mother did not seek approval of a second statement of the evidence. Instead, she filed the instant appeal.

A statement of evidence or proceedings prepared by a party in lieu of a transcript must be approved by the court. Fla. R. App. P. 9.200(b)(4). The proceedings below were not transcribed, and we do not have before us an approved statement of the evidence on which to rely. As such, we are without an adequate record to judge the merits of the Mother’s claims. Moreover, the Mother has not developed any argument that might require a reversal on the face of the order without any further record. Accordingly, we are constrained to affirm. See Kirchinger v. Kirehinger, 546 So.2d 86, 86-87 (Fla. 2d DCA1989).

AFFIRMED.

KELSEY, WINOKUR, and WINSOR, JJ., CONCUR.


text:
    Marvin SLOCUM, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4353
    District Court of Appeal of Florida, First District.
    Opinion filed June 14, 2017

      Andy Thomas, Public Defender, Maria Ines Súber, Assistant Public Defender, Tallahassee, for Appellant,
    Pamela Jo Bondi, Attorney General, Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Marvin Slocum, appeals his convictions and sentences for possession of cocaine and possession of drug paraphernalia and raises five issues, only one of which merits discussion. Appellant argues that the trial court erred in allowing the State to introduce evidence concerning the cash found in his bedroom because the evidence was not relevant to any issue at trial. The State properly concedes on appeal that it was error to introduce the evidence of the cash. See., e.g., Brunson v. State, 31 So.Bd 926, 929 (Fla. 1st DCA 2010) (“Florida ease law establishes cash found on a defendant is irrelevant to prove a possession of contraband charge.”). However, the State argues that the error was harmless. The harmless error test places the burden on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the error did not contribute to the verdict and requires an examination of the entire record. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986). After a close examination of the record, we cannot conclude that the State has met this standard. Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED for a new trial.

ROBERTS, C.J., LEWIS, and WINSOR, JJ., CONCUR.


text:
    CLAY COUNTY LAND TRUST, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION as Indenture Trustee FOR FBR SECURITIZATION TRUST 2005-3, Callable Mortgage-Backed Notes, 2005-3, Appellee.
    CASE NO. 1D15-2113
    District Court of Appeal of Florida, First District.
    Opinion filed June 14, 2017
    An appeal from the Circuit Court for Clay County. Frederic A. Buttner, Judge.
    Aisa D. Wilkes, Jacksonville, for Appellant.
    Michele .L. Stocker,- Greenberg Traurig, P.A., Ft. Lauderdale; Karusha Y. Sharpe, Greenberg Traurig, P.A., Tallahassee; Kimberly S. Mello, Greenberg Traurig, P.A., Tampa, for Appellee.
   PER CURIAM.

Appellant, Clay County Land Trust, appeals a foreclosure judgment entered in favor of Appellee, HSBC Bank USA, National Association. During the pen-dency of this appeal, a bankruptcy proceeding was initiated involving several land trusts, including Appellant, and several properties, including the one at issue in this case. Appellee has now moved to dismiss this appeal based upon a stipulation that was entered in the bankruptcy proceeding wherein the land trusts, including Appellant, “surrendered] any and all of their interest(s)” in the properties. We agree with Appellee that the stipulation rendered this appeal moot and that Appellant is judicially estopped from now proceeding with its challenge to the foreclosure judgment. See Olmsted v. Emmanuel, 783 So.2d 1122, 1126 (Fla. 1st DCA 2001) (noting that the equitable doctrine of judicial estoppel prevents litigants from taking totally inconsistent positions in separate judicial proceedings to the prejudice of the adverse party); see also In re Metzler, 530 B.R. 894, 899 (Bankr. M.D. Fla. 2015) (holding that the term “surrender” means “not taking an overt act to prevent the secured creditor from foreclosing its interest in the secured property”); Rivera v. Bank of Am., N.A., 190 So.3d 267, 267 (Fla. 5th DCA 2016) (dismissing the appeal, noting that the appellant admitted in the bankruptcy proceeding that he owed a mortgage debt to the appellee and the bankruptcy court entered an order confirming the debt and “surrender” of the property, and determining that “Appellant’s actions and the orders of the bankruptcy court have fully resolved' this matter”). We, therefore, grant Appellee’s motion and dismiss this appeal. ■

DISMISSED.

LEWIS, B.L. THOMAS, and ROWE, JJ., CONCUR.


author: THE COURT: -WALLACE, Judge.

text:
    John DESYLVESTER, Appellant, v. The BANK OF NEW YORK MELLON f/k/a the Bank of New York, as Trustee, ON BEHALF OF the HOLDERS OF the ALTERNATIVE LOAN TRUST 2005-62, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-62; Joy Freeman; Mortgage Electronic Registration Systems, Inc., as Nominee for Esecond Mortgage.com in DBA Dollar Realty Mortgage; Harbour Walk Homeowners’ Association, Inc.; The Inlets at Riverdale, Inc.; and Tenant, Appellees.
    Case No. 2D15-5053
    District Court of Appeal of Florida, Second District.
    June 14, 2017

      David W. Smith, Law Office of David W. Smith, Sarasota, for Appellant.
    Sarah T. Weitz, of Weitz & Schwartz, P.A., Fort Lauderdale, for Appellee, The Bank of New York Mellon.
    No appearance by remaining Appellees.
   BY ORDER OF

THE COURT:

Appellant’s motion for rehearing and certification filed March 9, 2017, is granted only to the extent that this court’s opinion dated February 22, 2017, is withdrawn and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

-WALLACE, Judge.

John Desylvester appeals a final judgment of mortgage foreclosure entered against him and Joy Freeman and in favor of The Bank of New York Mellon (the Bank) following a nonjury trial. Although we affirm the judgment, we write to address the issue of the application of the statute of limitations in a subsequent foreclosure action filed after the dismissal of an initial action for the foreclosure of the same note and mortgage.

I. THE FACTS AND THE PROCEDURAL BACKGROUND

On September 20, 2005, Mr. Desylvester and Ms. Freeman executed an adjustable rate note in the amount of $1,500,000 in favor of “Eseeond Mortgage.com in [sic] DBA Dollar Realty Mtg.” The terms of the note required the borrowers to make monthly payments of principal and interest, beginning on November 1, 2005, and ending on October 1,2085.

On the same day, Mr. Desylvester and Ms. Freeman executed a standard residential mortgage securing the note with real property located in Sarasota County. The mortgage named “Eseeond Mortgage.com in [sic] DBA Dollar Realty Mtg.” as the lender and Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee as nominee for the lender and the lender’s successors and assigns. Both the note and the mortgage contained optional acceleration clauses authorizing acceleration of the principal and interest due on the note to maturity in the event of a default by the borrowers. In addition, the standard form residential mortgage included a reinstatement provision in paragraph 19 titled, “Borrower’s Right to Reinstate After Acceleration.” The Bank filed the original note with the trial court in the underlying litigation. An. allonge was attached to the note. The allonge bore two indorsements. The first indorsement was from the original lender to Countrywide Home Loans, Inc., dba America’s Wholesale Lender. The second indorsement from Countrywide was in blank.

The Bank filed two foreclosure actions on the note and mortgage. .It filed the first foreclosure action against Mr. Desylvester, Ms. Freeman, and other parties on November 15, 2012. The Bank attached a copy of the note, including the- allonge bearing both, of the indorsements, and a copy of the mortgage to its complaint. The Bank alleged that the mortgage had been assigned to it under an assignment from MERS dated May 10, 2011, and attached a copy of the assignment. With regard to the default, the Bank alleged that the borrowers had defaulted on their regular monthly paymeiit due on October 1, 200§; “and all subsequent payments.” The Bank also accelerated the note by declaring the full amount, due under the note to be due and payable. The first action was dismissed for reasons that are unexplained in our record.

Subsequently, on December 9, 2014, the Bank filed a second foreclosure action against the borrowers and others on the same note and mortgage. As it did in the first action, the Bank alleged in its complaint that the borrowers had defaulted on the note and mortgage by failing to make the payment due on October 1, 2008, “and all subsequent payments due thereafter.” Once again, the Bank accelerated the unpaid principal and interest to maturity by declaring the full amount to be due and payable.

Mr. Desylvester filed an answer and affirmative defenses to the complaint in the second action for foreclosure. He generally denied the material allegations of the complaint, including the allegation that he had defaulted on the payment due on October ,2008, and “all subsequent payments due thereafter.” In his second affirmative defense, Mr, Desylvester alleged that the statute of limitations had run with regard to the alleged default in payment on October 1, 2008, because any such default had occurred more than five years before the filing , of the second foreclosure complaint. Mr. Desylvester asserted that “[a]ny suit to foreclose based upon an October 1, 2008 default would have had to been filed prior to October 1, 2013, or otherwise be barred forever.” Mr. Desylvester concluded that because the second action was filed on December 9, 2014, it was barred by the statute of limitations. In a third affirmative defense, Mr. Desylvester alleged that the Bank did not have standing to foreclose at the inception of the second foreclosure action.

The trial court held a bench trial for the second foreclosure action in September 2015. Jill Dietrich testified on behalf of the Bank. Ms. Dietrich was an employee of Select Portfolio Servicing, Inc. (SPS), the servicer for the loan. She was qualified to testify about SPS’s business records for the loan. Ms. Dietrich identified the original note, the mortgage, and the assignment of mortgage, which the trial court received in evidence. Ms. Dietrich also identified a document reflecting the payment history on the note, which showed that the last payment received had been applied to the September 1, 2008, installment; no payments had been received on the note thereafter.' The trial court also received this document in evidence.

On October 26, 2015, the trial court entered the final judgment of foreclosure. Mr. Desylvester appealed the final judgment. Ms. Freeman has not joined in the appeal or otherwise appeared in this case.

II. MR. DESYLVESTER’S APPELLATE ARGUMENTS

On appeal, Mr. Desylvester raises three points. First, he argues that the Bank failed to present evidence sufficient to establish the alleged default in payment. Second, Mr. Desylvester contends that the Bank failed to establish its standing to foreclose at the inception of the second action. Third, he argues that the Bank’s action is barred by the applicable statute of limitations.

Competent substantial evidence in the record demonstrates that the Bank established the alleged default in payment and its standing to foreclose at the inception of the action. Mr. Desylvester’s arguments on these points are without merit and do not warrant further discussion. We turn now to a discussion of Mr. Desylvester’s argument concerning the statute of limitations.

III. DISCUSSION

We apply a de novo standard of review to the issue of the application of the statute of limitations to the Bank’s action for foreclosure. Nationstar Mortg., LLC v. Sunderman, 201 So.3d 139, 140 (Fla. 3d DCA 2015); see also Hamilton v. Tanner, 962 So.2d 997, 1000 (Fla. 2d DCA 2007) (“A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.”).

Mr. Desylvester argues that the trial court erred in entering the final judgment of foreclosure in favor of the Bank because the Bank’s action was barred by the five-year statute of limitations applicable to actions on a written instrument. See § 95.11(2)(c), Fla. Stat. (2008). In Mr. Desylvester’s view, the Bank’s action was barred because it was filed more than five years after the date of default, i.e., October 1, 2008. The Bank filed the underlying second foreclosure action on December 9, 2014. Mr. Desylvester claims that in order for the action to be timely, the Bank had to file its complaint before October 1, 2013. Mr. Desylvester .concludes that “a complaint is barred by the statute of limitations in a subsequent foreclosure if , the alleged date1 of default is older than five years.”

The recent decision of the Florida Supreme Court in Bartram v. U.S. Bank National Ass’n, 211 So.3d 1009 (Fla. 2016), resolves the question of the application of the statute of limitations in the residential mortgage foreclosure context at issue here in favor of the Bank. With regard to the application of the statute of limitations in a subsequent foreclosure action after an initial foreclosure action that sought acceleration was dismissed, the Bartram’. court said:

Therefore, with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.
Consistent with the reasoning of Singleton[ v. Greymar Associates, 882 So.2d 1004 (Fla. 2004) ], the statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a “separate and distinct” default. Rather, after the dismissal, the parties are simply placed back in the same contractual relationship as before, where the residential mortgage remained an installment loan, and the acceleration of the residential mortgage declared in the unsuccessful foreclosure action is revoked.

Bartram, 211 So.3d at 1019. This result follows regardless of whether the dismissal of the initial foreclosure action was entered with or without prejudice. Id. Accordingly, we conclude that the dismissal of the Bank’s earlier foreclosure action did not trigger the statute of limitations to bar the Bank’s subsequent foreclosure action based on separate defaults. See id.

We recognize that in the underlying action the Bank alleged that the borrowers defaulted on the note by failing to make the payment due on October 1, 2008, “and all subsequent payments due thereafter.” Granted, the October 1, 2008, date was the date alleged as the date of the initial default in the first foreclosure action, and this date was outside the period of the five-year statute of limitations. Nevertheless, the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations. See Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 198 So.3d 1140, 1142 (Fla. 2d DCA), review granted, No. SC16-1680 (Fla. Nov. 2, 2016). Thus, the facts of this case are distinguishable from the facts in Collazo v. HSBC Bank USA, N.A., 213 So.3d 1012 (Fla. 3d DCA 2016). In Collazo, unlike in this case, the plaintiff insisted on trying the case on the basis of a date of default that was outside the five-year statute of limitations period. Id. at 1012-13. Here, in addition to alleging the initial date of default as October 1, 2008, the Bank alleged that the borrowers were in a continuing state of default up to the time of the filing of the complaint.

IV. CONCLUSION

It follows from the foregoing analysis that the underlying action was not barred by the five-year statute of limitations. For this reason, and because Mr. Desylvester’s other points are without merit, we affirm the final judgment of foreclosure.

As this court did in Bollettieri Resort Villas, 198 So.3d at 1142-43, we certify conflict with the holding of the Fifth District in Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 959 (Fla. 5th DCA 2015), to the extent that our decision conflicts with the holding in Hicks.

Affirmed; conflict certified.

SLEET and SALARIO, JJ„ Concur.

      . The reinstatement provision of the standard form residential mortgage is quoted in Justice Lewis’s concurrence in Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009, 1023 n.8 (Fla. 2016) (Lewis, X, concurring in result Only).


text:
    Warren L. OLIVER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-86
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017
    Warren L. Oliver, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 1, 2017 resentencing in Case No. 97-CF-1882-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., SAWAYA and BERGER, JJ., concur.


text:
    Meegan KIDD n/k/a Meegan Hyatt Alphin, Petitioner, v. Jon KIDD, Respondent.
    Case No. 5D17-137
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017
    Richard J. Feinberg, of Law Office of Richard J. Feinberg, Indialantic, for Petitioner.
    Valerie Towery Weaver, of The Loris Law Group, Viera, for Respondent.
   PER CURIAM.

Meegan Alphin (“Petitioner”) petitions for a writ of certiorari to review a trial court order disqualifying her attorney, Richard Feinberg, from representing her during a family law proceeding involving her former husband, Jon Kidd (“Respondent”); The trial .court held a hearing on Respondent’s motion to disqualify Fein-berg and entered the order under review.

We grant Petitioner’s petition for writ of certiorari on the grounds that the trial court departed from the essential requirements of the law when it failed to apply Rule of Professional Conduct 4-1.18 to this determination. Failure to apply this rule properly has caused irreparable injury that cannot be remedied on appeal. Rule 4-1.18(c) provides that, even if no attorney-client relationship ensues following a consultation, an attorney “may not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be used to the disadvantage of that person in the matter.” The trial court found credible Feinberg’s testimony that no confidential information was divulged during the prospective client consultation that could harm- or disadvantage Respondent. Accordingly, pursuant to Rule 4-1.18, Feinberg is not prohibited from representing Petitioner in these proceedings.

The trial court relied upon State Farm Mutual Automobile Insurance Co. v. K.A.W., 575 So.2d 630 (Fla. 1991), and Metcalf v. Metcalf, 785 So.2d 747 (Fla. 5th DCA 2001), in rendering the order under review. However, these cases are clearly distinguishable from the instant case because it was uncontested in both that confidential information was exchanged.

We grant the petition for writ of certio-rari and quash the trial court’s order disqualifying Feinberg from representing Petitioner.

WRIT GRANTED,- ORDER QUASHED.

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


text:
    STATE of Florida, Appellant/Cross-Appellee, v. James Robert WARD, Appellee/Cross-Appellant.
    Case No. 5D16-694
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    Sean M. Ellsworth, of Ellsworth Law Firm, P.A., Miami Beach, and Eric O. Bra-vin, pro hac vice, New York University ' School of Law, New York, New York, for Appellee/ Cross-Appellant.
   PER CURIAM.

The trial court’s order granting Appel-lee/Cross-Appellant’s . motion for postcon-viction relief is supported by the record and, accordingly, we affirm. As a result, the issues raised .on- cross-appeal are rendered moot.

APPEAL AFFIRMED; CROSS-APPEAL DISMISSED AS MOOT. ‘

ORFINGER, EVANDER and LAMBERT, JJ., concur.


author: PER CURIAM. -

text:
    MARKET TAMPA INVESTMENTS, LLC, as Trustee, Under the 10528 Coral Key Land Trust Dated the 21st of August, 2013, Appellant, v. CITIBANK, N.A., as Trustee FOR GSAA HOME EQUITY TRUST 2007-10, Asset-Backed Certificates, Series 2007-10; Acquisitions Trust, LLC, Successor Trustee of the 10528 Coral Key Land Trust Dated the 21st Day of August, 2013; JS Property Holdings, LLC, Alternative Trustee of the 10528 Coral Key Land Trust Dated the 21st Day of August, 2013; Lindsey T. Shirey; Darren Sorenson; Heritage Isles Gold & Country Club Community Association, Inc.; and Unknown Tenant #1 n/k/a Julio Lebron, Appellees.
    Case No. 2D16-2215
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017.
    Heather A. DeGrave of Walters Levine Klingensmith & Thomison, P.A., Tampa, (withdrew after briefing); Ivan D. Ivanov of The Ivanov Law Firm, P.A., Tampa, (substituted as counsel of record), for Appellant.
    Beth A. Norrow of Greenberg Traurig, P.A., Orlando, for Appellee Citibank, N.A., as Trustee for GSAA Home Equity Trust 2007-10, Asset-Backed Certificates, Series 2007-10. No appearance for remaining Ap-pellees.
   PER CURIAM. -

Affirmed.

VILLANTI, C. J., and BLACK and SALARIO, JJ., Concur.


text:
    Karen Annie MARISCAL, a/k/a Karen A. Mariscal, a/k/a Karen Anne Mariscal, Appellant, v. WELLS FARGO BANK, N.A., as Trustee, ON BEHALF OF the HOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC. BEAR STERNS MORTGAGE FUNDING TRUST 2007-AR2, Mortgage Pass Through Certificates Series 2007-AR2, Appellee.
    Case No. 2D16-3384
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017
    Leslie ,M. Conklin, Clearwater, for Appellant.
    Nathan L. Wood and Sarah T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

Affirmed.

VILLANTI, C.J., and KELLY and BADALAMENTI, JJ., Concur.


text:
    Armando NARGI, Jr., Appellant, v. Robin Hope SCHWARTZ-NARGI, Appellee.
    Case No. 2D16-3870
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017
    Armando Nargi, Jr., pro se.
    Toni Latino of Borras & Latino, P.A., Fort Myers, for Appellee
   PER CURIAM.

Affirmed.

KHOUZAM, CRENSHAW, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Dyana MARTIN, Appellant, v. Marshall LEE, Appellee.
    CASE NO. 1D16-2466
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017.
    Emilian “Ian” Bucataru, Bucataru Law Firm, Tallahassee, for Appellant.
    Mark V. Murray, Law Office of Mark V. Murray, Tallahassee, for Appellee.
   PER CURIAM.

Dyana Martin, former wife, appeals the Final Judgment of Dissolution of Marriage. Martin raises three issues on appeal, two of which are affirmed without further comment. With regard to the third issue, Martin argues the trial court erred in granting Marshall Lee’s, former husband’s, ore terms request for a no-contact order.

At the conclusion of the final hearing, Lee requested a no-contact order. No testimony was taken on the matter; however, Lee’s counsel alleged Martin had been contacting Lee’s mother and had a history of being volatile. Without any additional evidence upon which to base its determination, the trial court granted Lee’s request. It is well settled that courts are not authorized to grant relief not requested in the pleadings. Causey v. Causey, 36 So.3d 893, 893 (Fla. 1st DCA 2010) (citing Cardinal Inv. Grp. Inc. v. Giles, 813 So.2d 262 (Fla. 4th DCA 2002)). It is clear, based on the record, that Lee did not request the no-contact order in the pleadings. Thus, that portion of the Final Judgment granting the same is reversed. Further, there is no evidence in the record to support the trial court’s order granting Lee’s request for a no-contact order, as this was simply based on allegations set forth by Lee’s counsel. See McMath v. Biernacki, 776 So.2d 1039 (Fla. 1st DCA 2001).

We, therefore, reverse the Final Judgment of Dissolution of Marriage as to the granting of the former husband’s ore terms request for a no-contact order. We affirm the Final Judgment in all other respects without further comment.

AFFIRMED.

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.


text:
    Marcus Ferrell TOLER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1304
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017.
    Marcus Ferrell Toler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the February 2, 2017, Order Denying Motion for Post-Conviction Relief in Escambia County Circuit Court case number 2014-CF-960. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P, 9.141(c)(6)(D).

WINOKUR, JAY, and M.K. THOMAS, JJ., CONCUR.


text:
    Freddie Roosevelt TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1631
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017.

      Freddie Roosevelt Taylor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of. mandamus is denied as premature.

WINOKUR, JAY, and M.K. THOMAS, JJ./ CONCUR.


text:
    Mary E. NIELSON, Appellant, v. Sona CHAMBERS, Appellee.
    CASE NO. 1D17-0191
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017
    William J. Dunaway, William D. Stokes and Robert J, Powell of Clai-k Partington, Pensacola, for Appellant.
    Michael S. Burke and Gregory J. Philo of Burke Blue Hutchison Walters & Smith, P.A., Panama City, for Appellee.
   PER CURIAM.

Upon consideration of appellee’s concession of error, we reverse the order on appeal and remand for further proceedings.

WETHERELL, RAY, and MAKAR, JJ., CONCUR.


text:
    Dennis HILL, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0067
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017.
    Henry Mark Sims, Public Defender,- Jan L. Miron and Laura McCarthy, Assistant Public Defenders, Panama City, for Petitioner. ■
    Pamela Jo Bondi, Attorney General, and David Llanes, Senior Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the November 29, 2016⅛ judgment and sentence in Bay County Circuit Court ease number 15005416CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided' to the clerk' of the circuit court for treatment as the notice of appeal. ' Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WINOKUR, JAY, and M.K. THOMAS, JJ., CONCUR.


text:
    Shah SHALTOUKI and Patricia Haworth, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, Lawrence D. Haworth, Windermere Club Homeowners Association, Inc., Butler Bay Association, Inc. and 1 Buyers Group, LLC, Appellees.
    Case No. 5D16-3150
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 20, 2017
    Shah Shaltouki and Patricia Haworth, Windermere, pro se.
    Allison Morat and Ronnie J. Bitman, of Pearson Bitman LLP, Maitland, for Appel-lee, U.S. Bank National Association.
    No appearance for other Appellees.
   PER CURIAM.

AFFIRMED. See Fla. R. App. R. 9.315(a).

BERGER, LAMBERT, and EDWARDS, J.J., concur.


author: VILLANTI, Chief Judge.

text:
    Steven A. KOCH, Appellant, v. Charlene P. KOCH, n/k/a Charlene P. McKay, Appellee.
    Case No. 2D16-2339
    District Court of Appeal of Florida, Second District.
    Opinion filed June 21, 2017
    Christin C. Brennan of Meros, Smith, Lazzara, Brennan, Brennan & Olney, P.A., St. Petersburg, for Appellant.
    Jane H. Grossman, St. Petersburg, for Appellee. ■
   VILLANTI, Chief Judge.

Steven A. Koch appeals an order denying his motion to vacate and set aside rulings premised upon Mr. Koch’s allegations of wrongful conduct on the part of his former wife’s attorney. Mr. Koch also appeals an order of enforcement entered in favor of his former .wife in which he was ordered to continue paying his former wife’s health insurance premiums.

To the extent that Mr. . Koch seeks review of the order denying his motion to vacate and set aside rulings, we affirm without further discussion. To the extent that Mr. Koch seeks review of the order of-enforcement, we. must dismiss the appeal as premature because the order is nonfinal and nonappealable. See Fla. R. App. P. 9.110(l)

Affirmed in part; dismissed in part.

KELLY and BADALAMENTI, JJ., Concur.


author: Per Curiam.

text:
    Orlando ORTEGA, Appellant, v. Karla GUERRERO f/k/a Karla Ortega, Appellee.
    No. 4D16-2595
    District Court of Appeal of Florida, Fourth District.
    June 21, 2017

      Cash A. Eaton and Catherine S. Eaton of The Eaton Family Law Firm, P.A., West Palm Beach, for appellant.
    Karla Guerrero f/k/a Karla Ortega, West Palm Beach, pro se.
   Per Curiam.

Affirmed. See Newman v. Newman, Nos. 4D14-4842, 4D15-792 and 4D15-1324, 221 So.3d 642, 2017 WL 2350140 (Fla. 4th DCA May 31, 2017).

Gross, Gerber and Kuntz, JJ., concur.


author:
THE .COURT:
      BLACK, Judge.

text:
    RING POWER CORPORATION; Diesel Construction Company; and Mark David Quandt, Appellants, v. Gerardo CONDADO-PEREZ and Nancy Rodriguez-Ventura, Appellees.
    Case No. 2D16-353
    2D16-397
    District Court of Appeal of Florida, Second District.
    June 21, 2017

      Carrie Ann Wozniak of Akerman LLP, Orlando; and Katherine E. Giddings of Akerman LLP, Tallahassee, for Appellants.
    Barbara Green of Barbara Green, P.A., Coral Gables; and Betsey T. Herd of Mor-genstem & Herd, P.A., Tampa, for Appel-lees.
   BY ORDER OF

THE .COURT:

Appellants’ unopposed motion for rehearing and/or clarification of opinion is granted. Appellees’ motion for clarification is granted. The prior opinion dated April 7, 2017, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

BLACK, Judge.

In these consolidated appeals, Ring Power Corporation, Diesel Construction Company, ' and Mark David Quandt (collectively, Ring Power) challenge the judgments entered in favor of Gerardo Con-dádo-Perez (Mr. Condado) and Nancy Rodriguez-Ventura (Ms. Rodriguez). Ring Power contends that two evidentiary rulings of the trial court were erroneous.and contributed.to the verdict in favor of Mr. Condado and Ms. Rodriguez. We agree with Ring Power, reverse the final judgments, and remand for ,a new trial. Because we reverse the final judgments, we also reverse.,the costs judgments predicated on those judgments.

The underlying negligence action arose out of a motor vehicle accident that occurred on the afternoon of December 8, 2012. While in the course and scope of his employment with Ring Power, Mr. Quandt was driving a large service truck owned by Diesel Construction northbound on 1-75 in Pasco County. Mr. Quandt’s truck collided with a Ford Expedition driven by Mr. Condado and occupied by Ms. Rodriguez, which was also travelling northbound on I-75. Mr. Quandt’s truck then collided with a third vehicle. It was undisputed that there was a. mattress in the northbound lanes of the interstate, causing cars to stop or swerve unexpectedly. Further, the parties agreed that there were two northbound lanes of 1-75, a median between the north and southbound lanes, and a narrow shoulder adjacent to that median. The agreed-upon facts end there; the parties gave opposing versions of what occurred.

Mr. Condado alleged that he did nothing to contribute to the accident. He claimed that for two or moré miles prior to the accident he had been travelling in the left lane. He stated that he saw traffic slowing ahead of him due to someone pulling a mattress out of the roadway and claimed he did not suddenly swerve from the right lane into the left lane in front of Mr. Quandt’s vehicle. Mr. Condado testified that he saw Mr. Quandt’s vehicle directly behind him; he alleged that Mr. Quandt was driving too fast and following too closely. When it appeared that. ..Mr. Quandt’s vehicle was going to rear-end Mr. Condado’s, Mr. Condado steered his vehicle left, into the narrow shoulder. He testified that because of the narrowness of the shoulder, he was unable to completely exit the left lane of the interstate. He further testified that upon-steering his vehicle into the left shoulder, the rear of his vehicle was forcefully struck by Mr. Quandt’s large service truck, causing Mr. Condado’s vehicle to roll over. As a result of the roll over, Mr. Condado and Ms.- Rodriguez suffered significant injuries.

Conversely, Mr. Quandt claimed that the accident was caused entirely by Mr. Con-dado suddenly and unexpectedly swerving from the right lane into the left lane and then into the left shoulder, directly into Mr. Quandt’s path of travel. Mr. Quandt testified that the mattress was less than 100 yards away when the traffic in front of him reacted by slowing and stopping. He testified that he was able to reduce his speed significantly and that he attempted to avoid the collision with Mr. Condado’s vehicle by moving left into the shoulder and median. But because Mr. Condado swerved further into the median in front of him, the accident was unavoidable.

Each party called an expert witness to advance his respective theory of the case. Mr. Condado called Dr. Elliott Stern,- a professional engineer, who concluded that Mr. Quandt caused the accident by driving too fast for the conditions and the surrounding slowing vehicles. Mr. Quandt called Arnold Wheat, an accident investigator certified in traffic reconstruction, who concluded that Mr. Condado’s vehicle dramatically and significantly swerved to the left—into and across Mr. Quandt’s path of travel—causing the accident.

The critical evidentiary rulings that Ring Power submits necessitate a new trial both involve an alleged admission by Mr. Condado made to Kyle Patón, a Pasco County Fire Rescue paramedic and emergency medical technician, who arrived on the accident scene shortly after 911 was called. In addition to providing medical assistance to Ms. Rodriguez, Mr. Patón spoke with Mr. Condado about the accident. Based on that conversation, Mr. Pa-ton prepared a mandatory patient care report (EMS Report).- The EMS Report provided that “Husband states he swerved to avoid a mattress in the road and lost control of the car and went off the road” (Mr. Condado’s statement). Mr. Patón prepared the EMS Report on the day of the áccident.

Prior to trial, Mr. Condado filed a motion in limine to prevent the above-quoted statement from being introduced as evidence. Although he stipulated to the. authenticity of the EMS Report, he argued that the statement within the EMS Report was not trustworthy because it referred to Mr. Condado as Ms. Rodriguez’s “husband,” but the two were not married. Mr. Condado also argued that the statement was inadmissible because it lacked a proper foundation; he claimed that he is not 'a proficient English speaker and denied making the statement at all. Ring Power filed a response to the motion in limine noting that Mr. Condado testified in deposition that he had been married to Ms. Rodriguez for ten years.. Ring Power further-argued that Mr. Condado’s denial of the statement was a matter of weight and credibility for the jury rather than admissibility. Ring Power contended that the statement was admissible as.a spontaneous statement, excited utterance, and admission by a party opponent pursuant to sections 90.803(1), (2), and (18), Florida Statutes (2015). Ring Power also noted that -although the statement-was hearsay within hearsay, it was admissible because both the EMS Report and Mr. Condado’s statement within the report were subject to an exception under section 90.803.

Finding the statement inadmissible through the EMS Report, the trial court granted the motion in limine. At trial, the court denied Ring Power’s request to reconsider the ruling on the motion in limine and its request to consider the EMS Report in its entirety as a recorded recollection pursuant to section 90.803(5). The court also excluded from evidence Mr. Pa-ton’s deposition testimony, which included a discussion of Mr. Condado’s statement and confirmed that Mr. Patón included in his report what he had been told by Mr. Condado at the scene.

In opening statements, Mr. Condado argued that although the defense would suggest that Mr. Condado swerved and caused the accident, the evidence would prove otherwise. At that time, Ring Power renewed its request to use Mr,. Condado’s statement in the. EMS Report based on Mr. Condado’s opening statement. The court denied the request.

During trial, Mr. Condado testified that he was very nervous after the accident and thought he was going to die when his vehicle was rolling over. Ring Power again advanced its argument that Mr. Condado’s statement in the report was a spontaneous statement or excited utterance and should be admitted. It marked Mr, Paton’s deposition transcript and video as well as the unredacted EMS Report as exhibits and requested that the court admit them and publish them to the jury. The court declined to reconsider its prior ruling and considered the exhibits as proffers. At that time, Mr. Condado proffered Mr. Paton’s deposition cross-examination testimony. The redacted EMS Report was introduced not by Ring Power but by Mr. Condado; it Was admitted into evidence without objection. Subsequently, the trial court again declined Ring Power’s request to reconsider its prior ruling on the admission of Mr. Condado’s statement.

At the close of the evidence, the case was submitted to the jury, which was asked to answer three questions:

1. Was there negligence on the part of Mark David Quandt which was a legal cause of injury to [Mr. Condado and Ms. Rodriguez]?
2. Was there negligence on the part of Gerardo Condado[ ] which was a contributing legal cause of injury to [Mr. Con-dado and Ms. Rodriguez]?
3. Was there negligence on the part of an unknown person responsible for the presence of a mattress on the roadway which was a contributing legal cause of injury to [Mr. Condado and Ms. Rodriguez]?

The jury answered yes to all three questions, and it assigned 65% liability to Mr. Quandt, 33% liability to Mr. Condado, and 2% liability to an unknown person responsible for the mattress in the roadway. The total damages awarded to Ms. Rodriguez were $330,557,65 for past and future medical expenses and $75,000 for pain and suffering; the total damages awarded to Mr. Condado were $193,486,35 for past and future medical expenses and $50,000 for pain and suffering.

Ring Power moved for a new' trial, reiterating its prior arguments on the admissibility of Mr. Condado’s statement and Mr. Paton’s deposition. That motion was denied.

On appeal, Ring Power contends that the trial court abused its discretion in making the evidentiary determinations that Mr. Condado’s statement in the EMS Report and Mr. Paton’s deposition were inadmissible and that such errors cannot be considered harmless. We agree.

The trial court erred in granting Mr. Condado’s motion in limine and in denying Ring Power’s repeated requests to introduce Mr. Condado’s statement into evidence. That the EMS Report itself was admissible is not contested here; it is only the admissibility of Mr. Condado’s statement within that report that is at issue. Notably, the EMS Report was introduced into evidence by Mr. Condado; there was no objection to its admission. Ring Power sought to introduce Mr. Condado’s statement within the EMS Report as substantive evidence, contending that the statement met a number of hearsay exceptions. Because we conclude- that Mr. Condado’s statement was an admission, and therefore admissible pursuant to . section 90.803(18)(a), we decline to address whether it was also a spontaneous statement or excited utterance or could otherwise have been admitted as a recorded recollection.

An admission is “[a] statement that is offered -against a party and is ... [t]he party’s own statement in either an individual or a representative capacity.” § 90.803(18)(a). That is, the statement need only be (1) a party’s and (2) offered against that party to qualify as an admission. Of course, the admission must also be relevant—“tending to prove or disprove a material fact.” § 90.401. Statements of a party offered by an opponent regarding causation in negligence actions are generally considered admissions. See McKay v. Perry, 286 So.2d 262, 263 (Fla. 2d DCA 1973) (stating that party’s statement to neighbor regarding ownership of a dog in a dog-bite case would be admissible as an admission); Otis Elevator Co. v. Youngerman, 636 So.2d 166, 167 n.1 (Fla. 4th DCA 1994) (noting that plaintiffs statement to nurse regarding fall was an admission); Wilkinson v. Grover, 181 So.2d 591, 593-94 (Fla. 3d DCA 1965) (concluding that plaintiffs statements to physician as to how fast plaintiff was driving at time of accident were admissions). However, the statements of a party need not speak directly to liability to be admissions. See, e.g., Jones v. Alayon, 162 So.3d 360, 365 (Fla. 4th DCA 2015) (concluding that statement by party regarding how money was spent was an admission). “It is well settled that an admission against interest may be introduced into evidence as substantive evidence of the truth of the matter stated.” Seaboard Coast Line R.R. Co. v. Nieuwendaal, 253 So.2d 451, 452 (Fla. 2d DCA 1971); accord McKay, 286 So.2d at 263. “This is so even though the person making the admission against interest subsequently denies making such admission.” Seaboard Coast Line, 253 So.2d at 452; see also Charles W. Ehrhardt, Florida Evidence § 803.18 (2014 ed.) (“If a statement is offered as substantive evidence under [section 90.803(18) ] it is not necessary to lay a foundation by asking the individual who made the statement whether he or she did so.”)..

Here, Ring Power sought to introduce Mr. Condado’s statement—attributed to Mr. Condado and included in a properly admitted business medical record—as evidence against. Mr. Condado. It clearly meets the statutory requirements of an admission.

Mr. Condado maintains that because he challenged the trustworthiness of the EMS Report and his statement within it, his statement was properly excluded. Provided that medical records, including EMS records, otherwise meet the requirements of a business record under section 90.803(6)(a), their trustworthiness is presumed. Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 842-43 (Fla. 1st DCA 2000) (citing Love v. Garcia, 634 So.2d 158, 160 (Fla. 1994)). However, the party opposing the introduction of the medical records may rebut that presumption. Love, 634 So.2d at 160 (“[T]he burden is on the party opposing the introduction to prove the untrustworthiness of the records.”).

Here, the EMS Report was introduced into evidence by Mr. Condado; there was no opposition to its admission. Ring Power points out the inconsistency in Mr. Conda-do’s position on his statement within the EMS Report based on his introduction of the report: by introducing the report Mr. Condado conceded the trustworthiness of the document and yet maintains that a singular- statement within it is not trustworthy.

Mr. Condado does not acknowledge that inconsistency or the fact that the EMS Report was appropriately admitted into evidence. Rather, Mr. Condado maintains that his statement is untrustworthy because it refers to Mr. Condado as Ms. Rodriguez’s "husband” when in fact Mr. Condado and Ms. Rodriguez are not married and because Mr. Condado is not proficient in English. He also argues that his statement is untrustworthy because the report does not mention that his vehicle rolled over in the accident. As to the former argument, in his deposition and at trial Mr. Condado admitted that he sometimes referred to Ms. Rodriguez as his wife and that he may have done so on the date of the accident.

As to the latter argument, Mr. Condado fails to recognize that his statement is admissible under a hearsay exception separate and distinct from the business record exception; and the admission exception has no trustworthiness component. While hearsay evidence is generally excluded as "inherently untrustworthy because the party against whom such evidence is offered has had no opportunity to test its veracity by cross-examining the statement at the time the statement was made,” admissions of a party opponent are an exception to the rule because “a party can hardly complain that he had no opportunity to cross-examine himself at the time the admissions were made.” Metropolitan Dade County v. Yearby, 580 So.2d 186, 188 (Fla. 3d DCA 1991). That is, there is no inherent untrustworthiness in the admission.

Although Mr. Condado’s statement was not admissible as a statement for purposes of medical diagnosis or treatment or as part of the business records exception, see Nat’l Union Fire, 754 So.2d at 843, it was otherwise admissible as an admission, see State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 1007-08 (Fla. 4th DCA 2001) (“Ingalls’s statements to various physicians were admissible as admissions of a party under section 90,803(18)(a). It was not necessary to also qualify the statements under section 90.803(4), as statements for the purpose of medical diagnosis or treatment.”). See also Charles W. Ehrhardt, Florida Evidence § 803.18 (2014 ed.) (“The evidence [meeting the requirements of section 90.803(18) as an admission] is' admissible under the exception, and the party who made the out-of-court statement may offer evidence to dispute its truthfulness.”). Moreover, any objection Mr. Condado had to the trustworthiness of the document as a whole—including those based on facts absent from the report— was waived by his introduction of the report. Cf. Ohler v. United States, 529 U.S. 753, 755, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000) (“Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.”); Dorfman v. Schwabl, 777 So.2d 427, 429-30 (Fla. 5th DCA 2000) (“We cannot find the court erred, when Dorfman raised the issue about which he now complains.”).

It is apparent that the trial court’s evidentiary rulings on the admissibility of Mr. Condado’s statement were abuses of discretion. However, “[i]n order for an appealing party to be successful in a challenge to a judgment based on ‘the improper admission or rejection of evidence,’ the appellate court must conclude ‘after an examination of the entire case ... that the error[s] complained of ha[ve] resulted in a miscarriage of justice.’” Fla. Inst. for Neurologic Rehab., Inc. v. Marshall, 943 So.2d 976, 979 (Fla. 2d DCA 2006) (quoting § 59,041, Fla. Stat. (2006)). The court’s determination of - whether there has been a miscarriage of justice is based on a harmless error analysis. Special v. W. Boca Med. Ctr., 160 So.3d 1261, 1256-57 (Fla. 2014). “To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to-the verdict.” Id. at 1256. Mr. Condado has not established that the exclusion of his statement did not contribute to the verdict. Mr. Condado’s statement was admissible, highly relevant, and not unfairly prejudicial. Cf. Opsincs v. State, 185 So.3d 654, 658-59 (Fla. 4th DCA 2016) (concluding that defendant’s statement after accident had little probative value and was highly prejudicial); Kutner v. Dep’t of Highway Safety & Motor Vehicles, 568 So.2d 973, 974 (Fla. 3d DCA 1990) (concluding that exclusion of evidence was proper where its probative value was substantially outweighed by the danger of unfair prejudice given other evidence presented).

The exclusion of Mr. Condado’s statement was not harmless. There were two distinct theories advanced about the cause of the accident. Mr. Quandt’s defense was that Mr. Condado caused the accident by suddenly swerving. Mr. Conda-do’s statement in the EMS Report expressly corroborated the defense and Mr. Quandt’s theory of liability. See Phillips v. Ficarra, 618 So.2d 312, 314 (Fla. 4th DCA 1993) (concluding that error in excluding medical records was not harmless where records contradicted defendant’s theory of the case). Whether Mr. Condado swerved into Mr. Quandt’s path or Mr. Quandt was driving too fast and too closely were issues for the jury to decide after weighing the evidence, including Mr. Condado’s admission. See Seaboard Coast, Line, 253 So.2d at 452; Wilkinson, 181 So.2d at 594. Accordingly, Ring Power is entitled to a new trial as to liability.

Although the error in excluding Mr. Condado’s statement necessitates a new trial, we briefly comment on the error’ in excluding Mr. Paton’s deposition. The réc-ord establishes that Ring Power attempted to introduce and publish Mr. Paton’s deposition to the jury; however, it is not clearly established in the record that the trial court ruled on Ring Power’s request independent from its fourth request that the unredacted EMS Report be introduced into evidence. We note that Mr. Patón was unavailable at the time of trial and that Florida Rule of Civil Procedure 1.330(a)(1) permits the use of a deposition “for any purpose permitted by the Florida Evidence Code.”

The final judgments are reversed. The case is remanded for a new trial in accordance with this opinion.

Reversed and remanded.

KELLY and CRENSHAW, JJ., Concur.

      . The trial court entered ‘two partial final judgments as to damages—one in favor of Mr. Condado and one in favor of Ms. Rodriguez— and reserved jurisdiction to award fees and costs. Ring Power appealed those judgments. The trial court subsequently entered two costs judgments which were also appealed. This court consolidated the appeals for all purposes.

      . Initially, the trial court ruled that Mr. Con-dado’s statement could be admitted through the testimony of Mr. Patón but that it could not be admitted through the EMS Report. - This appears to be because the trial court believed the EMS Report itself was inadmissible hearsay.

      , Ring Power contends that Mr. Condado stipulated to the admission of the EMS Report as a business record under section 90.803(6) by agreeing that a records custodian was unnecessary. See Kelly v. State Farm Mut. Auto. Ins., 720 So.2d 1145, 1146 (Fla. 5th DCA 1998); Phillips v. Ficarra, 618 So.2d 312, 313 cia. 4th DCA 1993). Mr. Condado disagrees. However, we need not consider any stipulation because the admission of the EMS Report is not at issue on appeal; moreover, Mr. Condado himself introduced the EMS Report into evidence at trial.

      . See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 843-44 (Fla. 1st DCA 2000); Visconti v. Hollywood Rental Serv., 580 So.2d 197, 198 (Fla. 4th DCA 1991) (Garrett, J., concurring).


text:
    Jason CUSTARD, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1238
    District Court of Appeal of Florida, First District.
    Opinion filed June 23, 2017
    Deana K. Marshall of the Law Office of Deana K. Marshall, P.A., Riverview, for Petitioner.

      Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the February 8,2017, order denying defendant’s motion for postconviction relief in Duval County Circuit Court case numbers 16-2009-CF-001415-AXXX-MA, 16-2009-CF-001607-AXXX-MA, and 16-2009-CF-004765-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROBERTS, C.J., LEWIS and BILBREY, JJ., CONCUR.


text:
    Dennis B. STITZEL and Patricia O. Stitzel, Petitioners, v. CHAM-CAP, INC., Respondent.
    Case No. 5D17-1674
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017
    Carla T. Reece, Melbourne, for Petitioners.
    No Appearance for Respondent.
   PER CURIAM.

Dennis and Patricia Stitzel seek a writ of prohibition challenging the denial of their motion to disqualify the trial judge. The Stitzels contend that the trial judge erred by denying their legally sufficient motion. We agree.

Our opinion in Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213 (Fla. 5th DCA 2001), controls the disposition of this case. In Shuler, we stated:

A motion to disqualify is legally sufficient if the facts alleged, ássumed to be true, would cause a reasonable person to have a well-founded fear that he or she will not receive a fair trial from the assigned judge. State v. Shaw, 643 So.2d 1163, 1164 (Fla. 4th DCA 1994). The fear of judicial bias must be objectively reasonable. Id. The subjective fear of a party seeking the disqualification of a judge is not sufficient. Kowalski v. Boyles, 557 So.2d 885 (Fla. 5th DCA 1990). Rather, the facts and reasons given for the disqualification of a judge must tend to show personal bias or prejudice. Levine v. State, 650 So.2d 666 (Fla. 4th DCA 1995).

791 So.2d at 1215. Applying this standard, the allegations made in the Stitzels’ motion to disqualify the trial judge, are legally sufficient.

PROHIBITION GRANTED.

SAWAYA, ORFINGER and EISNAUGLE, JJ., concur.


text:
    Kenneth BACON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3462
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017

      Kenneth Bacon, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kathryn Lane, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We previously affirmed the summary denial of the Appellant’s motion to correct illegal sentence, filed pursuant to Florida Rules of Criminal Procedure 3.800(a).

Appellant has made numerous filings in this Court relating to his convictions in case 1999-12350-CFA, including 4 prior post-conviction appeals. He has failed to obtain relief in any of the prior post-conviction appeals. Due to Appellant’s apparent abuse of the legal process by his repeated, frivolous pro se filings attacking his conviction and sentence, this Court issued an order directing him to show cause why he should not be prohibited from future pro se filings. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Appellant’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

Therefore, because Appellant’s repeated attacks on his judgment and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this Court concerning Duval County Court Case Number 1999-12350-CFA. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar.

AFFIRMED.

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.


text:
    Elizabeth HALVELAND, individually and as Personal Representative of the Estate of Michael Halveland, deceased, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, an Agency of the State of Florida, Isaac Andrews, both in his individual and official capacity as a Correctional Officer of Florida Department of Corrections, Carlton Spooner, both in his individual and official capacity as an Officer of Florida Department of Corrections, Jennifer Reeves, both in her individual and official capacity as an Officer of Florida Department of Corrections, Patrick Jason William, in his individual capacity, Appellees.
    CASE NO. 1D16-3226
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017
    Megan Cunningham, Ann E. Finnell, of Finnell, McGuinness, Nezami & Andux, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna LaPlante, Senior Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

After inmate Michael Halveland died, his estate via his mother brought a wrongful death action against the Department of Corrections. The estate challenges the trial court’s ruling, which dismissed the action as time-barred based on this Court’s decision in Green v. Cottrell, 172 So.3d 1009, 1011 (Fla. 1st DCA 2015), which held that the one-year statute of limitations for prisoners bringing suit under , section 95.11(5)(g) applied, as opposed to section 768.28(14)), Florida Statutes. Our decision was recently reversed in Green v. Cottrell, 204 So.3d 22 (Fla. 2016), the supreme court holding that the four-year statute of limitations in section 768.28(14) governs a prisoner action where the prisoner suffers “physical injury due to the negligent or wrongful act or omissions of the employees of a government entity.” Green v. Cottrell, 204 So.3d 22 (Fla. 2016). In light of Green, we vacate the order of dismissal and remand for further proceedings consistent with that decision. See Thornton v. Elliott, 288 So.2d 254, 256 (Fla. 1973); Winter Park Golf Estates v. City of Winter Park, 114 Fla. 350, 361, 153 So. 842 (Fla. 1934)). Because the order for sanctions against the estate was based in substantial part on the estate’s disagreement with this Court’s decision in Green, that order is vacated with instructions that the trial court review the motion in light of the supreme court’s recent decision as well.

VACATED AND REMANDED.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.


text:
    Alva W. FLEMING, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D12-5661
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

Upon consideration of the order of the Florida Supreme Court entered May 26, 2017, which quashed this court’s decision previously entered in this cause, the consecutive mandatory minimum sentence imposed for Count II (possession of a firearm by a convicted felon) is vacated. This offense was charged under the 10-20-Life statute, section 775.087(2),- Florida Statutes (2008), as was Count I (attempted murder in the first degree). With respect to Count I, the jury specifically found Ap-péllant possessed and discharged a firearm. As both offenses arose'from the same criminal episode and there was only one victim as to the firearm offenses, the mandatory minimum sentences in this case may be served consecutively or concurrently. See Walton v. State, 208 So.3d 60 (Fla. 2016); Williams v. State, 186 So.3d 989 (Fla. 2016); Tate v. State, 194 So.3d 564 (Fla. 1st DCA 2016); and Burns v. State, 212 So.3d 546 (Fla. 1st DCA 2017). We again certify conflict with Torre's-Rios v. State, 205 So.3d 883 (Fla. 5th DCA 2016).

As the trial court believed it was required to impose consecutive mandatory sentences, we REVERSE and REMAND the cause to the trial court for it to exercise its discretion in this' matter. The sentence imposed for the remaining offense of solicitation to commit a capital felony is unaffected by this decision.

WOLF, BILBREY, and JAY, JJ., CONCUR.


author: PER CURIAM

text:
    Shavonn Chanyell NORFLEET, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1632
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017
    Diana L. Johnson of Johnson and Lufra-no, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Charles Lee, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM

Appellant raises four issues in this direct criminal appeal. We affirm issues I, II, and IV without discussion, and we affirm issue III based on Norfleet v. State, Case No. 1D16-1971 (Fla. 1st DCA June 27, 2017), and Mitchell v. State, 207 So.3d 369 (Fla. 5th DCA 2016), because the trial court’s declaration in front of the jury that certain state witnesses were “experts” did not rise to the level of fundamental error in this case,

AFFIRMED.

WETHERELL, RAY, and MAKAR, JJ., CONCUR.

      . We reject Appellant's contention that defense counsel’s objection to the prosecutor's tender of Dr. Pena as an expert preserved the issue raised on appeal (at least as to Dr. Pena) because it is clear from the language and context of the objection and the subsequent voir dire of Dr. Pena that defense counsel was objecting to the doctor’s qualification to testify as an expert, not the fact that the trial court was being asked to declare the doctor to be an expert in front of the jury. See Harrell v. State, 894 So.2d 935, 940 (Fla. 2005) ("[Pjroper preservation entails three components. First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, '[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.' ”) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982)).


text:
    FLORIDA DEPARTMENT OF TRANSPORTATION and Jim Boxold, in His Official Capacity as Secretary of The Florida Department of Transportation, Petitioners, v. TROPICAL TRAILER LEASING LLC, et al., Respondents.
    CASE NO. 1D16-3392
    District Court of Appeal of Florida, First District.
    Opinion filed June 30, 2017
    Marc Peoples, Assistant General Counsel, Florida Department of Transportation, Tallahassee, for Petitioners.

      Diane G. DeWolf, Akerman LLP, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of certiorari is denied. H.J.M. v B.R.C., 603 So.2d 1331 (Fla. 1st DCA 1992); State, Dep’t of Highway Safety & Motor Vehicles v. Krejci Co., Inc., 570 So.2d 1322 (Fla. 2d DCA 1990).

LEWIS, BILBREY, and WINOKUR, JJ., CONCUR.


text:
    FLORIDA DEPARTMENT OF TRANSPORTATION and Jim Boxold, in His Official Capacity as Secretary of the Florida Department of Transportation, Petitioners, v. TROPICAL TRAILER LEASING LLC, et al. Respondents.
    CASE NO. 1D17-0232
    District Court of Appeal of Florida, First District.
    Opinion filed June 30, 2017.
    Marc Peoples, Assistant General Counsel, Florida Department of Transportation, Tallahassee, for Petitioners.
    Diane G. DeWolf, Akerman LLP, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of certiorari is denied. H.J.M, v. B.R.C., 603 So.2d 1331 (Fla. 1st DCA 1992); State, Dep’t of Highway Safety & Motor Vehicles v. Krejci Co., Inc., 570 So.2d 1322 (Fla. 2d DCA 1990).

LEWIS, BILBREY, and WINOKUR, JJ., CONCUR.