text:
    The BANK OF NEW YORK MELLON TRUST COMPANY, N.A. f/k/a The Bank of New York Trust Company, N.A., as trustee for Chaseflex Trust Series 2007-2, Appellant, v. Jill FITZGERALD, Appellee.
    No. 3D16-981
    District Court of Appeal of Florida, Third District.
    Opinion filed March 1, 2017.
    Rehearing Denied April 11, 2017

      Lapin & Leichtling, LLP, and Jeffrey S. Lapin, Alejandra Arroyave Lopez, and Jan Timothy Williams, for appellant.
    The Ticktin Law Group, PLLC, and Peter Ticktin, Kendrick Almaguer, and Geo-vanni Denis (Deerfield Beach), for appel-lee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

The Bank of New York Mellon Trust Company, N.A. f/k/a The Bank of New York Trust Company, N.A., as trustee for Chaseflex Trust Series 2007-2 (the “Bank”), appeals a final judgment awarding attorney’s fees to Jill Fitzgerald (“Fitzgerald”) pursuant to the reciprocity provision of section 57.105(7), Florida Statutes (2014). Because Fitzgerald successfully obtained a judgment below that the Bank lacked standing to enforce the subject mortgage and note against her, we find that no contract existed between the Bank and Fitzgerald that would allow Fitzgerald to invoke the reciprocity provisions of section 57.105(7). The trial court therefore erred in awarding Fitzgerald attorney’s fees pursuant to section 57.105(7), and we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

The borrower, Fitzgerald, entered into a mortgage with the lender, Northstar Mortgage Company (“Northstar”), on January 31, 2007. The mortgage contained the following attorney’s fees provision in favor of Northstar: “Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence.”

Concurrent with the mortgage, Fitzgerald signed a promissory note made payable to Northstar. The note bore a special in-dorsement from Northstar which stated: “PAY TO THE ORDER OF JPMORGAN CHASE BANK, N.A., ITS SUCCESSORS AND/OR ASSIGNS WITHOUT RECOURSE.”

On June 11, 2009, the Bank filed an action against Fitzgerald seeking to foreclose upon the note and mortgage. The Bank alleged that it “is now the holder of the Mortgage Note and Mortgage and/or is entitled to enforce the Mortgage Note and Mortgage.” The Bank’s complaint attached a copy of the note and mortgage.

On March 13, 2013, Fitzgerald filed her answer and affirmative defenses. In her affirmative defenses, Fitzgerald asserted that the Bank lacked standing because the note was specially indorsed to an entity other than the Bank, and that the Bank was not the lawful assignee of the note and mortgage. Fitzgerald also asserted that the Bank was not the holder of the note and mortgage, nor did it own or possess the note and mortgage. Fitzgerald demanded attorney’s fees “pursuant to terms of the agreement between the parties and Florida Statutes, Section 57.105.”

The case proceeded to a non-jury trial, and on January 15, 2014, the trial court entered final judgment in favor of Fitzgerald after finding that the Bank failed to establish standing. In reaching its ruling, the trial court found that “[t]here was no Assignment of Mortgage, or any other document evidencing a transfer to the [Bank] prior to the institution of the action attached to the Complaint.” The trial court further found that “[t]here was never any actual delivery of the note to the [Bank] and no evidence of intent to deliver the note to the [Bank] on the part of J.P. Morgan Chase Bank, the sole holder under the special indorsement.” The trial court therefore found that the note “was never negotiated in favor of the [Bank] and the [Bank] never became the holder of the note under Florida Statute § 673.3011(1), such that it could enforce the note.” Lastly, the trial court found that the Bank did not qualify as a non-holder in possession of the instrument who has the rights of a holder. The trial court reserved jurisdiction to award attorney’s fees and costs.

On January 29, 2014, Fitzgerald filed a motion for entitlement to tax costs and attorney’s fees pursuant to section 57.105(7), Florida Statutes (2014). In her motion, Fitzgerald argued that she was entitled to attorney’s fees and costs “as the prevailing party based on the contract between the parties which formed the basis of the action.” In its memorandum of law in opposition to the motion for entitlement, the Bank argued that Fitzgerald could not prevail on the merits on the grounds that the Bank is not a party to the mortgage contract and yet rely on that same contract to seek attorney’s fees from the bank under the contract’s fee provision and the reciprocity provision in section 57.105(7), Florida Statutes.

The trial court subsequently entered an order granting Fitzgerald’s motion for entitlement, After an evidentiary hearing, the trial court entered a final judgment taxing attorney’s fees and costs against the Bank. The trial court awarded Fitzgerald $34,829.06 in attorney’s fees, $2,728.45 in pre-judgment interest, and $3,562.50 for expert witness fees, for a total amount of $41,120,01. This appeal ensued.

II. STANDARD OF REVIEW

Because it concerns a question of law, we review de novo a trial court’s final judgment determining entitlement to attorney’s fees based on a fee provision in the mortgage and the application of section 57.105(7). Florida Cmty. Bank, N.A. v. Red Road Residential, LLC, 197 So.3d 1112, 1114 (Fla. 3d DCA 2016); Attorney’s Title Ins. Fund, Inc., v. Landa-Fosada, 984 So.2d 641, 643 (Fla. 3d DCA 2008) (finding that “[o]ur standard of review is de novo because the ruling on the attorney’s fees involves an erroneous interpretation and application of Florida law”).

III. ANALYSIS

It is well-established that attorney’s fees may not be awarded unless authorized by contract or statute. See Attorney’s Title Ins., 984 So.2d at 643 (“Florida has long followed the so-called ‘American Rule,’ which stands for the proposition that attorney’s fees are awardable pursuant to an entitling statute or a contract between the parties.”); Leitman v. Boone, 439 So.2d 318, 319 (Fla. 3d DCA 1983). Here, Fitzgerald’s claim to fees rests on the mortgage’s fee provision and the reciprocity provision of section 67.105(7).

On appeal, the Bank argues that because the trial court found that the Bank lacked standing to bring suit under both the mortgage and note; Fitzgerald cannot recover fees pursuant to section 67.105(7). We agree.

Section 57.105(7) provides as follows:

(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This'subsection applies to any contract entered into on or after October 1,1988.

Because section 57.105(7) shifts the responsibility for attorney’s fees, it is in derogation of common law and must be strictly construed. See Florida Cmty. Bank, 197 So.3d at 1115. The effect of section 57.105(7) is to statutorily transform a unilateral attorney’s fees contract provision into a reciprocal provision. Id,

Section 57.105(7), however, cannot transform a contract’s unilateral fee provision into a reciprocal obligation where, as here, no contract exists between the parties. Fielder v. Weinstein Design Group, Inc., 842 So.2d 879, 880 (Fla. 4th DCA 2003) (finding that individual who was not a party to the contract cannot' recover prevailing party fees nor can such fees be assessed against him); Hanna v. Beverly Enterprises-Fla., 738 So.2d 424, 425 (Fla. 4th DCA 1999) (affirming denial of attorney’s fees under section 57.105(2) because no contract existed between the parties); Florida Med. Ctr., Inc. v. McCoy, 657 So.2d 1248, 1252 (Fla. 4th DCA 1995) (holding that where trial court found that defendant did not incur obligations under contract containing attorney’s fees provision, “there is no basis to invoke the compelled mutuality provision of section 57.105(2)”); cf. Bank of New York Mellon v. Mestre, 159 So.3d 953, 957 (Fla. 5th DCA 2015) (holding that there was no contractual basis for attorney’s fees where signatures on mortgage were fraudulent and noting that “we are doubtful that section 57.105(7) authorizes attorney’s fees pursuant to a contract that was found to have never existed”); Novastar Mortg., Inc. v. Strassburger, 855 So.2d 130, 131 (Fla. 4th DCA 2003) (finding that appellees were not entitled to recover attorney’s fees under the mortgage and section 57.105(7) because they were not parties to the mortgage).

We find our sister court’s opinion in HFC Collection Ctr., Inc. v. Alexander, 190 So.3d 1114 (Fla. 5th DCA 2016), squarely on point. In that case, HFC Collection Center (“HFC”) sued Stephanie Alexander (“Alexander”) to collect past due amounts that Alexander allegedly owed American Express pursuant to a credit card agreement. HFC claimed that it was the assignee of the credit card agreement, and was therefore entitled to pursue American Express’s collection rights against Alexander. Alexander, however, asserted in an affirmative defense that HFC lacked standing to bring suit, and Alexander prevailed when the trial court entered summary judgment in her favor. In awarding summary judgment in Alexander’s favor, the trial court found that HFC failed to prove that it was an assignee of the credit card agreement, and that therefore no contractual relationship existed between HFC and Alexander. 190 So.3d at 1116.

Following the entry of summary judgment in her favor, Alexander moved to recover fees pursuant to both the attorney’s fees provision contained in the credit card agreement and section 57.105(7). Id. The trial court granted attorney’s fees in favor of Alexander and the circuit court sitting in its appellate capacity affirmed the award of attorney’s fees.

On appeal, the Fifth District reversed the fee award. The Fifth District concluded that the trial court’s determination that HFC was not the assignee of the credit card agreement between American Express and Alexander meant that no contract existed between HFC and Alexander. The Fifth District, therefore, reasoned that “[i]f there is no contract between the parties, which would entitle one to recover attorney’s fees in the first place, ‘there is no basis to invoke the compelled mutuality provisions of section 57.105(7).” Id. at 1117 (quoting Florida Med. Ctr., Inc. v. McCoy, 657 So.2d 1248, 1252 (Fla. 4th DCA 1995)). The court further held that because no contract existed between the parties, “Alexander cannot employ section 57.105(7) as a basis for an attorney’s fees award after she proved that HFC never became a party to the contract.” Id. at 1117.

This Court’s opinion in Florida Community Bank is similarly instructive on the issue of section 57.105(7)’s application within the context of a mortgage foreclosure. In that case, the appellant bank sought to foreclose the mortgage on the property of the appellee, Ada Rios (“Rios”). The mortgage at issue contained a unilateral attorney’s fees provision in favor of the bank. In the motion to dismiss filed by Rios, she asserted that she never signed the mortgage. Rios further argued throughout the litigation that her signature on the mortgage documents was fraudulent. After the bank voluntarily dismissed Rios from its lawsuit, Rios sought attorney’s fees against the bank based on both the attorney’s fees provision contained in the mortgage and section 57.105(7). The trial court found that Rios was entitled to attorney’s fees, and entered a judgment awarding attorney’s fees to Rios against the bank.

This Court reversed the trial court’s order and held that in order for Rios to avail herself of section 57.105(7)’s reciprocity as the prevailing party, she “had the threshold burden to plead and establish that she was a party to the mortgage containing the fee provision.” 197 So.3d at 1116. This is so because “[o]nly the parties to a contract may avail themselves of section 57.105(7)’s entitlement to attorney’s fees.” Id. (emphasis added). This Court therefore reversed the fee judgment against the bank because Rios’s successful, principal defense was that she was a non-party to the contract, i.e., the mortgage. Reversal of the fee award was, therefore, required as Rios could not as a non-party to the contract establish her ability to invoke section 57.105(7)’s reciprocity. Id.

Here, the trial court specifically found that the Bank lacked standing because “[t]here was no Assignment of Mortgage, or any other document evidencing a transfer to the [Bank] prior to the institution of the action.” The trial court also found that the note was never negotiated in favor of the Bank, and that the Bank was neither a holder nor non-holder in possession with the rights of a holder. In awarding final judgment to Fitzgerald, the trial court determined that no contract existed between the Bank and Fitzgerald. Because the trial court found that no contract existed between the parties, “which would entitle one to recover attorney’s fees in the first place, ‘there is no basis to invoke the compelled mutuality provisions of section 57.105(7).” HFC Collection Ctr., 190 So.3d at 1117. Therefore, we find that the trial court erred in awarding fees to Fitzgerald based on a non-existent contract between the parties.

IV. CONCLUSION

Because Fitzgerald successfully obtained a judgment below that the Bank lacked standing to enforce the mortgage and note against her, we find that no contract existed between the Bank and Fitzgerald that would allow Fitzgerald to invoke the mutuality provisions of section 57.105(7). Because no contract existed between the parties, the trial court erred in awarding Fitzgerald attorney’s fees pursuant to section 57.105(7), and we reverse the trial court’s order awarding fees in favor of Fitzgerald.

Reversed and remanded.

      . The Bank did not appeal from the final judgment in favor of Fitzgerald.

      . Subsection (2) of section 57.105 was renumbered as (7) in 2003. The text of the subsection was unchanged.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Enrique DIAZ, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    CASE NO. 1D16-3037
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017.
    Enrique Diaz, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, and Barbara Debelius, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Enrique Diaz is serving multiple life sentences for offenses occurring prior to June 15, 1983. The circuit court denied his petition for writ of mandamus by which he sought to compel the Department of Corrections to apply gain-time to those sentences. He now seeks certiorari review, and finding no departure from the essential requirements of law in that determination, we deny the petition.

The version of section 944.275, Florida Statutes, in effect at the time of petitioner’s offenses called for the Department to deduct gain-time from the sentence of “every prisoner” meeting eligibility requirements, and it was only subsequent to June 15, 1983, that the statute was amended to expressly apply only to prisoners “sentenced to a term of years.” Diaz therefore argues that he is entitled to have gain-time applied to his life sentences. We agree, however, with the conclusion of the Fourth District Court of Appeal in Tal-Mason v. State, 700 So.2d 453 (Fla. 4th DCA 1997), that while prior versions of the gain-time statutes lack the “immediate clarity” of the present one, the meaning is the same. Id. at 456.

As it is commonly defined, to “deduct” means to subtract or take away an amount from a total. The mathematical operation of subtraction involves the deduction of a subtrahend, the amount being taken away, from the minuend, the total. The result is the difference between the two. In this context, the specific operation consists of the deduction of gain-time (the subtrahend) from the term of the inmate’s sentence (the minuend), and the resulting difference is what the statute refers to as the inmate’s “tentative release date.” See § 944.275(3)(a), Fla. Stat. (2016).

By its nature, however, a life sentence is not a determinate number of years. Because the term of a life sentence is not quantifiable in numerical terms, there is no known minuend from which to deduct gain-time. A basic tenet of statutory construction compels a court to interpret a statute so as to avoid an unreasonable or absurd result. See State v. Atkinson, 831 So.2d 172 (Fla. 2002); Thompson v. State, 695 So.2d 691 (Fla. 1997). Applying the construction of the statute urged by petitioner and thereby compelling the Department of Corrections to deduct gain-time from a life sentence would clearly result in the sort of absurdity the court is constrained to eschew. Accordingly, because it is impossible for the statute to operate as the petitioner contends it should be construed, neither this court nor the Department have any obligation to construe it in that manner.

'While the Department maintains a record of gain-time that would otherwise have been awarded to petitioner in order to allow its application in the event his life sentences are reduced to a quantifiable term of years, it is under no ministerial duty to apply or deduct that gain-time from petitioner’s sentences unless and until that contingency comes to pass. The petition for writ of certiorari is therefore DENIED on the merits.

ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.


author: VILLANTI, Chief Judge.

text:
    PREMISE, INC.; Stay Secure Solutions, LLC; and Robert G. Nowels, Appellants, v. WITHLACOOCHEE RIVER ELECTRIC COOPERATIVE, INC., Appellee.
    Case No. 2D16-3466
    District Court of Appeal of Florida, Second District.
    Opinion filed March 10, 2017

      Harold D. Holder, III, and J. Carter Andersen of Bush Ross, P.A., Tampa, for Appellants.
    Morgan W. Streetman of Streetman Law, Tampa, for Appellee.
   VILLANTI, Chief Judge.

Premise, Inc., Stay Secure Solutions, LLC, and Robert G. Nowels (collectively “Premise”) appeal an order which denied a motion to set aside final judgment entered in favor of Withlacoochee River Electric Cooperative, Inc. (WREC), in an action for breach of contract arising from a purchase and maintenance agreement. Because the trial court based the default judgment amount upon its erroneous belief that the damages alleged in the complaint were liquidated, we must reverse.

Premise contracted with WREC for the purchase and maintenance of computer hardware and software. The terms of the contract included a five-year hardware and software support plan from IBM. When Premise failed to provide the support plan starting in the third year of the five-year term, WREC filed a complaint asserting that its “damages are at a minimum the cost of the line item Defendants failed to provide, which totaled $47,994.85 ($44,855 plus 7% tax).” Premise did not respond to WREC’s complaint, and default was entered. The trial court then entered final judgment in favor of WREC, and it awarded damages without conducting an eviden-tiary hearing because WREC requested liquidated damages based on the line item from the contract. Thereafter, Premise filed an amended motion to set aside final judgment and request for evidentiary hearing, in which it argued that the court erred in awarding damages without holding a hearing because the damages were not liquidated. A hearing on the motion was held, and the trial court ruled in favor of WREC, denying the motion. This appeal follows.

As a general rule, Florida Rule of Civil Procedure 1.440(c) requires an evi-dentiary hearing on claims for unliquidated damages. See Wells Fargo Bank, Nat’l Ass’n v. Sawh, 194 So.3d 475, 481 (Fla. 3d DCA 2016). “Damages are unliquidated when their ascertainment requires the taking of testimony.” Medcom USA, Inc. v. Ryder Homes & Groves Co., 847 So.2d 594, 596 (Fla. 2d DCA 2003). Conversely, to be liquidated, the damages alleged in the complaint must be certain without the necessity of an evidentiary hearing and “the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So.2d 1148, 1150 (Fla. 4th DCA 2006) (quoting Pierce v. Anglin, 721 So.2d 781, 783 (Fla. 1st DCA 1998)). “Specific damages that are alleged in the complaint are admitted by default[,] ... become liquidated damages,” and require no further proof of damages. Ciprian-Escapa v. City of Orlando, 172 So.3d 485, 489 (Fla. 5th DCA 2015); Maggiano v. Whiskey Creek Prof'l Ctr., LLC, 160 So.3d 535, 536 (Fla. 2d DCA 2015). However, in order to become liquidated in this manner, the damages must be definite and final. Ciprian-Escapa, 172 So.3d at 489. Moreover, “while specific damages alleged in a complaint may be considered in some circumstances as liquidated, where, as here, the specific sum stated is claimed to be ... the minimum amount due ... the amount alleged is not liquidated.” Sawh, 194 So.3d at 480.

Here, in WREC’s complaint, it asserted that its “damages are at a minimum the cost of the line item Defendants failed to provide, which totaled $47,994.85 ($44,-855 plus 7% tax).” (Emphasis added.) The use of the phrase “damages are at a minimum” in a complaint is inconsistent with the assertion that the trial court can determine liquidated damages without a hearing. Therefore, under the circumstances of this case, the default does not dispense with the need for a hearing on damages after notice. See Fla. R. Civ. P. 1.440(e); Ciprian-Escapa, 172 So.3d at 488 (stating that the failure to comply with Florida Rule of Civil Procedure 1.440 is reversible error).

Accordingly, we reverse and remand for an evidentiary hearing to determine damages.

Reversed and remanded with instructions.

CASANUEVA and KHOUZAM, JJ., Concur.


author: LOGUE, J.

text:
    O’Donahue MAIRS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2762
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017.
    O’Donahue Mairs, in proper person.
    Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

We treat Appellant’s motion as one filed under Florida Rule of Criminal Procedure 3.801 and affirm. We conclude that the trial court properly awarded Appellant jail credit for the time he served in county jail between the date authorities returned him to jail for violating probation and the date the court sentenced him. This affirmance is without prejudice to Appellant seeking appropriate relief for gain time or prison credit in the appropriate forum.

Affirmed.


text:
    Joseph CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1090
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017
    Rehearing Denied April 11, 2017

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

The defendant, Joseph Carter, seeks review of the trial court’s denial of his 3.850 motion for postconviction relief challenging the constitutionality of his aggregate sentence of 152 years in prison, with parole. We reverse.

In 1979, the defendant, who was a minor at the time, was found guilty of burglary and sexual battery and was sentenced to a total of 152 years for both counts, with parole. In 1982, he was given a presumptive parole release date (PPRD) of March 25, 1993. The PPRD was pushed back, however, due to various disciplinary reports. From 2007 forward, the defendant did not have any disciplinary reports and in 2007, his PPRD was set for March 2016.

In December 2015, the defendant was interviewed by a parole commission investigator regarding the possibility of parole. The investigator recommended parole. However, in April 2016, the parole commission denied parole and provided that the defendant “will be Reinterviewed for [his] Extraordinary Interview during the month of October, 2022.”

The defendant argued in his postconviction motion that the aggregate sentence of 152 years was a de facto life sentence of a minor and therefore unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) and Henry v. State, 175 So.3d 675 (Fla. 2015). His sentence was unconstitutional, he contended, because his parole eligibility was not a meaningful opportunity for release. The defendant sought resentencing under sections 775.082(3)(c) and 921.1401, Florida Statutes (2014). The trial court denied his motion and this appeal followed.

Notwithstanding the fact that he will be reevaluated for the possibility of parole in 2022, we conclude the defendant is correct and that he is entitled to resentencing under sections 775.082(3)(c) and 921.1401. See Atwell v. State, 197 So.3d 1040, 1048 (Fla. 2016) (“In most respects, a sentence of life with the possibility of parole for first-degree murder, based on the way Florida’s parole process operates under the existing statutory scheme, actually resembles a mandatorily imposed life sentence without parole that is not ‘proportionate to the offense and the offender.’ ” (quoting Horsley v. State, 160 So.3d 393, 406 (Fla. 2016))); Henry v. State, 175 So.3d 675, 680 (Fla. 2015), cert. denied, — U.S. -, 136 S.Ct. 1455, 194 L.Ed.2d 552 (2016) (“Because we have determined that [the defendant’s] sentence is unconstitutional under Graham, we conclude that [the defendant] should be resentenced in light of the new juvenile sentencing legislation enacted by the Florida Legislature in 2014, ch.2014-220, Laws of Fla.”); Miller v. State, 208 So.3d 834 (Fla. 3d DCA 2017) (“The State’s contention that [the defendant] was parole-eligible as early as twelve years after the commission of first-degree murder is irrelevant.”).

We therefore reverse the defendant’s aggregate 152-year sentence for burglary and sexual battery and remand to the trial court for the appropriate resentencing under section 775.082(3)(c), Florida Statutes and section 921.1401, Florida Statutes.

Reversed and remanded with instructions.

      . The defendant was sentenced to 137 years for the burglary count and 15 years for the sexual battery count. The conviction and sentence were affirmed on direct appeal in Carter v. State, 410 So.2d 552 (Fla. 3d DCA 1982).


text:
    VILLAGES OF AVIGNON COMMUNITY DEVELOPMENT DISTRICT, Appellant, v. Ken BURTON, Jr., Manatee County Tax Collector, Appellee.
    Case No. 2D16-1048
    District Court of Appeal of Florida, Second District.
    Opinion filed March 17, 2017.

      Brian A. Crumbaker, Gary V. Perko, and Mohammad O. Jazil of Hopping Green & Sams, P.A., Tallahassee; and Scott D. Clark and Mitchell E. Albaugh of Clark & Albaugh, LLP, Winter Park, for Appellant.
    Janelle L. Esposito, Patrick G. Bryant, and Matthew E. Bobulsky of Esposito Law Group, P.A., Bradenton, for Appellee.
   VILLANTI, Chief Judge.

Villages of Avignon Community Development District (the Villages) seeks review of the final declaratory judgment entered in favor of Ken Burton, Jr., Manatee County Tax Collector, in an action to determine the priority of competing liens held by the Villages and Manatee County against the same real property. The parties agreed on the facts, and the case was decided on the Villages’ motion for judgment on the pleadings and the Tax Collector’s motion for summary judgment. After extensive argument, the trial court held that the ad valorem tax liens held by the County were “superior” to the assessment liens held by the Villages, and it authorized the Tax Collector to issue tax certificates that would be sold subject to the Villages’ assessment liens. After a thorough review of the record and the supplemental briefs filed by the parties, and after considering the points raised at oral argument, we affirm, but we write to certify a question of great public importance to the supreme court.

As noted, the facts are not in dispute and center on three parcels of real property in Manatee County. The County assessed ad valorem property taxes against these three parcels as authorized by article VII, section 9(a), of the Florida Constitution, which provides that counties and municipalities shall levy ad valorem taxes. Section 197.122(1), Florida Statutes (2015), which codifies and effectuates this constitutional provision, provides, in pertinent part:

All taxes imposed pursuant to the State Constitution and laws of this state shall be a first lien, superior to all other liens, on any property against which the taxes have been assessed and shall continue in full force from January 1 of the year the taxes were levied until discharged by payment or until barred under chapter 95.

Because the ad valorem taxes for these parcels are unpaid, the County requested that the Tax Collector issue tax certificates for the parcels, to be sold pursuant to section 197.432(1).

However, the parcels at issue are also part of the Villages of Avignon Community Development District. As a community development district (CDD), the Villages is authorized by statute to levy and collect special assessments for the development and maintenance of CDD facilities. See § 190.021(2), Fla. Stat. (2015). The Villages levied assessments on these same three parcels, those assessments were unpaid, and the Villages recorded liens for the unpaid assessments against the parcels. As was its prerogative, when the assessments remained unpaid, the Villages filed a foreclosure action against the properties, and it took title to the properties subject to the County’s tax liens.

The dispute underlying this case arose when the County informed the Villages of its intent to have the Tax Collector issue tax certificates for the parcels in question to satisfy the County’s liens. The Villages took the position that the Tax Collector could not legally issue tax certificates because doing so would impair the status of the Villages’ assessment liens, which it argued were coequal with the County’s tax liens under section 190.021(9). The Villages claimed that because its assessment liens were coequal with the County’s tax liens, the Tax Collector could not issue tax certificates while the Villages owns the parcels because to do so would improperly “wipe out” its coequal assessment liens. In response to this dispute between the Villages and the County, the Tax Collector filed a declaratory judgment action to resolve the question of the relative priority of the liens and to obtain a determination of its obligations under chapter 197. In its final judgment, the trial court declared that the Tax Collector could issue tax certificates but that the certificates would be sold subject to the Villages’ liens. The Villages has appealed this ruling.

As an initial matter, we agree with the Villages that the trial court’s decision regarding the relative priority of the parties’ liens is incorrect, but we conclude that the error is a semantic, rather than substantive, one. In our view, the plain language of section 190.021(9) could not express a clearer intent. That statute plainly says that CDD liens are “coequal with the lien of state, county, municipal, and school board taxes.” § 190.021(9). Therefore, the trial court’s ruling that the County’s tax liens were “superior” to the Villages’ assessment liens is simply incorrect. Further, case law that determined the priority of these types of liens based on the relative “dignity” arising from their source, i.e., either constitutional or statutory, is no longer good law in light of the 1999 enactment of section 190.021(9). Therefore, to the extent that the trial court concluded that the County’s tax liens were superior to the Villages’ assessment liens, the trial court’s ruling was incorrect.

However, that decision does not fully resolve the matter before this court. In both its answer and affirmative defenses and in its motion for judgment on the pleadings, the Villages argued that the coequal status of its lien meant that the County was prohibited from having the Tax Collector issue tax certificates to satisfy its liens until such time as the Villages conveyed the property to “a non-exempt entity or entities,” and it affirmatively sought a ruling forbidding the issuance of the tax certificates. In making this argument, the Villages relied on the supreme court’s decision in Kostecos v. Johnson, 85 So.2d 594 (Fla. 1956), which dealt with coequal liens held by a county and a drainage district. As explained below, we do not believe Kostecos requires the result advocated by the Villages, and we question whether the “construct” set forth in Koste-cos remains good law today.

In Kostecos, Sarasota County had a lien against certain property for unpaid county taxes, and the Pearce Drainage District had a coequal lien against the same property for unpaid drainage district taxes. Id. at 595, 597. The county foreclosed first on its tax liens and issued a Veterans’ Homestead Act deed to Johnson. Id. at 595. The drainage district foreclosed on its lien shortly thereafter (without making the county a party), and the court issued a Special Master’s deed to Kostecos. Id. at 596. Kostecos then sued Johnson for ejectment, claiming that his later deed was superior to Johnson’s earlier deed. Id.

Kostecos argued that by foreclosing first, the county had traded its lien for a deed, making its deed subject to the drainage district’s lien and making his deed from the drainage district lien proceedings superior to the earlier deed. Id. at 596-97. But the supreme court disagreed. The supreme court held that when the county converted its liens into title, it was simply holding title as security for the payment of taxes due to the government. Id. at 599. Therefore, “[t]he equality of position held by the governmental unit (the county) is not destroyed by substituting title to the land itself for the liens it formerly held absent legislative action so providing.” Id Instead, both liens were maintained and would have to be satisfied by the subsequent purchasers. To the extent that the court determined that the drainage district’s lien was held in suspension while the county owned the property, it did so in large part because “no procedure was at that time provided for enforcing such drainage tax liens against the county after it acquired its title.” Id. at 598. Under the statutory scheme then in effect, the drainage district simply had no ability to enforce its liens against the county. So to avoid the elimination of the drainage district’s coequal lien, the supreme court created this construct of a suspended lien in an effort to remedy “the failure of the Legislature to provide a procedure for bringing the county into court and enforcement of such ‘equal dignity liens’ of other taxing districts.” Id. at 598.

Relying on Kostecos in the trial court, the Villages advocated for applying its suspended lien “construct” to the facts of this case, which would result in the County’s liens remaining in suspension until such time as the Villages sells the parcels to third parties. However, we question whether Kostecos remains good law inasmuch as the legal landscape has changed significantly since 1956, thereby altering the rights of the parties before this court. Therefore, we do not agree that Kostecos is determinative of this issue for three reasons.

First, unlike the drainage district in Kostecos, the Villages had the statutory authority to join the County in an enforcement proceeding relating to its assessment liens. Under section 173.15, Florida Statutes (2015), the Villages could have made the County a party to its assessment lien foreclosure action, and the issue regarding the priority and satisfaction of the competing coequal liens could have been resolved before the Villages took title to the parcels. The Villages’ decision to forego this opportunity does not mean that it can now strategically hold the County’s liens hostage until such time as the Villages decides to sell the parcels. And while we recognize that this resolution may force the Villages to satisfy the County’s tax liens if it wishes to continue to hold title to the parcels, we note that this is a problem of the Villages’ own making.

Second, several statutes first enacted after Kostecos was decided seem to evidence the legislature’s intent to remedy the problem that the Kostecos construct was created to address. For example, section 197.552, enacted in 1972, specifically provides that an existing CDD lien will survive the issuance of a tax certificate:

Except as specifically provided in this chapter, no right, interest, restriction, or other covenant shall survive the issuance of a tax deed, except that a lien of record held by a municipal or county governmental unit, special district, or community development district, when such lien is not satisfied as of the disbursement of proceeds of sale under the provisions of s. 197.582, shall survive the issuance of a tax deed.

(Emphasis added.) Hence, the legislature clearly contemplated that buyers of tax certificates would hold those certificates subject to the CDD assessment liens—not that counties were barred from selling tax certificates by the existence of coequal CDD liens.

Similarly, section 190.024 provides that “[a] sale of any of the real property within the [CDD] for state and county or other taxes shall not operate to relieve or release the property so sold from the lien for subsequent district taxes or installments of district taxes, which lien may be enforced against such property as though no such sale thereof had been made.” Thus, the legislature clearly anticipated the issuance of tax certificates despite the existence of CDD assessment liens on the same parcels, and it sought to preserve the right of CDDs to collect on their liens despite the issuance of such certificates. If we were to continue to apply the Kostecos construct, it would render sections 197.552 and 190.024 meaningless; something appellate courts will not do. See, e.g., Palm Beach Cty. Canvassing Bd. v. Harris, 772 So.2d 1273, 1286 (Fla. 2000) (holding that “[c]ourts should construe statutes to give effect to all provisions, and not to render any part meaningless”); Lewis v. City of Tampa, 64 So.3d 143, 145 (Fla. 2d DCA 2011); Stratton v. Sarasota County, 983 So.2d 51, 55 (Fla. 2d DCA 2008) (citing Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 366 (Fla. 2005); and Unruh v. State, 669 So.2d 242, 245 (Fla. 1996)). Rather than continuing to apply the now-outdated Kostecos construct, this court will instead enforce the trial court’s resolution, which comports with the entire statutory scheme enacted by the legislature and permits the Tax Collector to issue tax certificates subject to the Villages’ liens.

Third, we conclude that continuing to follow the Kostecos construct would be directly contrary to the legislature’s directive that the competing liens be considered coequal. Under the Kostecos construct, the first lienholder to foreclose is vested with the power to hold the other lien in abeyance until such time as the first lienholder decides to sell the property. But if the liens are truly coequal, one coequal lienholder should not be able to force the other coequal lienholder to wait until the first lienholder acts. To do so is to improperly subjugate the second lienholder’s lien to the first lienholder’s whims—the very antithesis of a status of coequal. Thus, the Kostecos construct appears to conflict with the current statutory scheme, leading us to question whether it remains good law.

In sum, we hold that while the trial court improperly determined that the County’s liens were superior to those of the Villages, it properly authorized the Tax Collector to issue tax certificates that will be subject to the Villages’ assessment liens. Therefore, we affirm the trial court’s ruling to this extent. See Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (explaining the “longstanding principle of appellate law” that the appellate court may “affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record’” (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999))).

Moreover, given the current volume of foreclosure litigation and the questionable viability of Kostecos in light of subsequent legislative enactments, we certify the following question to the Florida Supreme Court as being one of great public importance:

WHEN A COUNTY HOLDS AN AD VALOREM TAX LIEN AGAINST PROPERTY AND A COMMUNITY DEVELOPMENT DISTRICT (CDD) FORECLOSES ON A COEQUAL ASSESSMENT LIEN ON THE SAME PROPERTY WITHOUT JOINING THE COUNTY IN THE FORECLOSURE ACTION, MAY THE COUNTY ISSUE A TAX CERTIFICATE ON THE PROPERTY SUBJECT TO THE CDD ASSESSMENT LIEN OR IS THE COUNTY’S TAX LIEN HELD IN SUSPENSION UNTIL THE CDD SELLS THE PROPERTY TO A THIRD PARTY PURSUANT TO KOSTECOS V. JOHNSON, 85 So.2d 594 (FLA. 1956)?

Affirmed; question certified.

SLEET and LUCAS, JJ., Concur.

      . Because the issuance of a tax certificate is a prerequisite to the issuance of a tax deed, see § 197.502, a lien surviving the issuance of a tax deed must necessarily have survived the issuance of a tax certificate.


author: WALLIS, J.

text:
    Davon WHITE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3562
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 17, 2017

      Davon White, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel Perrone, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   WALLIS, J.

Davon White appeals the summary denial of his three-ground motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We address only one of White’s grounds for relief. Finding that White’s sentence for attempted armed robbery potentially exceeds the statutory maximum, we reverse and remand for further proceedings consistent with this opinion.

In 2007, White entered a negotiated plea to two counts for second-degree murder with a firearm and one count for attempted armed robbery. The trial court sentenced White to forty years’ incarceration on each count, with twenty-five years mandatory-minimum for discharging a firearm and causing death or great bodily harm during the commission of his offenses. See § 775.087(2)(a)3., Fla. Stat. (2005).

The record reflects that the trial court misclassified White’s conviction for attempted armed robbery as a first-degree felony. We note that attempted robbery with a firearm is a “second degree felony for which the maximum punishment is fifteen years in prison.” Pooley v. State, 403 So.2d 593, 594 (Fla. 1st DCA 1981); see also §§ 775.082(3)(d), 777.04(4)(c), 812.13(2)(a), Fla. Stat. (2005). The trial court could not have reclassified the offense to a first-degree felony “because attempted armed robbery is a felony in which the use of a weapon is an essential element.” See State v. Tripp, 642 So.2d 728, 730 n.2 (Fla. 1994). However, the trial court properly imposed the twenty-five year mandatory-minimum sentence under section 775.087(2)(a)3., the 10-20-Life Statute, because that provision controls over the fifteen-year maximum outlined in section 775.082(3)(d). See Mendenhall v. State, 48 So.3d 740, 742 (Fla. 2010).

While there may exist other statutory grounds for enhancing White’s sentence for attempted armed robbery, the limited record before us is devoid of any evidence establishing a proper basis for enhancement. Therefore, we reverse and remand this case to the trial court either to attach portions of the record establishing a proper basis for enhancing White’s sentence or to resentence him to a legal sentence for a second-degree felony. See Williams v. State, 850 So.2d 656, 658 (Fla. 1st DCA 2003) (reversing reclassification of attempted armed robbery to first-degree felony where record reflected no basis for reclassification or enhanced sentence).

AFFIRMED in part; REVERSED in part; and REMANDED with Instructions.

ORFINGER and EDWARDS, JJ., concur.

      . We affirm the remaining grounds without further discussion.


text:
    The STATE of Florida, Appellant, v. Castro GUERRA, Appellee.
    No. 3D14-372
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

The State appeals the trial court’s order granting Castro Guerra’s motion for post-conviction relief and ordering a new trial. We affirm, holding that the trial court correctly determined that Guerra’s case should have been placed in the Montgomery pipeline and, had this occurred, Guerra would have obtained the same result (reversal and remand for a new trial) as those defendants whose very cases this court relied upon in originally affirming Guerra’s conviction. See Guerra v. State, 44 So.3d 226 (Fla. 3d DCA 2010) (affirming conviction and relying upon Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010)) and Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010).

The trial court granted relief, finding that Guerra should have been treated the same as the defendants in Cúbelo and Salonko. We agree, and note that this court and our sister courts have afforded the same relief to similarly-situated defendants upon reconsideration in light of the Florida Supreme Court’s decision in Haygood v. State, 109 So.3d 735 (Fla. 2013). See, e.g., Moore v. State, 165 So.3d 712 (Fla. 3d DCA 2015); Paul v. State, 183 So.3d 1154 (Fla. 5th DCA 2015); Dowe v. State, 162 So.3d 35 (Fla. 4th DCA 2014); Moninger v. State, 137 So.3d 1129 (Fla. 4th DCA 2014); Smith v. State, 145 So.3d 972 (Fla. 1st DCA 2014); Barros-Dias v. State, 141 So.3d 674 (Fla. 2d DCA 2014).

While Guerra’s case presents unique circumstances, the circumstances are not unprecedented, and we have on such previous occasions granted the very relief afforded by the trial court. See, e.g., De la Hoz v. Crews, 123 So.3d 101 (Fla. 3d DCA 2013). We see no principled basis to distinguish Guerra’s treatment from Cúbelo and Sal-onko, and find no error in the trial court’s order granting a new trial.

Affirmed.

      . State v. Montgomery, 39 So.3d 252 (Fla. 2010).

      . Quashed by the Florida Supreme Court in Cubelo v. State, 137 So.3d 1019 (Fla. 2014) and, on remand, reversed and remanded for new trial in Cubelo v. State, 137 So.3d 1193 (Fla. 3d DCA 2014).

      . Quashed by the Florida Supreme Court in Salonko v. State, 137 So.3d 1022 (Fla. 2014) and, on remand, reversed and remanded for new trial in Salonko v. State, 162 So.3d 40 (Fla. 1st DCA 2014).

      . We note, parenthetically, that during the pendency of this appeal, Guerra filed a petition with the Florida Supreme Court seeking belated discretionary review and habeas corpus relief. See Guerra v. State, No. SC 14-2060. Guerra asserted in that petition that his appellate counsel in the direct appeal (not his present counsel) rendered ineffective assistance and affirmatively misadvised Guerra that there was no basis for discretionary ra-view in the Florida Supreme Court. The Florida Supreme Court stayed that proceeding pending disposition of the instant appeal.


author: SALTER, J.

text:
    ZENITH INSURANCE COMPANY, Appellant, v. METROBANK S.A., et al., Appellees.
    No. 3D17-298
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017.
    Greenberg Traurig, P.A., and David O. Batista and Courtney M. Keller (Fort Lauderdale) and Julissa Rodriguez and Stephanie L. Varela; Walters Levine & Lozano, and Thomas C. Valentine (Sarasota), for appellant.
    Capote Law, P.A., and Susan Capote, for appellees.
    Before SUAREZ, C.J., and ROTHENBERG and SALTER, JJ.
   SALTER, J.

Zenith Insurance Company (“Zenith”) appeals a final order denying Zenith’s motion to intervene in a mortgage foreclosure case brought by the appellee/plaintiff, Me-trobank, S.A. (“Metrobank”), against a group of obligors (collectively, “Welo”) regarding 17 properties in nine Florida counties. We affirm the order denying intervention and vacate our temporary stay in this case for the reasons which follow.

Zenith’s alleged claims against certain Welo entities (and 13 of the 17 properties subject to Metrobank’s mortgage liens) are based on a judgment lien entered against those entities in December 2015 for approximately $1.8 million—just before Me-trobank’s mortgage lien was recorded, and three months before Metrobank’s foreclosure action began—and a related but subsequent judgment lien for attorney’s fees for some $973,000 obtained and recorded by Zenith in December 2016.

When Metrobank commenced its foreclosure action, it joined Zenith as a defendant based on the first and larger judgment recorded by Zenith. Zenith moved to dismiss based on its alleged lien priority, and its counsel threatened sanctions under section 57.105, Florida Statutes (2016), if Metrobank persisted in its joinder of Zenith. Metrobank voluntarily dismissed Zenith from the action in May 2016.

Metrobank filed a motion for final summary judgment of foreclosure and scheduled the motion for hearing on December 12, 2016. Zenith’s second final judgment against Welo, for approximately $973,000 in attorney’s fees, was entered December 1,2016 (in Zenith’s separate lawsuit). After business hours on December 11, 2016 (the day before the hearing on Metrobank’s motion for a final summary judgment of foreclosure against Welo), Zenith moved to intervene in the Metrobank foreclosure case. The court granted the final summary judgment of foreclosure (for approximately $6.9 million) in favor of Metrobank but did not enter an order on Zenith’s motion to intervene.

On February 9, 2017, the court heard Zenith’s supplemental motion to intervene and denied it. This appeal by Zenith followed. The trial court reset the foreclosure sale for March 28, 2017. Zenith moved to expedite this appeal; we granted that motion and entered a temporary stay of the foreclosure sale pending further order of this Court.

Analysis

The trial court did not abuse its discretion in denying Zenith’s motion to intervene—a motion filed only hours before the hearing scheduled on Metrobank’s pending motion for a final summary judgment of foreclosure. See Fla. R. Civ. P. 1.230 (intervention to be in subordination to the main proceeding); Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505 (Fla. 1992); Havanatur, S.A. v. 747 Travel Agency, Inc., 463 So.2d 404 (Fla. 3d DCA 1985).

In the present case, Zenith’s right to enforce the approximately $1.8 million judgment lien against Welo is unaffected by Metrobank’s enforcement of its later-recorded mortgage lien. Indeed, Zenith itself sought and obtained dismissal from the action (in May 2016) based on that claim some seven months before it changed position and sought to intervene.

As to Zenith’s post-mortgage judgment lien for approximately $973,000.00 in attorney’s fees, Zenith has sought collection of that judgment in other proceedings, and its judgment lien for that amount postdates the lis pendens filed by Metrobank in the present case. Because Zenith was initially a defendant in Metrobank’s foreclosure suit, it could have counterclaimed in mid-2016 to assert that its remaining claim for attorney’s fees was entitled to priority over Metrobank’s lien, and it could have sought to foreclose its own allegedly-superior judgment liens against Welo and Metrobank in the case, but it did not. Zenith remains free to pursue any of its claims against Metrobank in its separately-pending circuit court lawsuits, though we express no opinion regarding those claims.

Affirmed.

      . These entities were formerly known as companies within the "Farm Stores” group.

      . On December 23, 2016, Zenith filed a separate action, still pending, against Metrobank and Welo.

      . Zenith’s judgment for its attorney’s fees against Welo was entered months after the 30-day intervention deadline (following re-cordation of Metrobank’s lis pendens) specified in section 48.23(l)(d), Florida Statutes (2016).

      . We have vacated our temporary stay of the foreclosure sale by separate order.


author: LAGOA, J.

text:
    Juan Joel MOLINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-53
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017
    Juan Joel Molina, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, SALTER, and EMAS, JJ.
   LAGOA, J.

Juan J. Molina appeals the trial court’s order denying his motion to correct an illegal sentence. We affirm. We write only to commend the trial court on its well-written order, which facilitated this Court’s review.


text:
    CELLNET 7, INC., and Celltech 7, Inc., Appellants, v. Adolfo LAINEZ, Appellee.
    No. 3D16-1373
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017.

      Maspons Sellek Jacobs and Suzette L. Russomanno, for appellants.
    Ramiro Christen Areces, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

Cellnet 7, Inc., and Celltech 7, Inc. (together, “Cellnet”), appeal a non-final order granting the appellee Adolfo Lainez’s motion to dismiss the complaint on the basis of forum non conveniens. We reverse.

Proceedings in the Circuit Court

The Cellnet companies are Florida corporations based in Doral, Florida. They import, export, and distribute mobile electronic devices, equipment, and accessories. Lainez is a resident of Honduras. Cellnet’s 2014 circuit court complaint alleged that in 2006 Lainez began purchasing phones and other accessories from Cellnet on a wholesale basis. Lainez and Cellnet later agreed, verbally, that Lainez would receive a three percent commission on phones and other goods sold by Cellnet directly to one of Lainez’s customers in Honduras (Distelsa Distribuidora De Telefonos, S.A., or “Dis-telsa”).

The complaint alleged that Cellnet and Lainez entered into a similar oral agreement regarding direct sales by Cellnet to another customer of Lainez in Honduras, Importadora y Distribuidora Telefonica, S.A., or “IDT.” Lainez was to serve as Cellnet’s representative in Honduras for purposes of managing logistics for sales, including return merchandise authorizations, for Cellnet’s sales to Distela and IDT. This relationship flourished until 2010, the complaint alleged, when market forces caused Distelsa and IDT to substantially reduce their purchases from Cellnet.

In 2011, Cellnet undertook a review of credit memos issued by Lainez for over $1,000,000.00 of Cellnet merchandise allegedly based on inspections by Lainez. As part of this review, Cellnet allegedly discovered that Lainez had received commissions on all goods sold to Distelsa and IDT, including the goods subject to the credit memos, and Lainez never shipped back the returned items to Cellnet. Cellnet valued these returned goods “in excess of $200,000.00.” Cellnet alleged that Lainez accepted mobile devices for return from Distelsa and IDT without authorization by Cellnet, and that he refused to return those goods or repay Cellnet for the value of those goods. Based on those allegations, Cellnet sued Lainez for conversion of the goods that were subject to the credit memos (and using or disposing of those goods for his own benefit), and for unjust enrichment.

Lainez responded to the complaint with a motion to dismiss for lack of personal jurisdiction, to dismiss under principles of forum non conveniens, and based on the statute of limitations. In support of the motion, Lainez filed an affidavit executed in Honduras which stated that he resides in Tegucigalpa, Honduras; that the business transactions with Cellnet, Distelsa, and IDT occurred in Honduras; that he does not have an office or agent in Florida; and that he performed all of his work, and received all payments, in Honduras.

Tracking some, but not all, of the elements of Florida Rule of Civil Procedure 1.061, “Choice of Forum,” and Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996), Lainez’s affidavit also stated that he is amenable to process in Honduras, waives any jurisdictional defenses there, and will utilize the date of filing of the Florida complaint as the pertinent date for any statute of limitations argument he might raise in Honduras. Finally, his affidavit declared that the witnesses were located in Honduras, the Honduran customers would be essential witnesses, and it would be “incredibly costly and impractical to litigate this case in Florida.”

The trial court heard Lainez’s motions at a non-evidentiary hearing in May 2016. The court focused on the forum non conve-niens arguments. Counsel for Lainez acknowledged that he had not addressed foreign law, while counsel for Cellnet argued that “it’s actually defendant’s burden to show that the adequate forum is Honduras, and if in fact the Court considers that the defendant has met its burden then the burden is shifted to plaintiff to show why Florida is the more convenient forum.” At the conclusion of the hearing, the trial court granted the motion to dismiss based on forum non conveniens. After the parties submitted competing orders and the court conducted a short, additional hearing, the court entered the dismissal order. This appeal followed.

Analysis

We review orders granting or denying a motion to dismiss based on forum non conveniens for an abuse of discretion. Abeid-Saba v. Carnival Corp., 184 So.3d 593, 599 (Fla. 3d DCA 2016); Fla. R. Civ. P. 1.061(a). In this case, we find an abuse of discretion based on Lainez’s failure to meet his burden by providing any evidence that Honduras is an adequate forum for his dispute with Cellnet. Lainez’s affidavit regarding his amenability to service of process in Honduras, waiver of jurisdictional defenses there, and willingness to accept the filing date of the Florida action for purposes of any defense in Honduras based on the statute of limitations, does not satisfy that burden.

“[A]n alternative forum does not have to be equivalent to the chosen forum to be adequate, but we have recognized that ‘dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.’ ” Cortez v. Palace Resorts, Inc., 123 So.3d 1085, 1092 (Fla. 2013) (quoting Kinney, 674 So.2d at 90). As another example, “a forum may be inadequate if it is grossly inefficient or given to extreme levels of partiality.” Hilton Int’l Co. v. Carrillo, 971 So.2d 1001, 1005 (Fla. 3d DCA 2008) (citing Leon v. Millon Air, Inc., 251 F.3d 1305, 1312 (11th Cir. 2001)). Lainez provided no affidavit by an attorney authorized to practice in Honduras, live testimony to that effect, or any other evidence to meet his burden regarding the adequacy of the courts and legal system in Honduras, regarding his dispute with Cell-net.

While there are reported federal court decisions determining or affirming that a Honduran court is adequate to determine a particular case, there appears to be no Florida case assessing the adequacy of the courts in Honduras to hear, rule upon, and enforce claims for conversion and unjust enrichment involving an oral contract, filed years after the pertinent transactions (2007 to 2011, according to the exhibits attached to the October 2014 complaint). Without any such support, this failure of proof requires reversal of the order of dismissal. In the present case, Lainez does not get the proverbial “second bite at the apple” to attempt to correct the failure to prove the adequacy of the proposed alternative forum.

The trial court also omitted any assessment of private interests—“the general rule that there is a strong presumption against disturbing the plaintiffs choice of forum, and ‘this presumption can be defeated only if the relative disadvantages to the defendant’s private interests are of sufficient weight to overcome this presumption.’ ” Rolls-Royce, Inc. v. Garcia, 77 So.3d 855, 860 (Fla. 3d DCA 2012) (quoting Kinney, 674 So.2d at 92). In the present case, there was record evidence that Lai-nez owns a home in South Florida, which he visits when he chooses, supporting the presumption in favor of Cellnet’s choice of forum.

Reversed and remanded, with directions to reinstate the complaint, and for further proceedings not inconsistent with this opinion.

      . Telemundo Network Grp., LLC v. Azteca Int'l Corp., 957 So.2d 705, 709 (Fla. 3d DCA 2007).

      . These points address the availability of the alternative forum, but not its adequacy.

      . See, e.g., Bridgestone/Firestone N. Am. Tire, LLC v. Garcia, 991 So.2d 912, 917 (Fla. 4th DCA 2008).

      . See, e.g., Stalinski v. Bakoczy, 41 F.Supp.2d 755, 760 (S.D. Ohio 1998).

      . A party’s failure to prove a required element of a cause of action or a motion in which evidence may be admitted or proffered—as distinguished from a reversal necessitated by a trial court error—ordinarily does not allow the party a new trial or hearing on remand in order to remedy the shortcoming and try again, Persinger v. Estate of Tibbetts, 727 So.2d 350, 351 (Fla. 5th DCA 1999); Emerald Pointe Prop. Owners' Ass'n v. Commercial Construction Indus., Inc., 978 So.2d 873, 879-80 (Fla. 4th DCA 2008).


text:
    Orlando NOA, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellee.
    No. 3D16-1367
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017

      Alvarez, Carbonell, Feltman, & DaSilva and Paul B. Feltman, for appellant,
    Conroy Simberg and Hinda Klein (Hollywood), for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

Orlando Noa appeals a non-final order denying his motion to compel a second appraisal of an insured windstorm loss claim under a policy insuring his home. The issue presented is whether any effects of “Ordinance and Law’ costs were subsumed in the initial appraisal conducted as provided by the policy. We affirm the order below, concluding that Mr. Noa’s post-appraisal submission of increased costs is not a legally sufficient basis for re-opening the existing appraisal or conducting a new one.

Loss and Appraisal

Mr. Noa obtained residential insurance coverage through First Home Insurance Company (“First Home”). In October 2005, with the policy in full force and effect, Hurricane Wilma damaged the residence. Mr. Noa submitted a claim to First Home, which assigned an adjuster to evaluate the loss. In December 2005, First Home advised Mr. Noa that the damages did not exceed the policy deductible of $4,392.00.

Over three years later, in August 2009, Mr. Noa submitted a second claim to First Home relating to the same residence, policy, and windstorm. This claim, detailed in a sworn statement and proof of loss form, was for $71,682.97, exceeding the deductible by $67,290.47. First Home rejected the claim and invoked the appraisal clause in the policy. As part of his second claim, Mr. Noa submitted a letter from a tile company reporting that the Old Havana tiles originally installed on the roof were no longer in stock and “have been out of circulation for a considerable time now,” making a color match difficult.

Mr. Noa’s appraiser, the insurer’s appraiser, and an umpire selected by the party appraisers, each evaluated the loss. The umpire and the insurer’s appraiser agreed on an actual cash value of the claim in April 2010, of $17,602.10. That computation allowed $3,780.00 for the replacement of 120 roof tiles, $1,200.00 for repair of the underlayment beneath the affected area, and $4,360.00 for treatment of the entire roof after installation of the new tiles to provide a color match. The 120 tiles comprised approximately 3% of the 3,200 square foot roof. The appraisal stated that it did not appraise any allowance for the effects of law and ordinances. The insurer paid the appraisal amount, less any deductible and any prior payment.

Less than a month after the appraisal award was entered and First Home paid the award amount (less the deductible) to Mr. Noa, a roofing contractor selected by Mr. Noa submitted a permit application to repair 30% of the roof with “current leaking,” reflecting a price of $8,700.00. The permit application was rejected by the building and zoning authority, as Miami-Dade County’s building code requires that not more than 25% of the total roof area can be repaired, replaced, or recovered in any twelve month period unless the entire roofing system or roof section complies with the current code. Fla. Bldg. Code § 611.1.1 (2007); Miami-Dade County, Fla., Code § 8-2 (2001). The contractor then prepared, and Mr. Noa signed, a contract for the full roof for $26,000.00. Mr. Noa submitted the contract to First Home with a request to fund the additional amount required as a result of the ordinance requirement.

First Home denied the full-roof additional claim, and in 2011 Mr. Noa filed a circuit court lawsuit in an effort to recover the differential amount of that post-appraisal claim. Thereafter, First Home became ihsolvent, and the Florida Insurance Guaranty Association (“FIGA”) was substituted as defendant in 2012. After various pretriál proceedings, the trial court denied FIGA’s motion to re-open the existing appraisal (to demonstrate that the award in eluded under 25% of the total roof area for repair), and the court denied Mr. Noa’s motion for a new appraisal regarding his additional claim for an ordinance and law award. Mr. Noa’s appeal followed.

Analysis

“Ordinance and Law” coverage provides additional reimbursement to the insured, in amounts and on other terms specified in the insurance policy, to cover “costs necessary to meet applicable laws and ordinances regulating the construction, use, or repair of any property or requiring the tearing down of any property, including the costs of removing debris.” § 627.7011(l)(b), Fla. Stat. (2011). The question before us is subject to de novo review, as it involves the interpretation of the appraisal and “Ordinance and Law” provisions of the policy.

While issues concerning coverage challenges are exclusively for the courts, the'appraisers are charged with determining the amount of the loss when an insurer admits there is a covered loss and there is a disagreement regarding the amount of the loss. See Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n 12, Inc., 54 So.3d 578, 581 (Fla. 3d DCA 2011). In order to perform competently as an appraiser for this purpose, and to be designated by a party or by other appraisers or the court (as an-umpire), logic and common sense require that an appraiser must have experience in the estimation of materials and labor costs for the repair and replacement of damaged property. In the case of roof work, appraisers must consider the requirements of the applicable building codes in order to estimate the cost of repair or replacement. This is an area for professional construction industry expertise and should be “baked into” the appraisers’ and umpire’s computations, and not left open for a re-appraisal or for a determination by the court.

Whether a building code provision- requires a particular standard for plywood decking, or the use of specified thicknesses of felt or shingles, or (as here) replacement of an entire roof if over 25% of the roof must be replaced, such provisions are established regulatory requirements known to, or knowable by, construction professionals and to be taken into account in computing the cost of the work when they conduct their appraisal. The appraisal provision in the present case sufficed to leave these issues to the appraisal panel, not the court.

This explains the notation on the appraisal award that “Law & Ordinance” was not appraised—the majority of the appraisal panel concluded that current building code requirements did not require replacement of the whole roof, and their estimation line items confirm an estimate of 3% of the roof area to be replaced, not 25% or more. The notation surely cannot mean that the appraisal is subject to circumvention a month later if the insured can just find a roofing contractor to sign a proposal stating that 30%, not 3%, of the roof needs replacement. If the appraisal award had concluded that the entire roof had to be replaced because the necessary re-roofing exceeded 25% of the area of the roof, then this additional cost would have been shown and the appraisal panel would have reported that ordinance and law costs were appraised and included.

To hold otherwise would allow the insured’s post-appraisal roofing contractor to step into the adjustment process as a super-umpire whose opinion supersedes the appraisal and requires a new round of valuation estimates. In this case, such a process would occur against the backdrop that the original appraisal award was issued almost five years after the windstorm damage, primarily due to the delay by the homeowner in filing a supplemental claim (nearly four years after the damage occurred). If the insured intends to offer a roofer’s professional opinion that the applicable building code will require replacement of the entire roof, not just 3% of the area of the roof, the appraisal process must surely be the time to offer that evidence—not as an afterthought on the heels of the appraisal.

The present case is distinguishable from Jossfolk v. United Property & Casualty Co., 110 So.3d 110 (Fla. 4th DCA 2013), because in that case the insurer had not raised its “under 25%” roof replacement argument in its motion for summary judgment. Id. at 113. The present case only involves the denial of the insured’s request for a second appraisal—not a summary judgment in favor of the insurer—on the grounds that the appraisal panel had previously considered and determined the percentage of replacement required. The present case is also distinguishable from Ceballo v. Citizens Property Insurance Corp., 967 So.2d 811 (Fla. 2007), relied upon as “determinative” in Jossfolk, 110 So.3d at 113. In Ceballo, the issue was whether Florida’s Valued Policy Law (VPL) required the insured to demonstrate an actual (incurred) loss before payment could be required for ordinance and laws coverage. The present case does not involve a total loss or the VPL, and Mr. Noa and his appraiser had already submitted the costs of the full-roof repair they proposed to the first appraisal panel.

Affirmed.

      . Although the insured's appraiser disagreed with the appraisal award and declined to sign it, the appraisal clause in the insurance policy specified that the award would become effective if signed by any two of the party appraisers and the umpire.

      . In submitting that permit application, the Miami-based, licensed roofer must have known, or in any event, should have known, that the application would be rejected based on longstanding Miami-Dade County building code requirements.

      . A different analysis could apply if a new, more onerous (i.e., .more expensive) building code requirement was imposed after the appraisal but before the commencement of the repair work. That did not occur in the present case.

      . The VPL, section 627.702, Florida Statutes (2016), requires an insurer to pay the face amount for which a covered property was insured if the property is a total loss as a result of a covered peril (with additional provisions not applicable here).


text:
    Juan Manuel FEBRES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2718
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017.
    Juan Manuel Febres, in proper person.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   LOGUE, J.

Juan Manuel Febres appeals the court’s order denying his rule 3.850 motion for postconviction relief. Because Febres has failed to satisfy the test for postconviction relief under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we affirm. See Mendoza v. State, 81 So.3d 579 (Fla. 3d DCA 2012) (noting that a strategic or tactical decision is not a valid basis for an ineffective assistance of counsel claim unless no competent counsel would have employed such tactics).

Affirmed.


text:
    Keon WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2618
    District Court of Appeal of Florida, Third District.
    Opinion filed March 22, 2017
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

The defendant appeals the trial court’s denial of his pro se motion to withdraw his guilty plea. The defendant argued in his motion, among other issues, that because he alleged that his plea was involuntary, the trial court was required to hold an evidentiary hearing. Contrary to the defendant’s argument, the trial court was not obligated to hold an evidentiary hearing where, as here, the record conclusively shows that the defendant was not entitled to relief. Williams v. State, 919 So.2d 645, 646 (Fla. 4th DCA 2006) (“Although rule 3.170(Z) does not expressly require a trial court to hold an evidentiary hearing, we [have held] that due process requires a hearing unless the record conclusively shows the defendant is entitled to no relief.”) (quotation omitted) (emphasis added).

We affirm all other issues on appeal.

Affirmed.


author: SCALES, J.

text:
    Pedro SOTO, et al., Petitioners, v. The STATE of Florida, Respondent.
    Nos. 3D17-570 & 3D17-569
    District Court of Appeal of Florida, Third District.
    Opinion filed March 23, 2017.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for petitioners.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for respondent.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   SCALES, J.

We consolidate these petitions for writ of prohibition and deny both petitions based on this Court’s decision in State vs. McCoy, 369 So.2d 1027 (Fla. 3d DCA 1979) and the decision of our sister court in State vs. Frazee, 617 So.2d 350 (Fla. 4th DCA 1993).

We note that petitioners rely heavily on the dicta in Obanion vs. State, 496 So.2d 977, 981 (Fla. 3d DCA 1986), for the proposition that petitioners were continuously available for trial despite the fact that petitioners’ attorney was counsel for another criminal defendant whose trial was scheduled to begin at the same time, and before the same judge, as petitioners’ scheduled trial. Under the circumstances of this case, however, McCoy is controlling. In Obanion, the continuance had been determined by the court before defense counsel became involved in the probation violation hearing. Therefore, in Obanion, the discussion regarding counsel’s availability—due to the probation violation hearing—was not necessary to the decision of the Court. Unlike in this case, counsel in Obanion was not otherwise unavailable at the time that the continuance was announced by the trial court. See Fla. R. Crim. P. 3.191(j)(2).

Petitions consolidated and denied.


text:
    Morgan Amanda LEPPERT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2238
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 27, 2017

      Valarie Linnen, Atlantic Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Morgan Amanda Leppert appeals her judgment and sentence for first-degree murder, burglary with assault or battery, and robbery with a deadly weapon. Lep-pert raises four issues: 1) her lengthy sentence violates the Eighth Amendment prohibition against cruel and unusual punishment laid out in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); 2) the trial court erred in not having a jury determine whether she killed, intended to kill, or attempted to kill the victim; 3) the trial court erred in finding that she killed, intended to kill, or attempted to kill the victim; and 4) Lep-pert’s fifty-year sentences for the burglary and robbery charges violate the Eighth Amendment because they are de facto life sentences that fail to provide her with a meaningful opportunity for release and rehabilitation. We affirm on these issues.

As to the second issue, the trial court made the requisite finding required by section 775.082, Florida Statutes (2016), that Leppert killed, intended to kill, or attempted to kill the victim. Leppert contends that the jury was required to make this finding under the statute. In a strikingly similar case, this court recently determined that the trial court did not err in making such a finding. Williams v. State, 211 So.3d 1070, 2017 WL 539773 (Fla. 5th DGA Feb. 10, 2017) (“Our supreme court has expressly authorized a trial court to make the factual determination as to whether a defendant actually killed, attempted to kill, or intended to kill a victim.” (citing Falcon v. State, 162 So.3d 954, 963 (Fla. 2015))).

Lastly, we note that the trial court provided in Leppert’s sentence that she was eligible for a judicial review hearing after twenty-five years for all three charges. Pursuant to section 921.1402(2)(d), Florida Statutes (2016), Leppert was entitled to a review of her robbery and burglary convictions after twenty years. § 921.1402(2)(d), Fla. Stat. (2016). We accordingly reverse that part of the sentencing order and remand this case for entry of an amended sentencing order consistent with this opinion.

As we did in Williams, we certify the following question to the Florida Supreme Court as one of great public importance:

DOES ALLEYNE V. UNITED STATES, — U.S.-, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), REQUIRE THE JURY AND NOT THE TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER SECTION 775.082(1)(b), FLORIDA STATUTES (2016), AS TO WHETHER A JUVENILE OFFENDER ACTUALLY KILLED, INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

AFFIRMED in part; REVERSED in part; REMANDED; QUESTION CERTIFIED.

SAWAYA, BERGER and WALLIS, JJ., concur.


text:
    TOWER HILL SELECT INSURANCE COMPANY, Appellant, v. Philip HUBER, Appellee.
    No. 3D16-963
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017.
    Traub Lieberman Straus & Shrewsber-ry, LLP, and Scot E. Samis (St. Peters-burg), for appellant.
    Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander, and Brian C. Tackenberg; Berger Singerman, LLP, and Michael J. Higer, for appellee.
    Before LAGOA, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Sebo v. American Home Assurance Co., Inc., 208 So.3d 694 (Fla. 2016); Health First, Inc. v. Cataldo, 92 So.3d 859, 865-67 (Fla. 5th DCA 2012); Wallach v. Rosenberg, 527 So.2d 1386, 1389 (Fla. 3d DCA 1988).