author: WOLF, J.

text:
    DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellant, v. DANIA ENTERTAINMENT CENTER, LLC; Daytona Beach Kennel Club, Inc.; Jacksonville Kennel Club, Inc.; Melbourne Greyhound Park, LLC; Bonita-Fort Myers Corp.; Investment Corporation of Palm Beach; West Flagler Associates, Ltd.; Tampa Bay Downs, Inc.; and TBDG, Acquisition, LLC d/b/a TGT Poker and Racebook, Appellees.
    CASE NO. 1D16-4275
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017.

      Jason L. Maine, General Counsel, and Dwight O. Slater, Chief Appellate Counsel, Florida Department of Business & Professional Regulation, Tallahassee, for Appellant.

      John M. Lockwood, Thomas J. Morton, and Kala Kelly Shankle of The Lockwood Law Firm, Tallahassee, for Appellees Da-nia Entertainment Center, LLC; Daytona Beach Kennel Club, Inc.; Jacksonville Kennel Club, Inc.; Melbourne Greyhound Park, LLC; Bonita-Fort Myers Corp.; Investment Corporation of Palm Beach; West Flagler Associates, Ltd.; and Christopher Kise, James A. McKee, and Joshua Hawkes of Foley & Lardner, LLP, Tallahassee, for Appellees Tampa Bay Downs, Inc. and TBDG Acquisition, LLC, d/b/a TGT Poker and Racebook.
   WOLF, J.

Appellant, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, challenges an order of an Administrative Law Judge from the Division of Administrative Hearings concluding that the Division’s notice of intent to repeal Florida Rules of Administrative Procedure 61D-11.001(17) and 61D-11.002(5) was an invalid exercise of delegated legislative authority. We agree with the ALJ that the repeal had the effect of a rule. The Division has failed to challenge on appeal the ALJ’s conclusion that the rule was invalid for failure to comply with section 120.54(1), Florida Statutes, which governs the preparation and consideration of statements of estimated regulatory costs. We, therefore, affirm that portion of the order. However, we specifically reject the portion of the ALJ’s order that concluded the Division does not have the authority to repeal the rules that it previously adopted. Both sides agree that the Division has this< authority.

Facts

The ALJ made extensive factual findings that have not been disputed on appeal. Appellees are all cardrooms that are regulated by the Division. As part of this oversight, cardrooms are required to submit to the Division for approval their “internal controls,” which must include “[a] list of all authorized games offered for play and a description of the rules of play and wagering requirements for each game.” Fla. R. Admin. P. 61D-lL019(4)(i).

In 2011, the Division began authorizing internal controls for a particular type of card game called a “designated player' game.” As defined by the ALJ:

[In a] designated player game ... a designated player plays his or her hand against each other player at the table, instead of all players competing against each other. ... However, a designated player is not a cardroom operator.
In traditional “pool” poker games, each player bets into a central pool, with the winning hand(s) among all of the players collecting from the pool of bets, minus the cardroom rake.
In designated player games, each player at the table makes an individual bet, and compares their hand against the designated player’s hand. If the player’s hand is better than the designated player’s hand, then the designated player pays the player from the designated player’s stack of chips. If the designated player’s hand is better than the player’s hand, then the designated player collects the" player’s wager. At an eight-seat table, it is as though there are seven separate “player versus designated player” games.

As requests to offer these games increased, the Division initiated rulemaking in order “to establish the parameters under which designated player games would be authorized.” Over the course of the next several years, the Division conducted a series of rulemaking workshops' and received feedback from the cardrooms, which included proposed versions of the rules. The goal of both the Division and the industry was to avoid violating the statutory prohibition against offering a “banking game,” which is “a game in which the house is a participant in the game, taking on players, paying winners, and collecting from losers or in which the cardroom establishes a bank against which participants play.” § 849.086(2)(b), Fla. Stat.

Ultimately, the industry suggested a version of a rule that stated the designated player cannot be required to cover all of the potential wagers that could be made by the other players. The cardrooms explained, “Multiple jurisdictions have determined a key element to a banked card game is the house requiring all wagers be covered. We propose this language to distinguish between lawful games and impermissible banked games.”

In July 2014, three years after the rule-making process began, the Division adopted two new rules that had been proposed by the cardrooms. Rule 6lD-11.001(17) defines the term “designated player”:

“Designated player” means the player identified by the button as the, player in the dealer position.

Fla. R. Admin. P. 61D-11.001(17). Rule 61D-11.002(5) provides criteria for house rules:

(5) Card games that utilize a designated player that covers other, players’ wagers shall be governed by the cardroom operator’s house rules. The house rules shall:
(a) Establish uniform requirements to be a designated player;
(b) Ensure that'the dealer button rotates around the card table in a clockwise fashion on a hand by hand basis to provide each player desiring to be the designated player an equal opportunity to participate as the designated player; and
(c)Not require the designated player to cover all potential wagers.

Fla. R. Admin. P. 61D-11.002(5).

The Division continued to authorize designated player games through mid-2015. In October 2015, the Division published a notice of intent to repeal rules 61D-11.001(17) and 61D-11.002(5). The Division also proposed adding a new rule that would state, “Player banked games, established by the house, are prohibited.”

At a public hearing in December 2015, Division director Jonathan Zachem explained1 the purpose of the proposed changes was to conform the rules with section 849.086, which he believed “does not allow* designated player games.”

After the hearing, the Division ‘began instructing its employees not to approve internal controls for designated player games because, as one Division employee testified, the Division’s position had “turned around” on the issue of whether designated player games were permitted by the statute.

Also in December 2015, the Division filed a series of administrative complaints against cardrooms offering designated player games. Zachem conceded that a cardroom could have been.operating in full compliance with its Division-approved internal controls and still have been the subject of an administrative complaint.

Appellees filed individual petitions challenging the validity of the proposed rule changes, and those petitions were consolidated.

The notice of rulemaking stated the División did not prepare a statement of estimated regulatory costs (SERC)' because it concluded that the proposed rules would not have a financial impact in excess of $200,00Q. Appellees submitted a good-faith proposal for a lower cost regulatory alternative (LCRA). They estimated that the prohibition on designated player games would cost them more than $87,000,000 over a 5-year period. The LCRA suggested that the increased regulatory cost could be avoided by not repealing the rules and instead maintaining' the Division’s ■ longstanding interpretation, of section 849.086 as permitting designated player games. Due to the high anticipated regulatory cost, -appellees -argued that the Division was required to file a SERC.

The Division published a' notice of change to its proposed rulemaking; It withdrew its proposal to add a rule that would have 'expressly prohibited designated player games'. However, the proposed repeal of rules 61D-11.001(17) and 61D-11.002(5) remained intact,

Following a formal hearing, the ALJ concluded that the proposed repeal of rules 61D-11.001(17) and 61D-11.002(5) was an invalid exercise of delegated legislative authority. The ALJ concluded that the Division director’s statements at the public hearing “made it clear that the intent of the proposed amendments was to change the Division’s long-standing and consistently applied construction of section 849.086 as allowing designated player games to one of prohibiting designated player games.” The ALJ also found that the administrative complaints issued soon after the notice of rulemaking were “broadly worded, and reflected [the Division’s] newly developed position” that designated player games constituted a banking game in violation of section 849.086.

The ALJ made a factual finding that the Division, “specifically intended the amendments repealing the designated player standards to have the effect of prohibiting designated player games.” “The evidence te conclusive that, by its repeal of rule 61D-11.002(5), [the Division] simply changed its mind, as to whether playing with a designated player constituted the establishment of a prohibited banking game.” ,

The ALJ concluded that the repeal of the rules met the definition of “rule” because “the proposed repeal ... has the effect of implementing [the Division’s] new policy with regard to designated player games. The policy that [the Division] seeks to implement by the rule is clearly a change in the direction of the agency since it adopted the designated player rules;”

The ALJ found this rule was invalid because the Division' failed to materially follow rulemaking procedures by failing to file a -SERC in response 'to the LCRA as required by section 120.541, Florida Statutes. The ALJ also found the repeal exceeded the Division’s grant of rulemaking authority and enlarged, -modified, or contravened the specific law implemented because the Division lacked the authority to further define or establish what is an “authorized game” beyond the definition given in section 849.086. -

I. The Proposed Repeal Was a Rule

Section 120.56(1) permits “[a]ny person substantially affected by a rule or proposed rule [to] seek an administrative determination of the invalidity of the rule on the ground that the' rule is an invalid exercise of delegated legislative authority.” § 120.56(1)(a), Fla. Stat. “Rule” is defined as “each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes, the procedure or practice requirements of an agency .... The term also includes the amendment or repeal of a rule.” § 120.52(16), Fla. Stat. (emphasis added).

“To constitute ‘rulemaking’ a rule repeal is required to satisfy independently the remainder of the definition of a ‘rule’ in section 120.52(16) .... A repeal that does not have the effect of creating or implementing a new rale or policy is not a ‘rule’ subject to challenge.” Fed’n of Mobile Home Owners of Fla., Inc. v. Fla. Manufactured Hous. Ass’n, Inc., 683 So.2d 586, 590-91 (Fla. 1st DCA 1996). “ ‘Any agency statement is a rale if it ‘purports in and of itself to create certain rights and adversely affect others’....” Id. at 591 (quoting Balsam v. Fla. Dep’t of Health & Rehab. Servs., 452 So.2d 976, 977 (Fla. 1st DCA 1984)).

In Federation, this court found the repeal of a rule setting forth the procedures for amending documentation that must be submitted to the Department for approval was a rule because “the repeal of the rale improperly vests the agency with unbridled discretion over review and approval of amendments.” 683 So.2d at 591. Thus, the repeal “create[d] certain rights and adversely affectfed] others.” Id.

This court has similarly held that the repeal of a rale constituted a rule because it had the “net effect” of implementing new policies. Osterback v. Agwunobi, 873 So.2d 437, 440 (Fla. 1st DCA. 2004). In Osterback, the Department of Health (DOH) repealed a chapter in the administrative code that governed health and safety conditions within correctional facilities. Id. In response, the Department of Corrections adopted its own policies. Id. at 440. This court concluded that “DOH, by choosing to repeal [the rales], made a statement of general applicability prescribing a new policy pertaining to environmental conditions within prisons - adoption of the ... standards now employed by the DOC.” Id. at 440. “Because ... DOH has a statutory duty to regulate prison environmental health conditions, the fact that the policy replacing [the repealed regulations] was not promulgated by DOH is irrelevant. The net effect of the repeal is the implementation of a new set of rules.” Id. at 440 (emphasis added).

Here, the rales define designated player games and set criteria for house rales for designated player games. These rales would give any reasonable person the assurance that if house rules were adopted in accordance with these criteria, designated player games would be allowed. As in Federation, by proposing to repeal these rales, the Division has sought to give itself unbridled discretion to approve or deny internal controls for designated player games. As such,, the repeal adversely'affected the rights of the cardrooms.

Further, similar to Osterback, the net effect of this repeal was to implement a new internal policy. .The factual findings made by the ALJ established that the Division had been approving designated player games since 2011 and had promulgated the rules to clarify for cardrooms how they could offer designated player games without conducting banking games in violation of section 849.086. Then, the Division repealed these rules and contemporaneously stopped approving all designated player games, and it issued administrative complaints against card-rooms offering designated player games, even those who were offering them in accordance with their Division-approved internal controls. The Division director even conceded that the Division intended the repeal to implement the new policy of prohibiting all ' designated player games based on the Division’s new interpretation of section 849.086. Thus, the Division’s actions made clear that the net effect of the repeal was to implement a new policy.

The fact that the Division withdrew its proposed rule that would have expressly prohibited designated player games does not change the fact that the repeal of the existing rules had the net effect of imple menting the Division’s new policy of no longer approving designated player games. As such, we find the proposed repeal constituted a rule, and thus the Division was required to follow rulemaking procedures.

II. The Proposed Rule Was Invalid

We also -find the ALJ correctly concluded that the repeal was an invalid exercise of delegated legislative authority because the Division failed to follow rule-making procedures by failing to prepare a SERC as required by section 120.541, Florida Statutes, which is a factual finding not challenged by the Division. While an agency may change its interpretation of a statute through valid rulemaking, Cleveland Clinic Florida Hospital v. Agency for Health Care Administration, 679 So.2d 1237, 1242-43 (Fla. 1st DCA 1996), the Division failed to follow rulemaking procedures here. Thus, we affirm that portion of the ALJ’s order.

However, we decline to adopt the ALJ’s conclusion that the Division lacked the authority either to promulgate or to repeal rules pertaining to designated player games. The ALJ found that neither section 550.0251(12) nor section 849.086(4), Florida Statutes, which provide the Division with rulemaking authority, authorize the Division to “further define, prohibit, or limit activities authorized by statute,” including designated player games. The order reasoned that the Division’s “effort to restrict gameplay by the repeal of the rules, and by so doing to establish what is an ‘authorized game,’ is beyond the authority conferred under sections 550.0251(12) and 849.086(4).” Thus, the ALJ concluded that the repeal exceeded the Division’s scope of rulemaking authority, and enlarged, modified, or contravened the provisions of law implemented.

The ALJ relied on St. Petersburg Kennel Club v. Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 719 So.2d 1210, 1211 (Fla. 2d DCA 1998), in which the Second District held a rule defining “poker” in the context of sections 849.085 and 849.086 exceeded the Division’s rulemaking authority. The.court concluded that neither section 849.086 nor section 550.0251(12) “state ... that the Division shall have the authority to ipaké rules'which set forth the' definition of poker.” Id.

In that same case, a cardroom also challenged the Division’s denial of its application for approval of three card, games because the Division found the games did not meet the rule’s definition of “poker.” Id. at 1211. The Second District reversed the denial of the applications because they were based oh the invalid rule and remanded. Id. at 1212. On remand, the Division again denied approval of the games, and the Second District affirmed, reasoning that “conformity of games specified under section 849.085(2)(a) ... can be determined in a contested proceeding without consideration of the disavowed rule.” St. Petersburg Kennel Club v. Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 757 So.2d 1240, 1241 (Fla. 2d DCA 2000).

Here, the ALJ’s reliance on St. Petersburg Kennel Club, 719 So.2d 1210, was misplaced because that case is factually distinguishable. Unlike “poker,” the term “designated player game” does not denote a specific card game. Instead, “designated player” is a broad method of play; many types of poker can be played in a “designated player” manner. .The record mentions Texas. Hold’em and “Three” or “Tree” card poker as examples. The authorizing statutes permit the Division to regulate a cardroom’s behavior, which would include providing a basic framework for permissible play, like rules for designated player games.

•The ALJ’s ruling that the Division cannot provide clarity .on designated player games seems to contradict the ALJ’s ac-knowledgement that the cardrooms need clarity from the Division on this issue.,. In concluding that the repeal had the legal effect of a rule, the ALJ reasoned:

For [the Division] to suggest that its repeal of the rules is a clarification, a simplification, or a reflection of the unambiguous terms of the, statute, and that [appellees] should just tailor their actions to the statute without any interpretive guidance from [the Division], works contrary to the role of government to provide'meaningful and understandable standards for the regulation of business in Florida. [The Division] cannot, with little more than a wave and well-wishes, expect regulated businesses to expdse themselvés to liability through their actions under a statute that is open to more than one interpretation, when the agency itself has found it problematic to decipher the statute under which it exercises its regulatory authority. '

(Emphasis added).

The ALJ was correct that the role of the Division is to provide meaningful and understandable standards for cardrooms, particularly where a statute is ambiguous. Thus, it is Unclear how the ALJ ultimately concluded that the Division lacked the authority to fulfill this role here, when the Division and the cardrooms have struggled for years to interpret section 849.086-in the ■ cdntext of designated player games. Thus, we decline to adopt the ALJ’s finding that the Division’s attempt to clarify this issue exceeded its scope of rulemaking authority, or enlarged, modified, or contravened the relevant statutes.

In summation, we AFFIRM the ALJ’s order to the extent that it held the proposed repeal was a rule and that this rule was invalid due to the Division’s failure to follow rulemaking procedure, though we decline to adopt that portion of the order finding that the Division lacks the authority .to repeal the rules.

OSTERHAUS and KELSEY, JJ., CONCUR.

      . We specifically decline to address the legality of the existing rules or whether the repeal of those rules would ‘ contravene section 849.086, Florida Statutes.

        . The" AU noted there was "substantial evidence” that the reason behind this change in interpretation was "related to the renegotiation of the Seminole Compact,” although the reason was ultimately irrelevant.

      . We do not reach the question of whether St. Petersburg Kennel Club v. Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 719 So.2d 1210 (Fla. 2d DCA 1998), was correctly decided.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Edward CURRAN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5222
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017.

      Jason Cromey, Cromey Law, P.A., Pen- . sacóla, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant raises a number of challenges to the denial of his postconviction motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged ineffective assistance of counsel. We find the circuit court erred in summarily denying grounds 1, 4, 5, 6, and 9 of appellant’s postconviction motion for failure to sufficiently allege prejudice. In all other regards, we affirm the circuit court’s order.

I. Facts

Appellant was convicted of one count of lewd or lascivious molestation of a child less than 12 years of age—his step-daughter. During trial, several witnesses testified that the victim made statements to them regarding the, incident of lewd or lascivious molestation for which appellant was charged. The State also presented the testimony of the victim, who testified not only about the charged incident, but also about other acts of lewd or lascivious conduct and physical abuse' that she alleged appellant committed against her. The State also played for the jury portions of the victim’s recorded interview with the child protective team, during which she stated that appellant made threats and committed acts of violence against family pets. Additionally, defense counsel submitted evidence that appellant had- been convicted of battering his biological daughter.

In ground 1 of his postconviction motion, appellant argued defense counsel was ineffective for stipulating to the admission of testimony from 4 witnesses who testified as to the victim’s out-of-court statements because section 90.803(23), Florida Statutes (2009), states that such evidence is admissible only if the trial court conducts a hearing and concludes that the “time, content, and circumstances of the statement provide sufficient safeguards of reliability.” Appellant argued that if counsel had requested a hearing, counsel could have presented sufficient grounds to exclude the witnesses’ testimony. He further argued that he was prejudiced because these witnesses made up the majority of the State’s case; thus, if their testimony had been excluded, the jury would have been left with the competing .accounts of appellant and the victim, whom he alleged had falsified her accusations against him and whose credibility he attempted to challenge during trial.

In ground 4, appellant argued counsel was ineffective for failing to object to testimony regarding the uncharged lewd or lascivious acts, which he alleged were irrelevant and highly prejudicial. He asserted the allegations, which included that he urinated on the child while she slept, were “some of the worst that could be imagined.” In grounds 5 and 6, he argued counsel was ineffective for failing to object to testimony regarding the allegations of physical abuse and animal abuse, and in ground 9, he argued counsel was ineffective for admitting evidence that appellant had been previously convicted of battering his biological daughter. He argued all of this evidence was irrelevant and highly prejudicial because it bolstered the victim’s claim that she had waited a year to come forward because she was afraid that appellant would hurt her.

The circuit court summarily denied all of these claims by finding that appellant failed to sufficiently allege prejudice.

II. Analysis

As set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “[t]o state a facially sufficient claim of ineffective assistance of counsel, the convicted movant must have alleged deficient performance on the part of trial counsel and prejudice resulting from that deficient performance.” Morrison v. State, 860 So.2d 458, 460 (Fla. 1st DCA 2003). “To establish prejudice, the appellant must show that there was a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. (quoting Cherry v. State, 781 So.2d 1040, 1048 (Fla. 2000)). “A mere conclusory allegation that the outcome would have been different is insufficient to state a claim of prejudice under Strickland; the defendant must demonstrate how, if counsel had acted otherwise, a reasonable probability exists that the outcome would have been different—that is, a probability sufficient to undermine confidence in the outcome.” Jones v. State, 998 So.2d 573, 584 (Fla. 2008).

“If the movant’s claims are facially sufficient and not conclusively refuted by the record, the cause must be remanded for the trial court to either hold an eviden-tiary hearing or to attach record portions conclusively refuting the appellant’s allegations.” Morrison, 860 So.2d at 460.

Here, we find that appellant sufficiently alleged prejudice. Regarding the child hearsay witnesses, “[t]he admission of a corroborative statement can provide powerful evidence to support credibility and reliability.” Platt v. State, 201 So.3d 775, 778-79 (Fla. 4th DCA 2016) (finding the erroneous admission of child hearsay testimony was harmful error). Here, there was no physical evidence and no eyewitness testimony. Thus, the State’s case rested heavily on the victim’s credibility. Without the corroborating testimony of the 4 witnesses, the State’s case would have essentially come down to the competing version of events testified to by the victim and appellant. Thus, we find appellant sufficiently demonstrated that if counsel had challenged the admission of this testimony, there was a reasonable probability that the outcome in the proceedings would have been different. Morrison, 860 So.2d at 460; Jones, 998 So.2d at 584.

Similarly, we find appellant sufficiently alleged that he was prejudiced by the admission of testimony regarding allegations of uncharged lewd or lascivious acts against the victim, physical violence against the victim and family pets, and the prior conviction for battery against his biological daughter. The uncharged acts of lewd or lascivious molestation were disturbing and supported the victim’s accusation of the charged instance of lewd or lascivious molestation. The uncharged acts of physical violence supported the victim’s testimony that she waited, a year to come forward because she feared that appellant would harm her, undermining appellant’s theory of defense that the victim waited a year to come forward because her allegations were fabricated. Thus, we find appellant sufficiently demonstrated that if counsel had objected to this testimony, there was a reasonable probability that the outcome in the proceedings would have been different. Morrison, 860 So.2d at 460; Jones, 998 So.2d at 584.

Accordingly, we reverse the court’s order with respect to grounds 1, 4, 5, 6, and 9, and remand with instructions for the court either to attach portions of the record conclusively refuting appellant’s entitlement to relief or to hold an evidentiary hearing. Morrison, 860 So.2d at 461-62. In all. other respects, we affirm the trial court’s order.

AFFIRMED in part; REVERSED in part; REMANDED with directions.

ROBERTS, J., CONCURS; B.L. THOMAS, C.J., CONCURS IN RESULT ONLY.


author: PER CURIAM.

text:
    Anthonique PAMPHILE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3195
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2017
    Rachael E. Bushey, of O’Brien Hatfield, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee;
   PER CURIAM.

Anthonique Pamphile appeals the denial of two motions for postconviction relief. We conclude that the trial court erred in summarily denying ground three of Pam-phile’s rule 3.850 motion, but otherwise affirm.

Following a jury trial, Pamphile was convicted of robbery with a firearm, aggra vated assault with a firearm, and third-degree grand theft. This court affirmed his convictions and sentences. Pamphile v. State, 113 So.3d 949 (Fla. 5th DCA 2013).

In ground three of his rule 3,850 motion, Pamphile alleged that his trial counsel was ineffective by failing to object to improper prosecutorial comments made during closing argument. Specifically, he alleged that the prosecutor misstated. facts regarding which perpetrator had a gun during the robbery and further misled the jury to believe that he had confessed to the crime, which he had not. Pamphile attacks the relevant portion of the closing argument, in which the prosecutor argued:

Nobody, other than Mr. Pamphile, has ever said that anyone other than him had the gun ... [the victim] said Mr. Pamphile had the gun .... [T]he gun was found on the rear floorboard where Mr. Pamphile was sitting.

Pamphile further alleged that he suffered prejudice as a result because the jury relied on the improper comments in rendering its verdict.

Ground three of Pamphile’s rule 3.850 motion was facially sufficient. Misstatements of fact during closing argument are objectionable. See Skanes v. State, 821 So.2d 1102, 1105 (Fla. 5th DCA 2002) (“[T]he misstatement of testimony during closing argument may prove to be reversible error.” (citing State v. Cutler, 785 So.2d 1288 (Fla. 5th DCA 2001))).

In summarily denying ground three, the postconviction court concluded that Pamphile had shown neither deficient performance nor prejudice, attaching transcript excerpts of witness testimony from the trial.. However, those excerpts do not conclusively refute Pamphile’s claim—indeed, they tend to support the claim. First, the attachments do not reflect that Pam-phile made a statement admitting to his presence at the robbery, Second, the excerpts include testimony from the victim that a co-defendant, not Pamphile, was.in possession of the firearm. Third, the excerpts include testimony that the gun was found on the rear floorboard where the co-defendant, not Pamphile, was sitting. On remand, the trial court shall either attach records that .conclusively, refute ground three of Pamphile’s motion or hold an evi-dentiary hearing.

AFFIRMED,' in part; REVERSED, in part; and REMANDED.

PALMER, EVANDER and BERGER, JJ., concur.


author: WALLIS, J.

text:
    Rachel WILSON and S.B., a Child, Petitioners, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    Case No. 5D17-3373
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 9, 2017
    Lindsey M. Sharp, of Lindsey M. Sharp, P.A., Indiátlantic, for Petitioners.
    Kelley Schaeffer, Children’s Legal Services, Bradenton, for Respondent. ■
   WALLIS, J.

Petitioners seek a writ of prohibition disqualifying the judge presiding over their dependency proceedings. The trial court initially denied Petitioners’ motions to recuse or disqualify the judge as legally insufficient. Respondent provides no cause for denying the petition. We find that the allegations in both motions to disqualify, which must be taken as true, would prompt a reasonable person to fear that he or she could not receive a fair and impartial hearing or trial in front of the current judge. See Shapiro v. Craig, 210 So.3d 782, 782 (Fla. 5th DCA 2017); see also Mangina v. Cornelius, 462 So.2d 602, 602 (Fla. 5th DCA 1985) (“Where the trial judge refuses to disqualify himself, prohibition is the proper remedy .... ” (citing Bundy v. Rudd, 366 So.2d 440 (Fla. 1978))). Therefore, we grant the petition.

PETITION GRANTED.

SAWAYA and EISNAUGLE, JJ., concur.


text:
    Ivan PALMA, Appellant, v. AMERICAN AIRLINES and Sedgwick CMS, Appellees.
    CASE NO. 1D16-5651
    District Court of Appeal of Florida, First District.
    Opinion filed November 15, 2017
    Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Appellant.
    Clinton C. Lyons of Moran Kidd Lyons Johnson, P.A., Orlando, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying entitlement to attorney’s fees and costs. For the reasons below, we reverse.

Claimant injured his right hand hooking up carts while working on luggage for Employer American Airlines. The Employer/Carrier (E/C) accepted the injury as compensable. When the temporary disability benefits Claimant expected did not arrive, Claimant filed a petition for benefits asking for them, as well as for penalties, interest, attorney’s fees, and costs. The petition for benefits was received by the E/C on February 21, 2014 (the day after it was filed). Three days later, the E/C filed a response alleging that those benefits had been paid. Claimant finally received checks for the benefits on April 22, 2014. In May 2014, Claimant filed a Notice of Resolution of Issues, stating that the claim for temporary disability benefits had been satisfied, but asking for reservation of jurisdiction over the claims for attorney’s fees and costs.

The disputed periods of benefits were January 8-9 and January 14-27. The adjuster testified that she issued a check for the first period on January 13 and issued the check for the second period on January 21. Both were returned as undeliverable, the first on January 29 and the second on February 4. In response, the adjuster confirmed the address and re-mailed the checks, the first on January 30 and the second on February 4. These two checks apparently went missing.

The adjuster testified that she did not know until April 14, 2014, that the two re-mailed checks had not been delivered to Claimant. The adjuster testified that she then requested a “stop pay” on. the two missing checks and that new cheeks were reissued to Claimant on April 22, 2014, to the same address. (The new checks were generated by the E/C and received by Claimant on the same day.) The adjuster added that the new checks were sent by a computer in “the same way for all checks issued” by the E/C.

Claimant argued that attorney’s fees and costs were due because the new checks, which were the only checks Claimant received for those periods of benefits, were not generated until April 22, 2014-three months after they were due and two months after the petition for benefits was received—and that the E/C should have investigated because it was put on notice of delivery problems. The JCC denied entitlement, finding the E/C timely paid the benefits. We review the ruling de novo because Claimant does not challenge the findings of fact, but argues that the JCC erred as a matter of law in considering the mailing dates of the checks Claimant never received.

E/C-paid attorney’s fees are due “when the following circumstances exist: The ‘carrier files a response, to, petition denying benefits;’ there is a ‘successful prosecution of the petition;’ and [before the benefit is provided] a period of 30 days elapses from ‘the date the carrier ... receives the petition.’” Franco v. SCI at Palmer Club at Prestancia, 989 So.2d 709, 710 (Fla. 1st DCA 2008); see generally § 440.34, Fla. Stat. (2013). Case law explains how to determine the date a benefit is provided when the benefit is transfer of monies by check to a claimant:

[Timeliness of payment of benefits is determined not by the date of which the E/C notifies a claimant’s attorney that the claim is accepted and benefits will be paid, but by “the date checks of payment are placed in the mail.” See Amerimark, Inc. v. Hutchinson, 882 So.2d 1114, 1115 (Fla. 1st DCA 2004).

Williams v. State Dep’t of Corr., 97 So.3d 923, 926 (Fla. 1st DCA 2012).

But here, the checks wént missing. The JCC applied the presumption-of mailing, which provides that “mail properly addressed,[] stamped, and mailed was received by the addressee, and proof of general office practice satisfies the requirement of showing due mailing” (emphasis added; citations omitted). Brown v. Giffen Indus., Inc., 281 So.2d 897, 900 (Fla. 1973) (on rehearing).

“Missing” checks were at issue in Pupo v. City of Hialeah, and this Court made clear that the presumption of mailing is rebuttable: “Evidence of an office’s standard mailing practices creates a rebuttable presumption that a particular item was mailed.” 91 So.3d 925 (Fla. 1st DCA 2012). In the instant case, it is not clear whether the JCC found the .presumption rebutted because even though the JCC found the benefit was timely paid, it also found that Claimant did not receive the missing checks. Moreover, the JCC used a fault-based analysis: “That the' claimant did not receive these checks is through no fault of the adjuster or carrier.” This was error .because fault does not come into play either when considering 'the presumption of mailing or when determining whether attorney’s fees have attached.

The JCC found that Claimant had not established the benefits were “secured” by Claimant’s attorney as is required for fee entitlement. See § 440.34(2), Fla. Stat. (2013). The JCC also implicitly found that Claimant was not the prevailing party on the petition for benefits as is required for cost entitlement. See § 440.34(3), Fla. Stat. (2013). But both of these findings appear to have been based on the JCC’s conclusion that the benefits were paid before the petition for benefits was filed. Because the JCC’s conclusion that the benefits were paid before the petition for benefits was filed stemmed from his use of a fault-based analysis, it must be revisited on remand. Accordingly, on remand,, the JCC must clarify the inconsistent findings, apply the proper legal-standards, and revisit both fee entitlement and cost entitlement.

' REVERSED and REMANDED for further proceedings.

WINOKUR and JAY, JJ„ CONCUR; WOLF, J., CONCURS IN RESULT.

      . The adjuster was not asked, and did not volunteer, the reason she was unaware until April 14, 2014. Additionally, according to the adjuster, a third check, for the period of January 28 to February 10, had also been returned as undeliverable, was re-mailed, and had been received and cashed by Claimant.

      . There is no dispute that all checks here were correctly addressed.


text:
    Mark ENGLISH, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2133
    District Court of Appeal of Florida, First District.
    Opinion filed November 15, 2017.
    Michael J. Titus, Assistant Conflict Counsel, Tallahassee, for Appellant..
    Pamela Jo Bondi, Attorney General, and Jason -W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Mark English challenges the trial court’s failure to conduct a. competency hearing, as well as his battery convictions under double jeopardy principles. Concerning the battery convictions, the batteries were predicated on distinct acts and occurred during different criminal' episodes. As there is no double jeopardy violation, we affirm as to this issue.

Concerning the failure to conduct a competency hearing, the trial court entered an order, which stated that the court had “reasonable grounds to believe that the Defendant 'may be incompetent to proceed,” appointed an expert' for a competency evaluation, and scheduled a hearing on the issue. However, no competency hearing occurred on that date, and the court did not issue an order determining the defendant competent to proceed to trial. After & trial, Appellant was convicted and sentenced.

The State concedes error, if there were reasonable grounds to conduct a hearing. Here, there were reasonable grounds. Reynolds v. State, 177 So.3d 296, 298 (Fla. 1st DCA 2015) (where “the trial court apparently had reasonable grounds to believe that Appellant was not competent to proceed because the court appointed an expert to evaluate Appellant”). “[I]f a ‘reasonable ground to believe that the defendant is not mentally competent to proceed’ exists, then the requirement that the court hold a hearing is mandatory.” Trueblood v. State, 193 So.3d 1060, 1061 (Fla. 1st DCA 2016). Accordingly, the trial court erred.

On remand, the trial court shall conduct a nunc pro tunc evaluation of the defendant’s competency at the time of the original trial; if unable, a new trial is required. Dougherty v. State, 149 So.3d 672, 679 (Fla. 2014) (stating that a new trial is unnecessary where a retroactive determination of competency is possible); see also Brooks v. State, 180 So.3d 1094, 1095 (Fla. 1st DCA 2015) (“If the trial court fails to hold a competently hearing or enter a written order of competency, reversal is required; however, a new trial, is required only if the trial court is unable to conduct a nunc pro tuna .evaluation of the defendant’s competency at the time of the original trial.”).

AFFIRMED in part; REVERSED in part; REMANDED in part with instructions.

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


author: Forst, J.

text:
    Adrian S. WILLIAMS, Appellant, v. SKYLINK JETS, INC., Appellee.
    No. 4D16-4170
    District Court of Appeal of Florida, Fourth District.
    November 15, 2017

      Robin F. Hazel and Jesmany Jomarron of Jomarron Lopez, Miami, for appellant.
    Bruce D. Green of Bruce D. Green, P.A., Fort Lauderdale, for appellee.
   Forst, J.

Appellant Adrian S. Williams appeals an order denying his motion to vacate a default final judgment brought under Florida Rule of Civil Procedure 1.540. In addition to challenging the trial court’s finding of default, Appellant also argues that the specific damages requested by Appellee Skyl-ink Jets, Inc. and awarded by the trial court were unliquidated and, thus, notice and the opportunity to be heard prior to entry of default final judgment was required.

As discussed below, we summarily affirm the trial court’s decision to deny Appellant’s motion to vacate the default final judgment entered against him. Further, we hold that Appellee provided a precise damages figure and, although Appellee failed to attach proof of the specific expenses incurred to arrive at the damages requested, Appellant “admitted” that this figure was accurate, converting unliquidat-ed damages into liquidated damages. Finally, we hold’the attorney’s fees and costs are unliquidated and must be determined by the trial court after notice and hearing.

Background

Appellant, an aircraft pilot, was hired by Appellee on October 2, 2014. As part of his engagement with Appellee, Appellant executed a Pilot Training Expense Agreement (“Agreement”). The Agreement required Appellant to reimburse Appellee for all expenses incurred in pilot training if Appellant terminated his employment without cause or was terminated for cause within twenty-four months of his hiring. The Agreement provided a specific explanation of what constituted “training expenses.”

On July 3, 2015, Appellant’s employment was terminated. Subsequently, Appellee notified Appellant of the $15,176.52 incurred for Appellant’s training expenses and demanded repayment pursuant to the Agreement. Due to Appellant’s failure to repay the training expenses (or offer any response to Appellee’s demand letter), Ap-pellee filed a corjiplaint for breach of contract and unjust enrichment. Appellee listed damages of $15,176.52 in the complaint. Shortly thereafter, Appellant was served with a summons, complaint, interrogatories, and request for admissions. Appellant failed to respond to any of the discovery requests.

Due to Appellant’s failure to respond to the complaint, a default was entered against him on January 7, 2016. Appellee next filed a motion for default final judgment. Appellee requested damages of $15,176.52, court costs of $547.23, interest of $1,042.29, and attorney’s fees of $2,565.00. A hearing was scheduled on Ap-pellee’s motion, and Appellant, again, failed to appear. A default final judgment was entered, and-Appellee was awarded its requested damages. Appellant finally responded, filing a motion- to vacate the default final judgment. At the hearing on his motion, the trial court found the damages to be liquidated and as such, notice was not required. Further, the trial court found that the default was properly served on Appellant.

On appeal, Appellant argues the trial court committed fundamental error by denying his motion to vacate the default final judgment where the judgment grants un-liquidated damages and Appellant was 'not given notice before entry of the default. He asserts that the mailing addresses on the certificates of service for the motion for default final judgment and the notice of hearing on the motion were incorrect. Appellant also argues that, although the trial court did not address the clerk’s default, it should also be vacated, or the case should' be remanded with instructions for the trial court to, consider his arguments for vacating the clerk’s default.

In response, Appellee argues * the trial court correctly denied Appellant’s- motion because the damages were liquidated; thus, Appellant was not entitled to notice. Nevertheless, Appellee argues that notice was given. In addition, Appellee contends that Appellant failed to demonstrate excusable neglect, meritorious defenses, and diligence.

Analysis

This Court reviews an order denying a motion to vacate a default judgment, for abuse of discretion. Mullne v. Sea-Tech Const., Inc., 84 So.3d 1247, 1248 (Fla. 4th DCA 2012). However, “[wjhether damages alleged are liquidated or unliqui-dated is a question of law subject to de novo review.” Talbot v. Rosenbaum, 142 So.3d 965, 967 (Fla. 4th DCA 2014).

In order to vacate a default final judgment, a party must demonstrate:

(1) the failure to file a responsive pleading was the result of excusable neglect; (2)’the moving party has a meritorious defense; and (3) the moving party' acted with due diligence in seeking relief from the default.

Fla. Eurocars, Inc. v. Pecorak, 110 So.3d 513, 515 (Fla. 4th DCA 2013) (quoting Wells Fargo Bank, N.A. v. Jidy, 44 So.3d 162, 164 (Fla. 3d DCA 2010)). On appeal, Appellant did not argue the necessary requirements to vacate a default final judgment, but rather solely relies on his argument that the trial court improperly awarded unliquidated damages in the final judgment. This Court will not make arguments for an appellant. See Hammond v. State, 34 So.3d 58, 59 (Fla. 4th DCA 2010) (“Claims for which an appellant has not presented any argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived.”); Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983) (“It is the duty of counsel to prepare appellate briefs so as to acquaint the Court with the. material facts, the points of law involved, and the legal arguments supporting the positions of the respective parties. [I]t is not the function of the Court to rebrief an appeal”). As such, we affirm the trial court’s decision to deny Appellant’s motion to vacate the default final judgment entered against him, without further discussion on the issue of Appellant’s liability for damages.

Pursuant to Florida Rule of Civil Procedure 1.440(c), “[i]n actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with rule 1.080.” Rule 1.440(c) requires strict compliance. Ciprian-Escapa v. City of Orlando, 172 So.3d 485, 488 (Fla. 5th DCA 2015). “Indeed, it is fundamental error to set unliquidated damages without the notice, proof, and hearing required by rule 1.440(c).” Id.

Appellee argues that the notice requirement set by Rule 1.440(c) is not applicable because the, damages at issue are liquidated. Appellant disagrees. “Liquidated damages are those damages that are determinable with exactness from the cause of action as pleaded, by an arithmetr ical-calculation or by application of definite rules of law.” Boulos v. Yung Sheng Xiamen Yong Chem. Indus. Co., 855 So.2d 665, 667 (Fla. 4th DCA 2003). “[Liquidated damages may exist in a contractual setting “when a specific sum of money has been expressly stipulated or agreed to by the parties for .recovery by either party following a breaeh of the contract by the other.’” Bodygear Activewear, Inc. v. Counter Intelligence Servs., 946 So.2d 1148, 1150 (Fla. 4th DCA 2006) (quoting Hartford Fire Ins. Co. v. Controltec, Inc., 561 So.2d 1334, 1335 (Fla. 5th DCA 1990)). On the other hand, “damages are not liquidated if a court must consider testimony or evidence ‘to ascertain facts upon which to base a value judgment.’” Id. (quoting Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 663 (Fla. 5th DCA 1983)).

As noted above, Appellee failed to attach proof (such as receipts) of the specific expenses incurred. Normally, this would be fatal to Appellee’s argument that the damages were liquidated. See Maggiano, D.O., P.A. v. Whiskey Creek Prof'l Ctr., LLC, 160 So.3d 535, 537 (Fla. 2d DCA 2015) (although the complaint alleged a specific amount of unpaid rent, “the accounting to determine the' damages in this case is somewhat involved,” and thus, testimony was required to establish the exact amount of damages due to the “conclusory” nature of the plaintiffs pleading). However, Appellant failed to respond to Appellee’s request for admissions, one of which was that “Appellee had incurred the sum of $15,176.52 in training expenses for Appellant.” Pursuant to Florida Rule of Civil Procedure 1.370(a), “[t]he matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow ....” Paragraph (b) of this Rule states that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Fla. R. Civ. P. 1.370(b). The exceptions set forth in the Rule are not applicable here, as there is no indication that Appellant ever moved to rectify his non-response to the request for admissions and Appellant’s appellate brief fails to address his “technical admission.”

Due to the aforenoted “technical admission” to damages . in the amount of $15,176.52, we can conclude, that Appellee set forth an amount of damages that “can be determined with exactness from the cause of action as pleaded.” What might otherwise have been unliquidated damages due to the lack of documentation to support “an arithmetical calculation” is converted to liquidated damages by virtue of Appellant’s “admission.”

In addition to the $15,176.52 damages, the trial court also awarded attorney’s fees and costs. These damages in a contract dispute are generally unliquidated. See Ciprian-Escapa, 172 So.3d at 490; West v. West, 534 So.2d 893, 895 (Fla. 5th DCA 1988). Thus, the trial court erred in awarding attorney’s fees and costs without conducting a trial for which Appellant was properly noticed.

Conclusion

“A judgment rendered without a trial on unliquidated damages and without notice to the defaulting, party is void as to any unliquidated damages,, but remains valid as to any liquidated, damages.” Ciprian-Escapa, 172 So.3d at 488-89. In the instant case, due to Appellant’s “technical admission” as to the amount of damages, the trial court’s award of $15,176.52 constitutes an award of liquidated damages, which is affirmable notwithstanding any argument on the part of Appellant that he did not receive notice, of the hearing at which the default final judgment was entered. Accordingly, as to liability (judgment in favor of Appellee -due to the default judgment) and the damages, the trial court properly denied Appellant’s motion to set aside the default judgment. • ■

As discussed above, the amount of attorney’s fees and costs is unliquidated. We thus hold that the trial court erred in awarding these fees and costs without conducting a trial for which Appellant was properly noticed pursuant to Rule 1.440(c). This matter must be addressed by the trial court on remand.

Affirmed in part and Reversed and Remanded in part.

Taylor and Conner, JJ., concur.

      . Due to the admission, we need not address whether the amount of damages would otherwise be ascertainable by arithmetical calculation or by application of definite, rules of law, rendering testimony necessary. We note, however, that calculation of the amount of “Pilot’s Training Expenses” in conjunction with an Agreement which provides a definition of "Training Expenses,” is distinguishable from a case where the damages require testimony as to the value, such as “damages for personal injury, disability, discomfort, pain and suffering, mental anguish, loss' of capacity for the enjoyment of life, loss of wages and earning capacity,” as well as "recovery for property damage to the Insured’s vehicle.'' Kotlyar v. Metro. Cas. Ins. Co., 192 So.3d 562, 565-66 (Fla. 4th DCA 2016) (concluding the damages were unliquidated).


author: Kuntz, J.

text:
    Rosalie WOLF, Appellant, v. Jo Ann DOLL, individually and as Successor Trustee of the Gretchen T. Reysman Revocable Living Trust Dated November 3, 2005, Appellee.
    No. 4D16-2634
    District Court of Appeal of Florida, Fourth District.
    November 15, 2017
    Paul J. Kneski of the Law Offices of Paul J. Kneski, P.A., Plantation, for appellant.
    James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen, North Palm Beach, for appellee.
   Kuntz, J.

At the heart of this case is an attempt by the decedent’s friend to recover damages. from the decedent’s neighbor, who she asserts tortiously interfered with the inheritance her Mend had left to her. However, we need not tell that story at this time. Our focus in this'’appeal is on the court’s conclusion that the Mend was barred from raising her claims due to an earlier probate proceeding.

The court concluded the friend, Rosalie Wolf, knew about the earlier probate proceeding, could .have raised her claims in that earlier proceeding and, as a result, was barred from raising the claims in collateral litigation. Based upon those conclusions, the court entered summary final judgment in favor of the neighbor, Jo Ann Doll. Now, Wolf appeals, arguing material issues of fact precluded the entry of summary judgment. We agree. The controlling statute required “formal notice” to all beneficiaries of the earlier probate proceeding, a petition for summary administration. However, the record does not indicate whether or not “formal notice” was provided to Wolf. Therefore, we reverse.

Background Facts

For purposes of this appeal, there are three relevant people involved in this, story: the decedent, whose money and assets are at issue; Wolf, who testified that the decedent was best friends with her mother, and that she and decedent saw each other several times per. month; and, Doll, who was the property manager at the condominium complex where the decedent lived. Doll testified that she. helped the decedent in various capacities including becoming a signatory on one of her accounts three years prior to her death.

In 2005, the decedent executed a Deed to Trustee, giving the decedent, as Trustee, the power and authority to manage or dispose of her condominium unit. Five years later, the decedent amended'the trust. As amended, the trust distributed title, ownership and possession of the condominium unit to Wolf. The trust also dis-tributéd all personal property not specifically transferred to Wolf.

Later, the decedent fell and fractured her hip. While hospitalized, she executed another amendment to the trust. This amendment revoked the provisions of the prior amendment that was in-Wolfs favor, and provided that the condominium and property would ⅜ be transferred to her neighbor, Doll. The decedent also executed a power of attorney, appointing Doll. Two months later, the decedent passed away.

Doll petitioned for summary administration of the decedent’s.estate. The petition indicated that Wolf was a beneficiary of the estate and the certificate of service indicated that Wolf was served with a copy of the petition. However, the certificate of service did not indicate the manner in which Wolf was served. The probate court entered an order of summary administration, transferring the decedent’s jewelry to Wolf and the. remainder of the assets to the trust. Later, pursuant to the amended terms of the decedent’s trust, the condominium unit was transferred to Doll.

Wolf, who did not participate in the summary administration, filed a civil action against Doll, alleging tortious inference with expectancy, constructive trust, declaratory relief, and conversion. After the parties participated in discovery, Doll moved for summary judgment. Doll argued in her motion that Wolf had actual knowledge of the probate proceeding and, therefore, was prohibited from collaterally attacking the order of summary administration. Wolf did not address this issue in her lengthy response, however, the issue was addressed at her deposition which had been filed with the court. And, while the court held a hearing on the motion, the issue of notice was not discussed at the hearing.

• Following the hearing, the court granted Doll summary judgment, finding Wolfs claims were procedurally barred. The court stated that “although [Wolf] was aware of the probate proceeding, she did not ■ contest the validity of the Will or Trust, as amended, in that proceeding.”

-After the court issued its written order granting Doll’s motion for summary judgment, Wolf moved for rehearing. Later, the court entered final judgment, and Wolf renewed her motion for rehearing, arguing the court had overlooked a material issue of fact; specifically, that the record was unclear as to whether or not Wolf had knowledge of the probate proceeding. The court denied rehearing and Wolf appealed.

Analysis

On appeal, Wolf argues the court improperly granted summary judgment, as a material issue of fact exists regarding whether she was on notice of the separate, and earlier, summary administration in probate.

Summary administration' in probate allows for simplified probate of estates, unless the decedent directed formal administration, when “the value of the entire estate subject to administration -in this state, less the value of property exempt from the.claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years.” § 735,201, Fla. Stat. (2013).

To initiate a summary administration proceeding,, any beneficiary or person nominated as personal representative may petition for summary administration. § 735.203(1), Fla. Stat. (2013). The statute provides that the petition must be signed and vérified by the surviving spouse, if any, and any beneficiary not receiving a full distributive share. Id. Further, for those beneficiaries not required to join the petition because they are receiving a full distributive share, the statute states “formal notice of the petition must be served on a beneficiary not joining in the petition.” Id.

Ultimately, our resolution of this appeal turns on the definition of -“formal notice.” In granting Doll’s summary judgment motion, the court determined that Wolf “was aware of the probate proceeding,” and, therefore, was precluded from proceeding in this,subsequent action for tortious interference. But, the record is unclear even as to Wolfs actual knowledge of the probate proceeding. And, missing from the record is any evidence that Wolf was provided “formal notice” of that proceeding in the manner required by the statute and rules.

The Probate Code provides that “‘formal notice’ means a form of notice that is described in and served by a method of service provided under rule 5.040(a) of the Florida Probate Rules.” § 731.201(18), Fla. Stat. (2013). Rule 5.040(a) provides for a copy of the document to be sent, together with a notice requiring the person served to serve written defenses within 20 days after service of the notice, and “notifying the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded in the pleading or motion, without further notice.” Fla. Prob. R. 5.040(a)(1).

The rule also provides that the “formal notice” is accomplished through service of process or “by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt.” Fla. Prob. R. 5.040(a)(3). Importantly, for purposes of this case,. the rule states that “proof of service shall be by verified statement of the person giving the notice; and there shall be attached to the verified statement the signed receipt or other evidence satisfactory to' the court that delivery was made to the addressee or the addressee’s agent.” Fla. Prob. R. 5.040(a)(4).

Here, the record does not indicate formal notice was sent to Wolf. There is no verified statement of service nor a signed receipt, both of which are required to effectuate “formal notice.” Instead, the record indicates that Doll filed a petition for summary administration, and the petition included a certificate of service indicating it was served on Wolf. However, the certificate of service does not indicate the method of service. Later, the court issued the “order of summary administration.” The order indicates it was sent to Wolf,.however, again, does not indicate the method of service. Wolf testified that she may have seen the probate court’s “order of summary administration,” but was uncertain as to when she saw.it. Nowhere in the record is there evidence that formal notice was sent to Wolf.

Doll also asserts that Wolf had actual knowledge of the proceeding. We recognize the practical appeal to Doll’s assertion of actual notice and in many contexts actual notice may be sufficient. However, we question whether actual notice would be sufficient in the context of notice of a probate proceeding. See, e.g., In re Ballett’s Estate, 426 So.2d 1196, 1199 (Fla. 4th DCA 1983) (“Anna R. pooh-poohs the slight difference between formal and informal notice, particularly because it is asserted that Baron had actual notice. However, the court held in In re Estate of Dalton, 206 So.2d 264 (Fla. 3d DCA 1968), that, where statutory notice had not been furnished, actual notice of the filing of a will for probate is not sufficient ... the reason being that the written notice puts the intei’ested person on notice of the time limitations for him to act.”); Nardi v. Nardi, 390 So.2d 438, 440 (Fla. 3d DCA 1980) (“A nonadherence to these requirements [of formal notice] amounts to an abandonment of the benefit,....”). Regardless, we need not decide that issue today. Whether or not Wolf had actual knowledge is unclear from the record, leaving a disputed issue of material fact as to her actual notice.

Generally, collateral proceedings to a probate action are governed by section 733.103(2), Florida Statutes (2013). Case law interpreting the statute has held that when a party has notice of probate proceedings and an opportunity to contest the probate proceedings, the party is prohibited from bringing an action for wrongful interference with a testamentary expectancy if it failed to raise its challenges. See Schilling v. Herrera, 952 So.2d 1231, 1236 (Fla. 3d DCA 2007). Specifically regarding claims of tortious interference, the Florida Supreme Court held that the law permits a claim for tortious interference of a testamentary expectancy “if the circumstances surrounding ;the tortious conduct effectively preclude adequate relief in the probate court.” DeWitt v. Duce, 408 So.2d 216, 219 (Fla. 1981).

The statute and case law require us to resolve, one, question: Whether Wolf was given.notice of the probate proceeding, If so, her collateral claims are barred. However, if Wolf was not given notice of the probate proceeding, she was effectively precluded from obtaining adequate relief in that proceeding, and her collateral claims are not barred. Therefore, whether she received notice of that proceeding is undeniably a material fact. Further, based on this record before us, the fact is undeniably disputed. As such, summary judgment was improper.

Conclusion

Based upon this record, there is a disputed issue of material fact as to whether Wolf had notice of the earlier probate proceeding. Therefore, the summary final judgment in favor of Doll must be reversed.

Reversed and remanded.

Taylor and May, JJ., concur.


author: Per Curiam.

text:
    Jessica J. CACCAVALE, Appellant, v. The TOWN OF SOUTHWEST RANCHES, Broward County Florida, a municipal corporation, Appellee.
    No. 4D17-800
    District Court of Appeal of Florida, Fourth District.
    November 15, 2017

      Mark F. Booth of Rogers, Morris & Ziegler, LLP, Fort Lauderdale, for appellant.
    Keith M. Poliakoff and Richard J. Dewitt of Arnstein & Lehr, LLP, Fort Laud-erdale, for appellee.
   Per Curiam.

Affirmed. See Pangilinan v. Broward Cty., 914 So.2d 1094 (Fla. 4th DCA 2005).

Warner, Taylor and Damoorgian, JJ., concur.


text:
    Oliver John JAUBERT a/k/a Herve Jean Pierre Jaubert, Appellant, v. Helene JAUBERT, Appellee.
    No. 4D17-956
    District Court of Appeal of Florida, Fourth District.
    November 15, 2017
    Oliver John Jaubert a/k/a Herve Jean Pierre Jaubert, West Palm Beach, pro se.
    No appearance for appellee.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

Levine, Fórst and Kuntz, JJ., concur.


text:
    T.M., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-3372
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 17, 2017
    Robert Wesley, Public Defender, Orlando, and Stephanie N. Osman, Assistant Public Defender, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the, September 25, 2017 dispositions and sentences in Case No. 2016-CJ-004393-A-0, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Daryl Wade MAYATTE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-4114
    District Court of Appeal of Florida, First District.
    Opinion filed November 20, 2017
    Daryl Wade Mayatte, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of October 9, 2017, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. The dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


text:
    Shannon Douglas ROBINSON, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW and Julie L. Jones, Secretary, Florida Department of Corrections, Appellees.
    CASE NO. 1D17-0311
    District Court of Appeal of Florida, First District.
    Opinion filed November 20, 2017
    Shannon Douglas Robinson, pro se, Appellant.
    Rebecca Kapusta, General Counsel, and Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. Because of Appellant’s repeated unsuccessful challenges to denials of postconviction relief and petitions for extraordinary relief, Appellant is cautioned that the filing of additional meritless appeals could subject him to sanctions. See State v. Spencer, 751 So.2d 47 (Fla. 1999); Ardis v. Pensacola State College, 128 So.3d 260 (Fla. 1st DCA 2013); § 944.279, Fla. Stat.

ROWE, MAKAR, and BILBREY, JJ., CONCUR.


author: PER CURIAM.'

text:
    Calvin JOPPY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4452
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017.

      Galvin Joppy, pro se, Petitioner...
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.'

DISMISSED. See Fla. R. App. P. 9.141(d)(5).

WETHERELL, RAY, and WIÑSOR, ■ JJ., CONCUR.


text:
    Ervin KENNEDY, III, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-3127
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017
    Ervin Kennedy, III, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Anderson v. State, - So.3d -, 2017 WL 3686572 (Fla. 1st DCA Aug. 28, 2017).

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


text:
    Jerome BYERS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4078
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017.
    Jerome Byers, pro se, Petitioner,.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    Otha L. ABNEY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2128
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017

      Otha L. Abney, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Amanda Stokes and Jennifer Moore, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, LEWIS, and M.K. THOMAS, ■ JJ., CONCUR.


text:
    Gregory A. GLOVER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4081
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017
    Gregory A. Glover, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

WETHERELL, RAY, and WINSOR, JJ., CONCUR.


text:
    Robert Jay ROSADO, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4248
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017
    Robert Jay Rosado, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.-
   PER CURIAM.

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

WETHERELL, RAY, and WINSOR, JJ., CONCUR.


author: PER CURIAM/

text:
    John Paul WANNAMAKER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3175
    District Court of Appeal of Florida, First District.
    Opinion filed November 21, 2017

      John- Paul Wannamaker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM/

The amended petition seeking belated appeal is denied on the merits.

.WOLF, LEWIS, and MX THOMAS, JJ., CONCUR.


text:
    MAGNOLIA FLORIDA TAX CERTIFICATES, et al., Appellants, v. ALEXA1, a Florida General Partnership, and all similarly Situated Florida General Partnerships; Magnolia TC 5, LLC; Magnolia TC 14, LLC; Magnolia TC 14 NSA, LLC; Magnolia TC 15, LLC; and Magnolia TC 15 NSA, LLC, Florida Department of Revenue; Marcus Saiz, as Miami-Dade County Tax Collector; Broward County, Florida; et al., Appellees.
    CASE NO. 1D17-3633
    District Court of Appeal of Florida, First District.
    Opinion filed November 27, 2017.
    William S. Bilenky of Manson Bolves Donaldson Varn, P.A., Tampa, for Appellants.
    No appearance for Appellee Florida Department of Revenue.
    Abigail Price-Williams, Miami-Dade County Attorney, and Ileana Cruz, Assistant County Attorney, Miami, for Appellee Marcus Saiz de la Mora, Miami-Dade Tax Collector.
    No appearance for Appellee Broward County, Florida.
   PER CURIAM.

Appellants seek review of an Order on Miami-Dade County’s Motion for Fees and Costs. The order grants a motion for attorney’s fees and costs, determining entitlement to fees and costs, but providing that the amount of fees due is to be determined at a subsequent evidentiary hearing. The order is not a final order or an otherwise appealable non-final order. See e.g. Scullin v. City of Pensacola, 667 So.2d 215, 216 (Fla. 1st DCA 1995). Accordingly, appel-lees’ motion to dismiss the appeal for lack of jurisdiction is granted, and the appeal is hereby dismissed.

Appellants’ Motion for Summary Disposition is denied as unauthorized. Fla. R. App. P. 9.315(c).

RAY, WINOKUR, and JAY, JJ, CONCUR.


text:
    DEPARTMENT OF REVENUE o/b/o Esther Taiye Lamidi, Appellant, v. Johnston E. OSAGIE, Appellee.
    CASE NO. 1D16-3584
    District Court of Appeal of Florida, First District.
    Opinion filed November 27, 2017.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Terry P. Roberts, Tallahassee, for Ap-pellee.
   PER CURIAM.

We affirm without discussion. We further strike appellee’s answer brief to the extent it seeks affirmative relief because appellee failed to file a cross-appeal. See Premier Indus. v. Mead, 595 So.2d 122 (Fla. 1st DCA 1992); A-1 Racing Specialties, Inc. v. K & S Imports of Broward Cty., Inc., 576 So.2d 421, 422 (Fla. 4th DCA 1991).

B.L. THOMAS, C.J., and JAY and M.K. THOMAS, JJ., CONCUR.


text:
    Michael Anthony BENNETT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5467
    District Court of Appeal of Florida, First District.
    Opinion filed November 30, 2017
    Andy Thomas, Public Defender, Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Michael Anthony Bennett, appeals his convictions for dealing in stolen property and grand theft and raises three issues, only one of which merits discussion and reversal. Appellant correctly argues, and the State concedes, that Appellant’s convictions violate section 812.025, Florida Statutes (2015), which prohibits dual convictions for dealing in stolen property and theft when the offenses were committed in connection with one scheme or course of conduct. See Adoye v. State, 224 So.3d 887, 887 (Fla. 1st DCA 2017) (agreeing with the appellant and the State’s concession of error that the appellant’s dual convictions for grand theft and dealing in stolen property violated double jeopardy because both offenses were committed during a single, ongoing scheme and reversing and remanding for the trial court to vacate the lesser grand theft conviction); see also Blackmon v. State, 121 So.3d 535, 548 (Fla. 2013) (noting that the stolen items at issue were sold to a scrap yard the day after the items were stolen and holding that the trial court erred in adjudicating the appellant guilty of both dealing in stolen property and theft where the offenses were committed in connection with one scheme or course of conduct); Williams v. State, 121 So.3d 524, 533 (Fla. 2013) (noting that the appellant sold a stolen video game system and games to a pawn shop the >day after the theft and concluding that the dealing in stolen property and grand theft offenses were in connection with one scheme or course of conduct); Wilson v. State, 884 So.2d 74, 77 (Fla. 2d DCA 2004) (noting that section 812.025 does not entirely foreclose the possibility of prosecution for both theft and dealing in stealing property in connection with the same stolen property, but concluding that the State .correctly conceded that the appellant could not be convicted of both offenses where he was accused of stealing and selling the property at issue on the same day and affirming the conviction for dealing in stolen property while reversing the conviction for theft).

■Accordingly, we AFFIRM Appellant’s conviction for dealing in stolen property but REVERSE his conviction for grand theft.

LEWIS, KELSEY, and M.K. THOMAS, Jj., CONCUR.'


text:
    Roger Lee STONE II, Appellant, v. Monika Lind ANDERSON, Appellee.
    Case No. 5D16-4066
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Jeffrey A. Conner, Winter Garden, for Appellant.
    F. W. Blankner, Jr., of Ali & Blankner, Orlando, for Appellee.
   PER CURIAM.

Roger Lee 'Stone II appeals the trial court’s order denying his exceptions to the Report and Recommendation of General Magistrate. We agree-that the child support amount was erroneously calculated because Stone was to receive approximately 136 overnights per year with the minor child, not 103 overnights as utilized in the child support calculations.

We conclude that the other issues raised on appeal are without merit.

AFFIRMED, in part; REVERSED, in part; and REMANDED for recalculation of child support award.

PALMER, TORPY and EVANDER, JJ., concur.


author: COHEN, C.J.

text:
    Charles M. LEVIN, Appellant, v. Sheila KLEEMAN, Appellee.
    Case No. 5D17-396
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 1, 2017
    Charles M. Levin, Orlando, pro se.
    Sheila Kleeman, Orlando, pro se.
   COHEN, C.J.

Charles Levin appeals a final summary judgment entered against him and in favor of his mother, Sheila Kleeman. The final judgment was based on Kleeman’s claim that she loaned Levin a sizeable amount of money that he failed to repay. As the trial court noted, this litigation has been lengthy, contentious, and vexatious. Resolution of this appeal requires only a limited discussion of its procedural history.

Kleeman filed an unsworn motion for summary judgment. After numerous efforts to have the motion heard, the trial court ultimately conducted a hearing and denied Kleeman’s motion. Both parties continued to file a series of motions; however, Kleeman neither corrected the deficiencies in the earlier motion nor did she file a new motion for summary judgment. The court then entered an order setting “All Pending Motions” for a status hearing on January 9,2017.

A successor judge presided at the January 9, 2017 status hearing. Although Klee-man’s motion for summary judgment had previously been denied, and Kleeman had not filed a new motion, the court entered summary judgment in Kleeman’s favor. Levin moved for rehearing and to vacate the summary judgment order. The court denied the motion for rehearing, struck the motion to vacate, and entered final judgment in favor of Kleeman.

The trial court erred in granting summary judgment when no motion for summary judgment was pending. See Fla. R. Civ. P. 1.510; see also Kelly v. Militana, 595 So.2d 113, 114 (Fla. 3d DCA 1992) (“[A] trial court may not grant a summary judgment where there is no motion pending .... ” (citing Muncey v. Star Brite Distribs., Inc., 378 So.2d 1326 (Fla. 3d DCA 1980))). Therefore, we are compelled to reverse and remand for further proceedings.

REVERSED and REMANDED.

TORPY and LAMBERT, JJ., concur.

      , Both parties appeared without counsel and routinely filed pleadings attacking each other's character. Each claimed the other had committed fraud upon the court.

      . Levin was not present at the January 9, 2017 status hearing, claiming he made a calendaring error. We note Levin’s motion to vacate was facially sufficient under Florida Rule of Civil Procedure 1.540(b). See Cedar Mountain Estates, LLC v. Loan One LLC, 4 So.3d 15, 17 (Fla. 5th DCA 2009) (holding that a facially sufficient motion to vacate alleging (1) excusable neglect; (2) a meritorious defense; and (3) due diligence generally affords the movant an evidentiary hearing on the motion).