author: SILBERMAN, Judge.

text:
    Rod KHLEIF, Appellant, v. BANKERS TRUST COMPANY OF CALIFORNIA N.A. as Trustee ON BEHALF OF the CERTIFICATE-HOLDERS VENDEE MORTGAGE TRUST 2001-1, United States Veteran Affairs Guaranteed Remic Pass-Through Certificates; David Sanderson; David Sanderson, LLC; Charlotte County; United States of America, Acting on behalf of the Secretary of Housing and Urban Development, Appellees.
    Case No. 2D15-4853
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017.
    Eric J. Chrisner of Alliance Legal Group, PL, Sarasota, for Appellant.
    Matthew L. Sehulis of Albertelli Law, Tampa, for Appellee Bankers Trust.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

Rod Khleif appeals a final judgment of foreclosure in favor of Bankers Trust Company of California, N.A. Khleif contends that the trial court should have granted his motion for involuntary dismissal made at the dose of trial. He contends Bankers Trust failed to state a cause of action and prove an agreement existed when only the short-form mortgage was attached to the amended complaint and introduced into evidence, but the master-form mortgage was not attached or introduced. Because the short-form mortgage and mortgage note were sufficient prima facie evidence of an agreement, we affirm the final judgment.

The short-form mortgage and “mortgage note” were attached to the amended complaint and entered into evidence as exhibits at trial, along with other documents. The mortgage note and short-form mortgage were entered into between David Sanderson, the prior owner of the property, and the Secretary of Veterans Affairs. The short-form mortgage references the master-form mortgage that is recorded in the public records. Khleif raised only one affirmative defense in his answer and affirmative defenses to the amended complaint, lack of standing, but he did not argue that affirmative defense at trial.

Khleif contends on appeal that a party may wait to the close of the evidence to make a motion to dismiss for failure to state a cause of action. Schopler v. Smilovits, 689 So.2d 1189, 1189 (Fla. 4th DCA 1997), which Khleif relies upon, supports that proposition, Florida Rule of Civil Procedure 1.140(b)(6) allows a motion to dismiss for failure to state a cause of action, and rule 1.140(h)(2) allows a party to make that motion at trial. Schopler, 689 So.2d at 1189. The rule does not require the motion be made before the presentation of evidence. Id. In Schopler, the appellate court determined that the defendant could wait until all the evidence had been adduced to seek dismissal on the basis that the plaintiff had failed to plead fraud with the required specificity. Id. at 1190.

In this mortgage foreclosure proceeding, one of the elements that Bankers Trust is required to establish is an agreement. See Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014) (citing Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979)). Khleif contends that Bankers Trust failed to state a cause of action and failed to establish the element of an agreement because Bankers Trust did not prove the terms of the mortgage contained in the master-form mortgage. Bankers Trust contends that the contents of the short-form mortgage are sufficient to establish prima facie evidence of an agreement.

Florida Rule of Civil Procedure 1.130(a) (2015) provides that all contracts “upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.” (Emphasis added.) Khleif has cited no case providing for dismissal at the end of trial when a short-form mortgage was attached and introduced at trial but the master-form mortgage recorded in the public records was not attached and introduced. In Hughes v. Home Savings of America, F.S.B., 675 So.2d 649, 650 (Fla. 2d DCA 1996), this court determined that a trial court should have granted a motion to dismiss when the exhibits, a note and mortgage, were not attached to the amended complaint. This court stated that “[t]he fact that such exhibits were attached to the original complaint does not breathe life into the amended complaint which was void of exhibits.” Id Unlike Hughes, in this case a mortgage and note were attached and introduced in evidence, albeit not the entire mortgage.

While the better practice is to attach to the pleading and introduce into evidence both the short and long-form mortgages, the short-form mortgage combined with the mortgage note provided prima facie evidence of an agreement. Based on the provisions of both the mortgage note and short-form mortgage, which were introduced into evidence without objection, Bankers Trust presented prima facie evidence of the terms of the agreement. Therefore, we affirm the final judgment of foreclosure.

Affirmed.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Rule 1.130 was amended effective January 1, 2017. See In re Amendments to the Fla. Rules of Civil Procedure, 199 So.3d 867, 868, 870 (Fla. 2016). The amendment does not affect our analysis. Rule 1.130(a) now states as follows:
      (a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, must be incorporated in or attached to the pleading. No documents shall be unnecessarily annexed as exhibits. The pleadings must contain no unnecessary recitals of deeds, documents, contracts, or other instruments.


source: Caselaw Access Project

author: ROBERTS, C.J.

license: Public Domain

text:
    MARION COUNTY, Polk County, and Seminole County, Appellants, v. DEPARTMENT OF JUVENILE JUSTICE, Appellee. Polk County, Appellant, v. Department of Juvenile Justice, Appellee.
    CASE NOS. 1D15-0589 1D15-590
    CASE NO. 1D15-592
    District Court of Appeal of Florida, First District.
    Opinion filed April 4, 2017.

      Matthew G. Minter, County Attorney, Ocala, for Appellant Marion County.
    Michael S. Craig, County Attorney, Bar-tow, for Appellant Polk County.
    A. Bryant Applegate, County Attorney; Lynn P. Porter-Carlton, Deputy County Attorney; and Ann E. Colby, Assistant County Attorney, Sanford, for Appellant Seminole County.
    Gregory T. Stewart, Carly J. Schrader, and Lynn M. Hoshihara of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Seminole, Polk, and Marion Counties.
    Brian Berkowitz, General Counsel; John Milla and Michael J. Wheeler, Assistant General Counsels, Tallahassee, for Department of Juvenile Justice.
   ROBERTS, C.J.

These three appellate cases are all that remain of a large consolidated appeal involving the Department of Juvenile Justice (the Department) and twenty Florida counties over the juvenile detention cost-sharing system in section 985.686, Florida Statutes. The three appellant counties, Marion, Polk, and Seminole, joined seventeen other counties in challenging the Department’s annual reconciliations of their estimated costs with the actual costs of secure juvenile detention, arguing, among other things, that the Department’s reconciliation contravened section 985.686. After legislation was passed in 2016, seventeen of the counties voluntarily dismissed their appeals. Marion, Polk, and Seminole argue they should not be compelled to dismiss their appeals because, due to their unique positions, the 2016 legislation does not affect them. We agree.

Background

Section 985.686, Florida Statutes, creates a system by which the costs of juvenile detention are shared between the counties and the State. The counties are responsible for the costs of secure juvenile detention for detention occurring prior to “final court disposition,” sometimes referred to as “pre-disposition,” and the State is responsible for all other costs of secure detention, sometimes referred to as “post-disposition.” §§ 985.686(8) & (5), Fla. Stat. Exactly where the line is drawn to delineate pre- and post-disposition has been the source of heavy litigation over the years.

Each participating county “shall” incorporate into its annual budget sufficient funds to pay its estimated share of costs based on the prior use of secure detention for juveniles who are residents of the county, as calculated by the Department. § 985.686(5), Fla. Stat. The county pays its estimated costs at the beginning of each month. Id. “Any difference between the estimated costs and actual costs shall be reconciled at the end of the state fiscal year.” Id.

The Department promulgated rules contained in Chapter 63G-1, Florida Administrative Code, to implement section 985.686. For the years involved in these appeals, the Department performed an annual reconciliation and provided each county with an annual reconciliation statement for the previous fiscal year, which “shall reflect the difference between the amount paid by the county based on the estimated utilization and the actual utilization[.]” Rule 63G-1.017(4) & (5), Fla. Admin. Code. With regard to any overpayments found in the annual reconciliation, rule 63G-1.017(6) provides that the overpaying county is to receive a forwarding credit applied to the next year’s estimated costs.

Facts

Marion, Polk, and Seminole Counties are unique in that they participated in the cost-sharing system for a period of time, but elected to opt out of the system as allowed by section 985.686(10), Florida Statutes. Marion County opted out in November 2010, Polk County in October 2011, and Seminole County in 2012. For all or part of the fiscal years at issue, these counties paid their required estimated costs. After the Department published its annual reconciliations for Fiscal Years 2009-2010, 2010-2011, and 2011-2012, the appellants joined various other counties in administrative challenges to each of the three annual reconciliations. Final hearings were scheduled in each of the cases.

The administrative challenges were abated pending a final decision in a rule challenge filed by several counties that challenged the Department’s rules in Chapter 63G-1 as inconsistent with section 985.686 and an invalid exercise of delegated legislative authority. The rule challenge resulted in a finding that the Department’s interpretation of section 985.686 was improper and that the rules in place at the time were invalid and resulted in overcharges to the counties. See Okaloosa Cty. et al. v. Dep’t of Juvenile Justice, DOAH Case No, 12-0891RX (Final Order July 17, 2012); Dep’t of Juvenile Justice v. Okaloosa Cty., 113 So.3d 1074 (Fla. 1st DCA 2013) (Okaloosa I) (affirming the DOAH final order). See also Okaloosa Cty. v. Dep’t of Juvenile Justice, 131 So.3d 818 (Fla. 1st DCA 2014).

Joint Stipulations

Following the decisions in the rule challenge, in 2013, the parties entered into Joint Stipulations of Fact and Procedure in each of the previously abated administrative proceedings relating to Fiscal Years 2009-2010, 2010-2011, and 2011-2012. In the Joint Stipulations, the Department acknowledged that the annual reconciliations were based on invalid rules and did not comply with section 985.686, resulting in the counties being overcharged for their portion of costs. The Department published recalculated overpayments for the three fiscal years, which were acknowledged by all parties to be the Department’s final annual reconciliations. The Joint Stipulations resolved all the issues, but the Department would not agree to actually apply any credits or repayments for the three fiscal years. The parties stipulated that the overpayment amounts would become part of the official record. They also stipulated that they would file the Joint Stipulations at DOAH and move for relinquishment of jurisdiction. The Department would then enter final orders incorporating the stipulation of facts and attaching a copy of the recalculations as the “Amended and Final Reconciliation for the Counties.”

Final Orders

After DOAH relinquished jurisdiction, in 2015, without any further proceedings involving the counties, the Department entered its final orders. The final orders did not adopt the facts in the Joint Stipulations. The Department stated that the recalculated overpayment amounts were “contrary to section 985.686(3) and (5) ... in that they obligate the State to pay for detention stays that are ‘prior to final court disposition.’ ” The Department found the recalculations included some days that it determined were actually pre-dispositional, and thus, not an obligation of the State. The Department then unilaterally “corrected” the overpayments for each fiscal year. The final orders stated the corrected amounts “represent the Department’s final action on the parties’ challenges[.]” The difference between the recalculated overpayments in the Joint Stipulations and the corrected overpay-ments in the final orders are as follows:

FY09-10 Stipulated (ID15-590) FY09-10 Corrected (1D15-590) FY 10-11 Stipulated (1D15-589) FY10-11 Corrected (TD15-5891 FY11-12 Stipulated C1D15-5921 FY11-12 Corrected (1D15-5921 Marion $502,656.56 $949,551.35 $164,175.28 $86,182.04 NA NA

Polk $1,759,258.57 $943,028.21 $2,476,765.89 $377,130.36 $546,175.30 $102,537.99 Seminole $1,362,557,19 $378,712,61 $1,748,435,61 $906,136.36 NA NA

Each of the final orders also included the same footnote:

No moneys were appropriated for FY 2014/2015 to credit counties. Only the Legislature has the power to provide funding for credits or refunds for past fiscal years.

Original Consolidated Appeals

Marion, Polk, and Seminole Counties joined in the original consolidated appeals, arguing that the Department was bound by the Joint Stipulations and that it had a duty under section 985.686 to reconcile the counties’ estimated costs with their actual costs. They, like the other counties, argued this reconciliation had to be more than just a paper accounting. Marion, Polk, and Seminole Counties specifically requested a reimbursement or refund of their overpay-ments as a substitute for credits because it was the only manner in which their costs could be reconciled.

2016 Legislation

In 2016 while the consolidated appeals were pending, a settlement was reached in the Legislature, and section 985.6865, Florida Statutes (2016), was enacted. See Ch. 2016-152, Laws of Florida. Section 985.6865(4) creates a new cost-sharing system that applies a prospective 50/50 split of the costs of secure detention between the State and the non-fiscally constrained counties. The 2016 legislation created a system where, in exchange for dismissing all pending litigation, the counties would effectively recoup their previous overpayments by enjoying a more county-favorable cost-sharing split in the future. Seventeen of the counties filed notices of voluntary dismissal. Marion, Polk, and Seminole did not, arguing they were not compelled to dismiss their appeals because the “remedy” in section 985.6865 would not apply to them as they were no longer a part of the cost-sharing system.

Viability of the Current Appeals

The language in section 985.6865 is clear that the legislative intent was to have the counties execute voluntary dismissals. See § 985.6865(2), Fla. Stat. (2016). The language is also clear that the new cost-sharing formula applies notwithstanding section 985.686 and applies to each county “that has taken the action fulfilling the intent of this legislation as described in subsection (2).” See § 985.6865(4), Fla. Stat. (2016). The Department concedes that the appellant counties cannot be compelled to dismiss these appeals, but argues the appeals should nonetheless be dismissed because there are no remaining justiciable issues. We disagree.

Review in this Court was premised upon section 120.68(7), Florida Statutes, which provides that agency action may be remanded or set aside where the Court finds, among other things, that the fairness of the proceedings or the correctness of the action has been impaired by a material error in procedure or the failure to follow prescribed procedure; the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or the agency’s exercise of discretion was in violation of a statutory provision. § 120.68(7)(c)-(e), Fla. Stat.

The original appeals argued that the fairness of the proceedings below was materially impaired by the Department’s failure to honor the Joint Stipulations and its unilateral determination of new and different facts, which reduced the counties’ over-payments. The appeals argued that this action by the Department violated principles of fundamental fairness and the requirements of section 120.57, Florida Stab utes. They also argued the Department’s failure to provide credit or repayments violated the Department’s duty in section 985.686 to reconcile the estimated costs with the actual costs. These issues fit squarely within the grounds for relief under section 120.68(7).

Under section 120.68(6)(a), “[t]he reviewing court’s decision may be mandatory, prohibitory, or declaratory in form, and it shall provide whatever relief is appropriate irrespective of the original form of the petition.” This Court may “[ojrder agency action required by law; order agency exercise of discretion when required by law; set aside agency action; remand the case for further agency proceedings; or decide the rights, privileges, obligations, requirements, or procedures at issue between the parties[.]” § 120.68(6)(a)l., Fla. Stat. We find the appellants have demonstrated a present practical need for a declaration as to their overpayment amounts for the relevant fiscal years. They have also demonstrated a present practical need for a declaration as to the Department’s duty to rectify those overpayments. We disagree with the Department’s assertion that the passage of the 2016 legislation and voluntary dismissal of the credit-seeking counties’ appeals eliminated any justiciable controversy here. The fact that the Department’s rules do not address the appellants’ requested repayments does not mean that the Department is relieved of its obligations under the Joint Stipulations or its duties under section 985.686.

The Department Is Bound By the Joint Stipulations

The Department concedes that the final orders should be remanded because it failed to follow the proper procedures below. See 120.68(7)(c), Fla. Stat. The appellants initiated an administrative challenge under chapter 120, Florida Statutes. These challenges contained disputed issues of material fact, and section 120.57(1) hearings were set in the cases. The appellants agreed to forgo the scheduled hearings when they entered the Joint Stipulations to resolve all disputed issues of fact and agreed that jurisdiction would be relinquished to the Department to enter final orders incorporating the stipulation of facts and attaching a copy of the recalculations as the “Amended and Final Reconciliation for the Counties.” The Department acknowledges that it was error for it to unilaterally reject the stipulations without first seeking relief or withdrawal from the stipulations in DOAH. See Dortch v. State, 137 So.3d 1173, 1176 (Fla. 1st DCA 2014) (citing Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991)).

The parties agree that a stipulation of facts is binding on the Department as well as reviewing courts. See id. See also Palm Beach Cmty. Coll. v. Dep’t of Admin., Div. of Ret., 579 So.2d 300, 302 (Fla. 4th DCA 1991) (finding error where an administrative agency based a decision on new findings of facts when the parties had agreed to a stipulated set of facts). The Department argues it cannot be bound by the stipulated facts when those facts were premised upon a misinterpretation of the law. While we generally agree that stipulations as to questions of law are not binding, the Department’s decision to unilaterally change its interpretation of the law when the parties had based their stipulation of material facts on a different interpretation of the law does not mean that the Joint Stipulations are contrary to law. The delineating line between pre- and post-disposition cost sharing has evolved over time as evidenced by the lengthy history of litigation over section 985.686. To allow the Department to unilaterally reject the stipulations of fact determining the appellants’ substantial interests in favor of a new interpretation would be patently unfair and impermissible. Cf. Dortch, 137 So.3d at 1176 (“A stipulation cannot be ‘impeached or swept aside’ merely by the ‘bald statement’ of a party desiring to renege.”) (quoting State ex rel. Alfred E. Destin Co. v. Heffernan, 47 So.2d 15, 17 (Fla. 1950)). Allowing the Department’s corrected overpayments in the final orders to stand would be akin to allowing the Department to improperly retroactively apply its new interpretation. Cf. Delong v. Fla. Fish & Wildlife Conservation Comm’n, 145 So.3d 123, 126 (Fla. 3d DCA 2014).

Joint Stipulations are generally favored, and “absent a showing of fraud, misrepresentation or mistake, stipulations are binding on the parties who enter them, including administrative agencies participating in administrative proceedings and the courts.” Seminole Elec. Co-op, Inc. v. Dep’t of Envtl. Prot., 985 So.2d 615, 621 (Fla. 5th DCA 2008). The Department made no such showing of fraud, misrepresentation, or mistake here, nor can it. The parties were bound by the Joint Stipulations, and the fact that the Department subsequently changed its interpretation of the law was not a valid basis for it to unilaterally reject the Joint Stipulations and “correct” the appellants’ overpayment amounts. The final orders are reversed and remanded to the Department to enter final orders incorporating the Joint Stipulations.

The Department’s Duty Under Section 985.686

The question of whether the Department has a duty to actually repay the appellants involves an interpretation of section 985.686. In construing a statute, we strive to give effect to the Legislature’s intent. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005). “When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Id. Courts should strive to give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992).

Section 985.686(1) recognizes that the State and the counties have a “joint obligation” to cover the costs of secure juvenile detention. Under the statute, a county must pay the costs of providing secure detention care for pre-dispositional juveniles, § 985.686(3), Fla. Stat. The Department is directed to develop an accounts payable system to allocate costs that are payable by the counties. § 985.686(3), Fla. Stat. A county bears the responsibility to incorporate into its annual budget sufficient funds to pay its estimated costs. § 985.686(5), Fla. Stat. Likewise, the Department has a duty to reconcile the estimated costs and actual costs. § 985.686(5), Fla. Stat. (“Any difference between the estimated costs and actual costs shall be reconciled at the end of the state fiscal year.”) (emphasis added).

As discussed above, a county prepays its costs based upon the Department’s estimate. The statute clearly provides that the Department has a duty to reconcile any difference between the estimated costs and actual costs at the end of the state fiscal year. The Department’s duty to reconcile in the statute is clear. Also clear is the statute’s directive that the counties are only responsible for “actual costs.” By recognizing an overpayment and then failing to take any steps to remedy the overpayment, the Department is not performing its duties under the statute. Such inaction renders the reconciliation process in the statute meaningless. See Forsythe, 604 So.2d at 456 (“It is a cardinal rule of statutory interpretation that courts should avoid readings that would render part of a statute meaningless.”).

This Court recently considered the Department’s duty under section 985.686 in Pinellas County v. Florida Department of Juvenile Justice, 188 So.3d 894, 896 (Fla. 1st DCA 2016). This Court found the Department’s attempt to avoid applying a forwarding credit by using the same footnote violated section 985.686(5) and former rule 63G-1.008. Id. This Court quashed the final order and remanded to the Department with instructions to apply the appropriate amount of forwarding credit. Id.

The Department argues Pinellas is not applicable here because the appellants are not seeking forwarding credits and repayments are not an appropriate remedy. While the Department is correct that neither the statute nor the rules mention repayments, Pinellas supports the counties’ argument that the Department has a duty under section 985.686(5) to provide a reconciliation between a county’s estimated costs and actual costs that constitutes more than a reconciliation on paper. It also supports their argument that the footnote in this case, which memorializes the Department’s attempt to place the burden on the counties to recoup their overpayments, is invalid.

We agree with the Department that the manner in which the Department must satisfy its duty in the instant case is not wholly clear because the Department’s implementing rule, rule 63G-1.017, only provides for a forwarding credit and does not address repayments. The fact that the Department’s rules only provide for a forwarding credit does not delete the statutory requirements that counties are only responsible for actual costs and the Department has a mandatory duty to reconcile overpayments. The Department argues that the judiciary may not direct an executive agency to spend its money in a particular way because such a direction would interfere with the agency’s discretion in spending its appropriated funds. See e.g., Office of the State Attorney for Eleventh Judicial Circuit v. Polites, 904 So.2d 527, 532 (Fla. 3d DCA 2005). We agree and reiterate that we are holding the Department to its statutory duty to reconcile the appellants’ overpayments to ensure the counties only paid their “actual costs.” Any arguments as to where the money to repay the appellants must come from is beyond the scope of this opinion. We agree with the appellants that the Department has a statutory duty to actually reconcile the appellants’ overpayment amounts as reflected in the Joint Stipulations.

REVERSED and REMANDED.

WOLF and B.L. THOMAS, JJ., CONCUR.

      . The cost-sharing system operates differently if a county is “fiscally constrained” as that term is defined in Chapter 985. None of the appellants here meet the definition of "fiscally constrained county.”

      . Only Polk County was a party to the Joint Stipulation on Fiscal Year 2011-2012, and it is the only party on appeal in case 1D15-592.

      . The Department acknowledged that Marion, Polk, and Seminole Counties were no longer part of the cost-sharing system, so credits were not an appropriate remedy for these counties.

      . The corrected amounts in the Department’s final orders do not account for credits already taken by certain counties.

      . The cost-sharing split for Fiscal Year 2016-2017 is calculated differently, but is not relevant to the issues in this appeal. See § 985.6865(4)(a), Fla. Stat. (2016).

      . "No moneys were appropriated for Fiscal Year 2014/2015 to credit counties. Some counties continue to pursue credits or refunds for past fiscal years. Only the Legislature has the power to cure such complaint.”

      . How those monies are returned to the appellants, whether it be through a proceeding under section 215.26, Florida Statutes, or another means, does not preclude the appellants’ requested “remedy” in this appeal under section 120.68. Our decision determines that the appellants were impacted by adverse agency action. It does not determine the manner in which the repayments should be made to the appellants. See Barry Cook Ford v. Ford Motor Co., 616 So.2d 512 (Fla. 1st DCA 1993).


text:
    Douglas C. EDMONDS and Archondoula N. Edmonds, Appellants, v. U.S. BANK NATIONAL ASSOCIATION; JP Morgan Chase Bank, National Association, Appellees.
    Case No. 2D15-2590
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017.

      Mark P. Stopa of Stopa Law Firm, Tampa, for Appellants.
    Ira Scot Silverstein of Ira Scot Silver-stein, PLLC, Fort Lauderdale, for Appel-lee U.S. Bank National Association.
    No appearance for Appellee JP Morgan Chase Bank, National Association.
   SILBERMAN, Judge.

After a nonjury trial, Douglas C. Ed-monds and Archondoula N. Edmonds appeal a final judgment of foreclosure entered in favor of JP Morgan Chase Bank, National Association (JP Morgan). Because the appellees failed to establish that notice of default was given as required by paragraph 22 of the mortgage, which was a condition precedent to filing suit, we reverse the final judgment and remand for the trial court to enter an order of involuntary dismissal.

The condition precedent issue is disposi-tive of this appeal. Thus, we do not address the other issues that the Edmonds raise. However, we note that the record reflects somewhat of a procedural quagmire, which is the reason we have listed both JP Morgan and U.S. Bank National Association (U.S. Bank) as appellees. See Fla. R. App. P. 9.020(g)(2).

By way of background, the original lender was Chase Bank USA, N.A. (Chase). JP Morgan filed the foreclosure complaint and attached a copy of the note indorsed in blank. Prior to trial, JP Morgan filed a motion to substitute U.S. Bank as party plaintiff. At trial, counsel appeared for U.S. Bank, and the trial court asked if an order on the motion to substitute had ever been entered. The parties asserted that an order had been entered, but U.S. Bank’s counsel could not find it in the file. Our record does not contain an order on the motion to substitute, and the trial court docket does not reflect that the trial court ever ruled on the motion. The final judgment identifies JP Morgan as the plaintiff and makes no mention of U.S. Bank. The Edmonds’ notice of appeal identifies U.S. Bank as the plaintiff (now appellee), but their initial brief identifies JP Morgan as the appellee. The style of the answer brief lists JP Morgan as the appellee, but counsel specifies that the brief is filed on behalf of U.S. Bank. For ease of reference, we refer to the appellees as the Plaintiff unless otherwise required by the context.

With this background in mind, we turn to the issue of the notice of default. Paragraph 22 of the mortgage requires, among other things, that the lender give the borrowers notice of default and an opportunity to cure the default prior to acceleration of the debt. Paragraph 15 specifies that notices to the borrowers shall be deemed to have been given when they are mailed by first class mail or when actually delivered to the borrowers' notice address. In its complaint, JP Morgan alleged that it complied with all conditions precedent. In their answer, the Edmonds denied that JP Morgan gave the required notice of the alleged default and an opportunity to cure.

At trial, Vonterro White testified as a default specialist for Fay Servicing, LLC, the servicer for U.S. Bank. He acknowledged that another company had been the prior servicer for the loan. Among the documents introduced into evidence over the Edmonds’ objection were four default letters dated January of 2014, identifying JP Morgan as the entity giving notice of default. A “welcome letter” was also introduced into evidence, reflecting that Fay Servicing became the servicer in August of 2014, several months after the date of the default letters and after JP Morgan had filed suit. The Plaintiff did not produce any return receipts, a mailing log, or any documentary evidence to show that the default letters were in fact mailed or delivered.

When questioned about one of the default letters White testified, over objection, that he knew the letter was mailed because it was addressed to the borrowers at the property address. He added that it “is the business practice to send letters on loans that are delinquent and these letters are sent every month.” However, he admitted that he had never worked for Chase or JP Morgan. At the conclusion of this testimony the defense again objected, challenging both the testimony and the admission of the default letters into evidence. Defense counsel argued that White’s testimony was as to Fay Servicing’s practices and procedures rather than Chase’s or JP Morgan’s and reiterated that White had not worked for Chase or JP Morgan. The trial court overruled the objection.

At the conclusion of the Plaintiffs case, the defense moved for an involuntary dismissal. The defense contended, among other things, that the Plaintiff failed to prove the default letters were mailed. The trial court denied the motion and entered a final judgment of foreclosure.

The Edmonds again argue, and we agree, that the Plaintiff failed to prove that it gave the required notice under the mortgage because it did not show that the default letters were mailed or actually delivered; thus, the Plaintiff failed to establish a condition precedent to suit. Although the letters were admitted into evidence, the fact that they were drafted is insufficient by itself to show that they were mailed. See Allen v. Wilmington Trust, N.A., No. 2D15-2976, slip op. at 3 (Fla. 2d DCA Mar. 24, 2017); see also Burt v. Hudson & Keyse, LLC, 138 So.3d 1193, 1195 (Fla. 5th DCA 2014) (recognizing that the plaintiff had produced a letter but had offered no proof that it was mailed). A company’s routine business practice may give rise to a rebuttable presumption of mailing, but “the witness must have personal knowledge of the company’s general practice in mailing letters.” Allen, slip op. at 4; see also § 90.406, Fla. Stat. (2014); CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) (recognizing that the witness had personal knowledge of the plaintiff company’s mailing practices).

White’s testimony reflected no knowledge of JP Morgan’s mailing procedures or practices, and he was never employed by JP Morgan, the entity that drafted the letters. Rather, he only testified as to a “normal course of business” of mailing letters in general. This testimony was insufficient to prove that the letters were mailed. See Allen, slip op. at 4 (determining that testimony was insufficient to establish routine business practice of mailing letters when the witness was never employed by or had personal knowledge of the mailing practices of the predecessor servicer that drafted the letter at issue). Thus, the failure to prove that the default letters were mailed or actually delivered and that the notice under paragraph 22 was given requires that we reverse the final judgment and remand for the trial court to enter an order of involuntary dismissal. See id. at 5; Blum v. Deutsche Bank Trust Co., 159 So.3d 920, 920 (Fla. 4th DCA 2015).

Reversed and remanded with directions.

SLEET and BADALAMENTI, JJ., Concur.


author: ROTHENBERG, J.

text:
    Milagros RODRIGUEZ, Appellant, v. Alberto LORENZO, Appellee.
    No. 3D16-1699
    District Court of Appeal of Florida, Third District.
    Opinion filed April 05, 2017.
    Milagros Rodriguez, in proper person.
    Corona Law Firm, P.A., and Ricardo Corona and Nina Tarafa, for appellee.
    Before ROTHENBERG, EMAS, and LUCK, JJ.
   ROTHENBERG, J.

Milagros Rodriguez (“the former wife”) appeals the final judgment dissolving her marriage to Alberto Lorenzo (“the former husband”) (collectively, “the parties”). We affirm.

On August 14, 2014, the former wife filed a petition to dissolve the parties’ four-year marriage, seeking, in part, an award of alimony and the resolution of matters pertaining to their two minor children. The parties ultimately entered into a stipulated agreement regarding child custody, visitation, and decision-making issues regarding the children, but they were unable to agree on the remaining issues, which were decided by the trial court. A final judgment of dissolution of marriage was entered on July 1, 2016.

The former wife’s appeal focuses on the trial court’s denial of her request for alimony. However, the former wife additionally seeks from this Court an award for “psychological damage” and others similarly claimed damages related to events occurring after the entry of the final judgment and the filing of the notice of appeal. She also requests that this Court review rulings made by the trial court subsequent to the filing of her notice of appeal and, therefore, unrelated to the final judgment.

The former wife requested an award of permanent periodic alimony or, in the alternative, bridge the gap, durational, rehabilitative, or lump sum alimony. When considering whether to award permanent periodic alimony in a dissolution of marriage proceeding involving a short-term marriage, there exists a rebuttable presumption against making such an award. See Greenwald v. Rivkind-Greenwald, 31 So.3d 250, 251 (Fla. 3d DCA 2010). The parties were married for four years when the dissolution of marriage petition was filed, and for six years when the judgment granting dissolution was rendered. Thus, the parties’ marriage was a short-term marriage. Because the standard of review is abuse of discretion, see Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980), and the former wife has not provided this Court with a transcript of the relevant proceedings, the former wife has neither rebutted the presumption against permanent periodic alimony nor shown an abuse of the trial court’s discretion. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla. 1979) (holding that the trial court’s ruling is presumed correct, and where no transcript is provided, the appellate court generally cannot determine whether the evidence supports the trial court’s rulings). The absence of a transcript also precludes review of the remaining forms of alimony initially requested by the former wife.

As to the “psychological damages” the former wife seeks from this Court based on acts allegedly committed after the entry of the final judgment and the other post-judgment rulings made by the trial court that are unrelated to the final judgment of dissolution, this Court clearly lacks jurisdiction. See Geraci v. Kozloski, 377 So.2d 811 (Fla. 4th DCA 1979).

Affirmed.


author: PER CURIAM.

text:
    Darrell Keith WILSON, Sr., Appellant, v. Paul M. KADE, individually, and d/b/a The Law Offices of Paul M. Kade, Appellees.
    No. 3D16-937
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017

      Darrell Keith Wilson, Sr., in proper person.
    Shendell & Pollock, Dirán V. Seropian, Kenneth Pollock and Jonah D. Kaplan (Boca Raton), for appellees.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

Upon our de novo review, Jackson v. Shakespeare Foundation, Inc., 108 So.3d 587 (Fla. 2013), we affirm the trial court’s order dismissing with prejudice Darrell Keith Wilson, Sr.’s fourth amended third-party complaint against appellee Paul Kade. The trial court concluded, and we agree, that each of the claims asserted therein—even assuming that they stated a cause of action—constituted compulsory counterclaims to a prior action brought by Kade against Wilson. See Fla. R. Civ. P. 1.170(a) (providing: “A pleading must state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction”); B & V Ltd, v. All Dade Gen. Constr., Inc., 662 So.2d 413, 415 (Fla. 3d DCA 1995) (holding that under the logical relationship test, a compulsory counterclaim exists “when the same aggregate of operative facts serves as the basis of both claims.” (quoting Neil v. South Fla. Auto Painters, Inc., 397 So.2d 1160, 1164 (Fla. 3d DCA 1981))). In addition, we agree with the trial court that Kade’s prior action against Wilson had already proceeded to final judgment in 2007 and that Wilson’s failure to plead the compulsory counterclaims in that prior action resulted in a waiver of those claims. See Londono v. Turkey Creek, Inc., 609 So.2d 14, 19 (Fla. 1992) (holding that the failure to raise a compulsory counterclaim in the first suit will result in a waiver of that claim); Bracha Holding, Inc. v. U.S. Small Bus. Admin., 800 So.2d 657 (Fla. 3d DCA 2001).

Affirmed.

      . The trial court also concluded that none of Wilson’s purported claims set forth a viable cause of action, and that any further attempt to amend the pleading would have been futile. See Grove Isle Ass'n v. Grove Isle Assocs,, LLP, 137 So.3d 1081 (Fla. 3d DCA 2014). Wilson had five opportunities to plead a legally sufficient cause of action, and we find the trial court did not abuse its discretion in denying further leave to do so. Coral Gables Distrib., Inc. v. Milich, 992 So.2d 302, 303 (Fla. 3d DCA 2008) (observing that “as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice”) (quoting Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992)).


author: Damoorgian, J.

text:
    JPMORGAN CHASE BANK NATIONAL ASSOCIATION, Appellant, v. Alfred Jean PIERRE and Anicile Jean Pierre, Appellees.
    No. 4D16-1119
    District Court of Appeal of Florida, Fourth District.
    April 5, 2017

      Nancy M. Wallace, William P. Heller and Eric M. Levine of Akerman LLP, Tallahassee, Fort Lauderdale and West Palm Beach, for appellant.
    Kendrick Almaguer of The Ticktin Law Group, PLLC, Deerfield Beach, for appel-lees.
   Damoorgian, J.

JPMorgan Chase Bank National Association appeals the court’s entry of final judgment in favor of Alfred and Anicile Jean Pierre (“Borrowers”) following a bench trial. We reverse for entry of judgment of foreclosure in favor of JPMorgan because the judgment on appeal is contrary to the applicable law and the evidence in this case.

In November of 2013, JPMorgan filed a one count residential mortgage foreclosure suit against Borrowers, attaching a copy of the Note and Mortgage to the complaint. The Note was executed on May 18, 2005 and reflected that the original lender was Washington Mutual Bank, FA. The copy of the Note attached to the complaint also bore a blank indorsement. On the same day it filed the complaint, JPMorgan’s counsel filed a Certificate of Physical Possession of Original Note in which it certified that it was, as JPMorgan’s representative in the lawsuit, in physical possession of the original Note indorsed in blank as of October 9, 2013. This October date is significant because it is before the date the complaint was filed. JPMorgan later amended its complaint to clarify that it was “in physical possession of the Note [ijndorsed in blank” and was, therefore, the holder of the Note.

Almost three years later, the matter proceeded to a bench trial. At the trial, JPMorgan introduced Daniela Lopez as a witness. Ms. Lopez worked as a case manager for PennyMac Loan Services, LLC which serviced Borrowers’ loan on behalf of JPMorgan, and was extensively trained as to both the original lender, Washington Mutual Bank’s, and JPMorgan’s record keeping policies and procedures. Ms. Lopez testified JPMorgan acquired all of the original lender’s, Washington Mutual Bank, assets through the FDIC and upon doing so, kept all of the same record keeping policies and procedures as Washington Mutual Bank. Additionally, she testified that the loan’s servicer, PennyMac, went through a loan boarding process whereby it reviewed, vetted, and uploaded all of the existing loan documents into its imaging system. Ms. Lopez explained in detail how the process worked.

Through Ms. Lopez, JPMorgan introduced the Note and Mortgage, which were identical to those attached to the complaint, into evidence. A loan payment history was also introduced based on the boarded and verified records of all of the loan servicer(s).

In addition to the foregoing, JPMorgan also sought to introduce the breach letter sent to Borrowers by “Washington Mutual Home Loans.” Ms. Lopez explained that “Washington Mutual Home Loans” was under the umbrella of Washington Mutual Bank. She further explained that during her training, she learned that once a loan was in default, it was the regular business practice of Washington Mutual Bank to have its collections department create a default letter, print and mail out the letter to the borrower, and then upload the letter into its imaging system. She also testified that PennyMac’s boarding department verified the default letter’s accuracy and that it was actually mailed by checking with the prior servicer and/or cross-referencing the collection and servicing notes. Despite this extensive testimony, the court precluded JPMorgan from introducing the breach letter into evidence on Borrowers’ hearsay objection, ruling that JPMorgan did not submit sufficient evidence regarding the record keeping practices of “Washington Mutual Home Loans.”

During its cross-examination of the witness, Borrowers’ counsel asked when the blank indorsement was placed on the Note. Ms. Lopez responded that she did not know, but speculated that it was probably around the time the Note was transferred from Washington Mutual Bank to JPMor-gan. Ms. Lopez also testified on cross that PennyMac Corp. was the owner of the subject mortgage which was transferred via an assignment. She further testified that PennyMac Corp. was the owner of the Note.

At the close of JP Morgan’s case, both parties rested. Borrowers’ counsel argued that judgment should be entered in their favor because: 1) absent the breach letter, JPMorgan did not prove it complied with the pre-suit notice conditions outlined in the mortgage, and 2) JPMorgan did not prove it had standing to enforce the Note since its witness testified that a different entity owned the Note. JPMorgan countered that there was testimonial evidence establishing that a breach letter was sent and received, and asserted that ownership of the Note was a non-issue since it was pursuing the suit based on its status of holder of the Note indorsed in blank. The court entered judgment in favor of Borrowers, reasoning:

[JPMorgan] had issues with the Default Letter and I think there are inconsis-tences with the transfer and also with Pennymac Corp. as an owner as being another big issue.

This appeal follows.

We apply a de novo standard of review when reviewing whether a party has standing to bring an action. Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla. 4th DCA 2014). As we recently explained:

At this juncture in the development of foreclosure law, it is more than well established that a plaintiff must prove that it had standing to foreclose when the complaint was filed. A party may establish standing by showing that it was entitled to enforce the note at the time it filed suit. A person entitled to enforce’ an instrument is: (1) [t]he holder of the instrument; (2) [a] nonholder in possession of the instrument who has the rights of a holder; or (3) [a] person not in possession of the instrument who is entitled to enforce the instrument pursuant to s[ection] 673.3091 or section] 673.4181(4). A holder is [t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession. Thus, to be a holder, the instrument must be payable to the person in possession or indorsed in blank. A holder seeking to enforce a note indorsed in blank must prove that it was in physical possession of the note at the time it filed suit.

U.S. Bank Nat’l Ass’n v. Becker, 211 So.3d 142, 2017 WL 514340, (Fla. 4th DCA Feb. 17, 2017) (citations and internal quotation marks omitted).

Importantly, a holder is entitled to enforce a note even if it “is not the owner of the instrument or is in wrongful possession of the instrument.” § 673.3011, Fla. Stat. (2013).

Here, JPMorgan attached a copy of the Note bearing a blank indorsement to its complaint and presented the original Note, which was identical to the copy attached to its complaint, at trial. In doing so, JPMorgan established that it had possession of the Note indorsed in blank at the time it filed suit and, therefore, established that it had standing as holder of the Note. Becker, 211 So.3d at 144. The fact that another entity may have been the owner of the Note has no bearing on JPMorgan’s status as holder. § 673.3011, Fla. Stat. (2013). See also Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (“[U]nder the Uniform Commercial Code, a plaintiff is not required to be both the owner and holder of the note in order to have standing to foreclose”).

Appellees attempt to avoid the implications of what is now basically blackletter law by arguing that the court made a discretionary factual call which was supported by JPMorgan’s witness’ inability to testify as to when the indorsement was placed on the Note. We reject this argument. The issue of exactly when the in-dorsement was placed on the Note is irrelevant since it is undisputed that the blank indorsement was on the Note at the point JPMorgan filed its lawsuit. See Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923, 925 (Fla. 4th DCA 2016).

In sum, by attaching a copy of the Note bearing a blank indorsement to its complaint and later introducing the original Note bearing the same indorsement at trial, JPMorgan established it had standing as holder of the Note. The court’s conclusion to the contrary was clearly erroneous.

Likewise, the court’s ruling that the breach letter was inadmissible due to JPMorgan’s failure to adequately lay a foundation for its admission under the business records hearsay exception was incorrect. Pursuant to section 90.803(6)(a), Florida Statutes (2013), in order to admit business records which would otherwise constitute hearsay, “the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.” Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008). The foundation necessary for admission of a business record may be established by a records custodian or other qualified witness. § 90.803(6)(a), Fla. Stat. (2013). The witness authenticating the records “need not be the person who actually prepared the business records.” Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014) (citation and internal quotation marks omitted). Instead, “the witness just need be well enough acquainted with the activity to provide testimony.” Id.

Our recent holding in Wells Fargo Bank, N.A. v. Balkissoon, 183 So.3d 1272 (Fla. 4th DCA 2016) discussed a set of facts strikingly similar to those in the instant case. In Balkissoon, the holder of a note attempted to introduce a breach letter into evidence through its servicer’s representative. Id. at 1274. The servicer’s representative testified that the breach letter was created and sent out by a third party vendor pursuant to the servicer’s request. Id. Although the representative was not familiar with the third party vendor’s corporate structure or practices or procedures, we held that he properly laid the foundation for the admission of the letter when he “demonstrated that he was sufficiently familiar with [the servicer’s] practice and procedure for generating and sending the default notice.” Id. at 1277. Specifically, the witness;

[TJestified that the notice was made at or near the time of the events reflected therein and made by or from information transmitted by people with knowledge. Each night, [the servicer] transmitted the information for loans in default to [the third party vendor] over a secure connection. [The third party vendor] used [the servicer’s] template to create the notice within two days of receiving the loan information. [The third party vendor] did not generate any of the information in the notice. [The witness] testified that the copy of the notice was kept in the ordinary course of [the servicer’s] regularly conducted business activity and it was the regular practice of [the servicer] to make this record. Once [the third party vendor] generated the notice and mailed it, [the servicer] kept a copy of the notice in its records and made a note of the mailing date.

Id.

The testimony of JPMorgan’s witness, Ms. Lopez, is indistinguishable from the testimony provided by the records custodian in Balkissoon. Like the records custodian there, Ms. Lopez was familiar with how the original lender and servicer, Washington Mutual Bank, created, sent out, and stored default letters within its normal course of business. Specifically, she testified that once a loan was in default, it was the regular business practice of Washington Mutual Bank to have its collections department create a default letter, print and mail out the letter to the borrower, and then upload the letter into its imaging system. Additionally, the current servi-cer’s, PennyMae, boarding department verified the default letter’s accuracy and that it was actually mailed by checking with the prior servicer and/or cross-referencing the collection and servicing notes.

Despite this testimony, the court excluded the letter on the grounds that it was purportedly sent by “Washington Mutual Home Loans” and JPMorgan failed to present any evidence of the policies and procedures of Washington Mutual Home Loans. This ruling was erroneous for two reasons. First, Ms. Lopez testified that Washington Mutual Home Loans was a department within Washington Mutual Bank, FA. This in itself was sufficient to establish the hearsay exception. Second, we note that our holding in Balkissoon establishes that it was not necessary for JPMorgan to submit any evidence of Washington Mutual Home Loans' corporate structure or practices and procedures in order to lay the foundation for the letter’s admission under the business records hearsay exception. The letter was admissible under the exception so long as JPMor-gan’s witness “demonstrated that [she] was sufficiently familiar with [the then ser-vicer’s] practice and procedure for generating and sending the default notice.” Balkissoon, 183 So.3d at 1277. As JPMorgan’s witness’ testimony demonstrated her familiarity with Washington Mutual Bank’s practices and procedures for generating the breach letter, the court erred in excluding it from evidence.

Based upon the evidence presented, JPMorgan was entitled to the entry of a judgment of foreclosure against the Borrowers. Accordingly, we reverse and remand with instructions to enter judgment in favor of JPMorgan.

Reversed and remanded.

May and Conner, JJ., concur.


author: EDWARDS, J.

text:
    A.J.A., a child, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3248
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

A.J.A., a child, appeals the portion of the order of restitution that requires him to pay the victim for repairs to the victim’s car bumper, which was damaged by bullets flying through the air during an attempt by Appellant and other juveniles to rob the victim. Appellant made a timely hearsay objection when the State attempted to prove the cost of that repair based only upon a repair estimate. The victim testified that he received the estimate, but could not otherwise provide a basis for the estimate’s admissibility. The trial court erred in overruling the hearsay objection and further erred in relying upon the estimate as the only evidence upon which to base that portion of the restitution order. The State concedes error. We reverse that portion of the restitution order and remand for a new hearing on that issue.

The burden of proving the amount of restitution is on the State, and the amount must be proven by a preponderance of the evidence. See § 775.089(7), Fla. Stat. (2016); Santana v. State, 795 So.2d 1112, 1113 (Fla. 5th DCA 2001). Restitution must be proven by substantial competent evidence. J.L.C. v. State, 189 So.3d 260, 261 (Fla. 2d DCA 2016). Repair estimates have been held to be hearsay and cannot support a restitution award if an objection is lodged. See, e.g., Williams v. State, 850 So.2d 627, 627 (Fla. 2d DCA 2003) (“The trial court’s restitution award was [improperly] based on these two estimates, which were purely hearsay.”).

The case is remanded for a new restitution hearing, in which the State may be able to establish the cost of repair by presenting admissible competent substantial evidence. In all other respects, the order of restitution is affirmed. We acknowledge and appreciate the professionalism with which counsel on both sides addressed the sole issue on appeal.

AFFIRMED in part; REVERSED in part; and REMANDED for rehearing.

SAWAYA and ORFINGER, JJ., concur.

      . The victim turned the tables on the gun-toting robbers when he pulled his own pistol and began firing. No one was shot, but several nearby cars were hit by bullets.


text:
    Roger R. LAMKIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3157
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017

      Roger R. Lamkin, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, and Andrea K. Totten, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Roger Lamkin appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. After carefully considering all five claims asserted by Appellant, we affirm as to all except for claim two, which is not conclusively refuted by the records attached to the postconviction court’s order.

Appellant asserts in claim two that defense counsel provided ineffective assistance with regard to Appellant’s admitted violation of probation. Appellant alleged that his attorney advised him that the court had agreed to reinstate his probation with an additional condition that Appellant would be required to participate in mental health treatment. Appellant claims that counsel then advised him to enter an open plea to the court, which he did. There were no offers from the State. At the violation of probation hearing, the court did not advise of a specific sentence. During the sentencing hearing, the court informed Appellant that he faced a maximum of forty years in prison for all the charges, and Appellant indicated he understood and wished to make an open plea to the court. The court imposed a sentence of thirty-five years’ incarceration, instead of reinstating Appellant’s probation.

A claim that counsel misadvised about the length of a sentence is a facially sufficient claim, but it may be summarily denied if the record conclusively refutes the allegations. See State v. Leroux, 689 So.2d 235, 236 (Fla. 1996). The court’s express statements during the plea colloquy that it makes no promises as to the sentence, that it could sentence the defendant up to the statutory maximum, or that the defendant may serve every day of the sentence can refute a defendant’s claims that, under the advice of counsel, the defendant entered a plea believing he would receive a particular sentence or that he would get certain gain time. Id. at 238. However, “a [court’s] general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadviee by counsel about the length of a sentence.” Collazo v. State, 8 So.3d 1273, 1274 (Fla. 5th DCA 2009).

Although the court informed Appellant of the possible maximum sentence he could receive, the court did not mention that Appellant could face up to the maximum term of imprisonment by pleading open to the court, and there was no discussion of what sentence would actually be imposed. Because the records attached to the order of summary denial do not conclusively refute claim two, we reverse for the postcon-viction court to either attach appropriate records or conduct an evidentiary hearing on that claim of affirmative misadvice as to the sentence that would be imposed for the violation of probation.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

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


text:
    Bradley A. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-3798
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017
    Bradley A. Williams, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Bradley Williams timely petitions this court pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging ineffective assistance of his appellate counsel on direct appeal. For the following reasons, we grant the petition.

The relevant facts in this case are not in dispute. Williams entered into a plea agreement with the State to resolve his criminal case. The trial court accepted Williams’s plea and sentenced him consistently with the agreement. Williams thereafter timely filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(7), which raised in part issues with his counsel’s representation. Williams- also filed two separate Florida Rule of Criminal Procedure 3.850 motions seeking postconviction relief. The trial court summarily denied all three motions in one omnibus order, which Williams timely appealed. We affirmed the order and Williams’s judgment and sentences without opinion. Williams v. State, 158 So.3d 607 (Fla. 5th DCA 2015).

In the instant petition, Williams argues that his appellate counsel was ineffective for failing to raise the following two issues on appeal: (1) the trial court erred in summarily denying his motion for postcon-viction relief without first allowing him an opportunity to amend his motion; and (2) the trial court erred in ruling on his rule 3.850 motions for postconviction relief because it lacked “jurisdiction.” “[T]he criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel.” Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla. 1985)). To be entitled to relief, a petitioner, such as Williams, must satisfy the following two-pronged test: (1) “that appellate counsel’s performance was deficient because ‘the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance’”; and (2) “that the petitioner was prejudiced because appellate counsel’s deficiency ‘compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.’ ” Id. (quoting Thompson v. State, 759 So.2d 650, 660 (Fla. 2000)).

To explain our resolution of this case, we first briefly examine the interplay between rules 3.170(Z) and 3.850. A timely rule 3.170(£) motion to withdraw plea, as was filed here, defers or delays rendition of the judgment and sentence until the trial court files a signed, written order disposing of the motion. Wilson v. State, 128 So.3d 898, 899 (Fla. 4th DCA 2013) (citing Fla. R. App. P. 9.020(i)(1)); Haber v. State, 961 So.2d 1098, 1099 (Fla. 2d DCA 2007) (citations omitted); Smallwood v. State, 911 So.2d 849, 850 (Fla. 1st DCA 2005) (citations omitted). Rule 3.850(b) provides, in pertinent part, that “[a] motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final .... ” Fla. R. Crim. P. 3.850(b). “Implicit in the rule is the requirement that the judgment and sentence be final before the motion is filed.” Brigham v. State, 950 So.2d 1274, 1275 (Fla. 2d DCA 2007). Thus, rule 3.850 sequentially infers that once a timely rule 3.170(Z) motion is filed, it must be first ruled upon by the trial court before a rule 3.850 motion can be filed or addressed. Therefore, the earliest that a defendant may properly file a rule 3.850 motion would be thirty-one days after rendition of the judgment and sentence or, when a post-judgment motion that suspends rendition of the judgment and sentence is filed (such as a rule 3.170(í) motion to withdraw plea), thirty-one days after the trial court enters the order disposing of the postjudgment motion. See Mingo v. State, 790 So.2d 1164 (Fla. 2d DCA 2001) (stating that a judgment and sentence becomes final for purposes of the two-year period for filing a rule 3.850 motion for postcon-viction relief when the thirty-day period for filing an appeal expires).

Returning to the present case, once Williams filed his motion to withdraw plea, rendition of his judgment and sentences was suspended, and thus, they were not final. Therefore, Williams’s two rule 3.850 motions, filed prior to the court ruling on his motion to withdraw plea, were premature. Although Williams inartfully couches his argument as the court lacking jurisdiction to rule on these motions, substantively, Williams asserts that the court should not have determined his rule 3.850 motions. We agree. The circuit court should have dismissed the two rule 3.850 motions without prejudice, rather than denying them on the merits, because the judgment and sentences were not and could not have been final. See Wilson, 128 So.3d at 899; Haber, 961 So.2d at 1098; see also Camon v. State, 57 So.3d 972, 974 (Fla. 3d DCA 2011) (holding that it is improper to consider a rule 3.850 motion before the underlying judgment is final). Applying the two-pronged Strickland test, appellate counsel’s performance was deficient by not raising this issue on direct appeal, and if the issue had been raised, the result of Williams’s appeal would have been different. See Camon, 57 So.3d at 973-74 (reversing an order denying a rule 3.850 motion contemporaneously entered with a separate order denying a rule 3.170(Z) motion because the trial court prematurely considered and adjudicated the rule 3.850 motion before the judgment and sentence had become final).

Accordingly, we grant Williams’s petition, and because we conclude that a second appeal would be unnecessary and repetitive, we remand with directions that the circuit court vacate that portion of the omnibus order that denied Williams’s two rule 3.850 motions and enter an order dismissing the motions, without prejudice to Williams to file a rule 3.850 motion within two years of the issuance of the mandate in this case, if he can do so in good faith. The filing of this motion shall not be considered as successive or untimely.

PETITION GRANTED, with directions.

SAWAYA, EVANDER, and LAMBERT, JJ., concur.

      . All three motions were filed by Williams without counsel.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . The time to file a rule 3.850 motion would be further delayed if, as occurred in the underlying case, a defendant appeals the judgment and sentence after the denial of the motion to withdraw plea. See Jones v. State, 602 So.2d 606, 607-08 (Fla. 1st DCA 1992) (“[A] judgment and sentence become final for purposes of filing a motion for postconviction relief when appellate proceedings have concluded, i.e., upon issuance of the mandate.” (citations omitted)).

      . Our resolution of this issue renders moot Williams’s first argument in his petition.