author: WELCH,Judge.

text:
    Tami Lynn HINKLE v. STATE of Alabama
    CR-15-0615
    Court of Criminal Appeals of Alabama.
    September 9, 2016
    Rehearing Denied December 9, 2016
    Certiorari Denied February 10, 2017
    Alabama Supreme Court 1160234

      Bobby N. Click, Jr., and William C. White II, Birmingham, for appellant.-

      ■ Luther Strange; atty. gen., and' Beth Slate Poe,, asst. atty. gen., for ■ appellee.
   WELCH,Judge.

The appellant, Tami Lynn Hinkle, was indicted for . 39 counts of theft of property—3.3 counts of theft in the first degree and 6 counts of theft in the second degree, Hinkle pleaded guilty to 17 counts of theft of property in the first degree and to 3 counts of theft of property in the second degree for her theft of over $500,000, from the law firm where she was a secretary. She was sentenced to 10 years’ imprisonment for 11 counts: Counts IV, VI, VIII, X, XII, XVI, XVIII, XXIV, XXVI, XXVIII, and XXX; and to 3 years’ imprisonment for 9 counts: Counts I, XIV, XX, XXII, XXXII, XXXIV, XXXVI, XXXVIII, and XXXIX of the indictment. The circuit court also ordered that all of Hinkle’s sentences be served consecutively and that Hinkle pay $350,000 in restitution.

Initially, we note that the record does not contain any formal adjudication of guilt on the 20 charges. However, this Court has jurisdiction over Hinkle’s appeal based on the Alabama Supreme Court’s opinion in Ex parte Eason, 929 So.2d 992 (Ala.2005).

Eason contended on appeal that the appellate court did not have jurisdiction over his appeal absent a formal adjudication of guilt. Ex parte Eason addressed the meaning of “adjudication” as follows:

“Although the Alabama Rules of Criminal Procedure'do not undertake to define ‘adjudication,’ we may consider, by analogy, Rule 58(b), Ala. R. Civ. P:, which provides: ‘A judgment or order, or the minute entry thereof, need not be phrased in formal language nor bear particular words of adjudication. The judgement or order, or the minute entry thereof, will be sufficient if it .. .• indicates, an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication.’ (Emphasis supplied.)”

929 So.2d at 995.

The Alabama Supreme Court held that “[t]he trial court’s determination of guilt and the entry of the sentence adequately establishes that the trial court adjudicated Eason guilty and that the conviction and sentence were ripe for appeal.” Ex parte Eason, 929 So.2d 995-96 (emphasis added). The Court further held that, where the record as a whole discloses a determination of guilt and the entry of the sentence, there is an “implicit adjudication” of guilt.

Later, in Ex parte Walker, 152 So.3d 1247, 1252 (Ala.2014), the Alabama Supreme Court called into, question what was meant by the term, “pronouncement of a sentence,” but that Court again stated that, “[wjhen both a determination of guilt and a sentence are evident from the record, a judgment of conviction is set forth, and a defendant’s case is ripe for appeal.” Ex parte Walker, 152 So.3d at 1252. Ex parte Walker did not overrule Ex parte Eason, either explicitly or implicitly.

The Alabama Supreme Court then released Ex parte Kelley, [Ms. 1131451, November 6, 2015] — So. 3d-(Ala.2015), clarifying what was meant by “entry of sentence.” Kelley was tried by a jury for two counts of capital murder and one count of sexual torture. The jury convicted Kelley of all three counts, and at the sentencing hearing the trial court adjudicated Kelley guilty of both counts of capital murder and sentenced him to, death. The trial court did not state on the record that Kelley was found guilty of ■ sexual torture and did not sentence Kelley on the record for that offense. However, the trial court’s written sentencing order stated that Kelley was being sentenced to life in prison for his sexual-torture conviction.

Kelley argued to the Alabama Supreme Court that this Court had not had jurisdiction to affirm his sexual-torture conviction. He argued that “no judgment of conviction was entered on the sexual-torture conviction because ... the trial court did' not pronounce a sentence on that conviction.” Ex parte Kelley, — So. 3d at-. The Kelley Court rejected the State’s argument that Ex parte Eason stood for the proposition that the trial court’s failure to pronounce sentence on the sexual-torture conviction was “merely a procedural defect” that did not interfere with the appellate court’s jurisdiction. The Kelley Court stated:

“Ex parte Eason is distinguishable from the present case. In Ex parte Eason, the trial court had sentenced the defendant to five years’ imprisonment following a guilty plea, but it did not formally pronounce the defendant’s guilt or enter a judgment of guilt. 929 So.2d at 992. This Court held that the trial court’s entiy of a sentence ‘adequately established that'the trial court adjudicated [the defendant] guilty and that the conviction and sentence were ripe for appeal.’ 929,So.2d at 996. In so doing, this Court recognized the proposition that ‘a judgment by the [trial] court imposing, sentence in accordance with a guilty verdict or a guilty plea sufficiently implies- the judgment of guilt-and serves as a judgment of conviction that will support an appeal.’ 929 So.2d at 995.
“Thus, in- Ex parte Eason, this Court held that a judgment of conviction is entered when the trial court enters a sentence that is consistent with a determination of guilt, even though that determination of guilt is not explicitly set out in the record. In the présent case, however, the trial court failed to pronounce a sentence on Kelley’s' sexual-torture conviction.”

Ex parte Kelley, — So. 3d at —.

Thus, in Ex parte Kelley, the Alabama Supreme Court made clear that1 imposing a sentence required an oral pronouncement 'and, thus, that a written sentencing order, alone, would not suffice. However, that Court did not overrule its holding in Ex parte Eason allowing an implicit adjudication where the totality of the record discloses the trial court’s determination of guilt and a pronouncement of the sentence. See Ex parte Eason, 929 So.2d at 995-96.

Therefore, as in Ex parte Eason, the record here discloses the trial court’s determination of guilt and a pronouncement of sentence, and this case is ripe for appeal.

I.

Hinkle first argues that the circuit court abused its discretion in sentencing her to a total of 137 years in the state penitentiary when the sentencing guidelines recommend a sentence of between 22 to 69 months for each conviction, In support of this argument, Hinkle asserts that her sentence is much longer than other sentences for theft convictions, that her sentence prevents her from paying restitution to the victims, and that her sentence is contrary to the stated goals of the sentencing guidelines.

Here, the record shows that in January 2015 the State filed notice of its intent to seek a departure from the sentencing guidelines. In its motion, the State asserted that the departure was warranted because the following aggravating circumstances were present in Hinkle’s case:

“1. The offenses made the basis of this cause, viz; Theft I and Theft II, involved the taking of money of great monetary value, viz; monies aggregating more than $593,000.
“2. Each of the offenses charged in the indictment returned in the above-captioned was committed while [Hinkle] was on supervised probation from a conviction in the Circuit Court of Madison County, Alabama in case number CC 09-4240.
“3. The amount of money [Hinkle] stole in the aforesaid Madison County case together with incidental items of restitution aggregated more than $160,000.
“4. The victims of the thefts in the instant cause were caused serious financial hardship.
“5. One of the victims in the instant cause was over eighty (80) years of age. Another of the victims is over seventy-five (75) years of age. Still another of the victims was a widow, over the age of sixty-two years, an alien resident and, because of the theft, without means of self support.
“6. [Hinkle’s] modus operandi by which the funds alluded to in the indictment were stolen involved her gaining the trust and confidence of the victims in connection with [Hinkle’s] position as a legal secretary and thereupon breaching that trust and confidence by stealing the victims’ money.
“7; One victim, a widow over the age of sixty-two (62) years suffered a loss of approximately $183,000 as a result of [Hinkle’s] thefts.
“8. One victim, a man over eighty (80) years of age, suffered a loss of $64,000 as a result of [Hinkle’s] theft.
“9. Four victims who were heirs, to an estate being administered by [Hinkle’s] employer, one of whom was over seventy-five (75) years of age, suffered collective losses of approximately $287,000 as a result of [Hinkle’s] thefts.
“10. One victim delivered a cashier’s check in the amount of $10,000 to [Hin-kle] for transmittal to the Internal Revenue Service to satisfy income tax delinquency. [Hinkle] converted the said cashier’s check to her own uses and thereby caused the victim problems with the Internal Revenue Service.
“11. [Hinkle] stole a substantial sum of money from a husband and wife couple and thereafter converted such monies to her own uses rather that transmitting the monies as she agreed to creditors. Said fraudulent conversion resulted in further damage to them creditworthiness.
“12. Prior to the commencement of the larcenous acts averred in the indictment, [Hinkle] stole approximately $57,000 from her lawyer employers, viz: Jack D. Long and Robert E, Long, Jr. in periodic thefts commencing on to-wit: May 20, 2008 and continuing at least through January 10, 2010. Prosecution of these thefts are presumed to be-precluded as being time-barred. The said Jack D, Long is eighty-two (82)- years of age and the said Robert E. Long, Jr. is sixty-six (66) years age. The said lawyers were subjected to severe hardship as a result of [Hinkle’s] thefts.
“13. [Hinkle] procured her employment-'with attorneys, Jack D. Long and Robert E. Long, Jr., by fraudulently withholding her employment history and criminal conviction and by fraudulently misrepresenting that' she had recently located to North Alabama from Illinois and that she had received a law degree from a school in Illinois.”

(C.R. 63-65.)

According to the sentencing guidelines, the following are considered “aggravating factors” that justify an upward departure from the recommended sentence:

“The offense involved a fiduciary relationship, including a domestic relationship, which existed between the defendant and the victim.
“The victim- was particularly vulnerable due to age, infirmity, or reduced physical capacity that was known . or should have been known to the defendant.
“The defendant was incarcerated, on pretrial release, on probation or parole, or serving a community corrections sentence at the .time the crime was committed, or otherwise under sentence of law.
“The offense involved an attempted or actual taking or receipt of property of great monetary value or damage causing great monetary loss to the victim(s).
“The offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, involved multiple victims, or involved a single victim victimized more than once.
“The commission of the offense created a substantial risk to human health or safety or a danger to the environment.
“The defendant used the identity of another person withotit authorization td commit the crime.
“Any other ‘aggravating factor’ reasonably related to the purposes of sentencing.”

Presumptive and Voluntary Sentencing Standards Manual at 26.

At the sentencing hearing, the State presented an extensive Case as to why Hinkle’s sentence should be' increased. Several of Hinkle’s victims testified.

Jack Long testified that he is currently a retired lawyer and that he practiced bankruptcy law. In April 2008, he placed an advertisement for clerical help for his firm Long & Long. Hinkle applied for the job. In her resumé, he said,, she stated that she was a graduate of Loyola Law School in Chicago. She was hired, he said, based on her resumé and the interview. Hinkle wrote checks to “Jack Long” and deposited those checks in her account. Long stated that Hinkle took approximately $29,713 in that manner but that the statute of limitations had expired on her theft of that money. At the time of the hearing, he said, he was living in a government-subsidized one-bedroom apartment.

Robert Long, Jr., who is no relation to Jack Long, testified that he worked with Jack Long in 2008-2009 and that after Jack Long retired sometime in January 2010 Hinkle stayed at his office. He identified checks that Hinkle had written to “Robert Long,” to Hinkle, and others but deposited into Hinkle’s account or her husband’s business account. He said that as a result of the thefts he had to close his law practice, that he had been suspended from the practice of law, and that he had been sued for negligence by some of Hinkle’s victims for failing to adequately supervise Hinkle. At-the time of the-hearing he was working at the Boys and Girls Club of Morgan and Lawrence Counties making $8.50 per hour. Long also testified that he had prepared wills for two elderly sisters who died within days of each other. The total estate was valued at approximately $1.2 million. He said one of the, heirs telephoned him complaining that she had not gotten her money even though some of the heirs had gotten .their money. This heir complained that Hinkle had been giving her the runaround. Apparently, Long testified, there was no money to disburse the $285,000 that was .due to several of the heirs. Long also testified that a relative, Hal Moore, brought a check to his office so that he could purchase a piece of real estate for cash; however, when the time came to close on the property,' there was no money. Hal Moore testified that the check he brought' to Long’s office was payable to Robert' Long in the amount of $64,000.

Louise Harris testified that she was a friend of Hinkle’s and trusted her completely and that she had met Hinkle when Harris’s husband became the minister at Somerville Church of Christ. She testified' that Hinkle gave her advice when her husband was terminally ill. Harris said that Hinkle told her that the wills that Harris and her husband had executed in South Africa were not legal in Alabama and that they needed to execute new wills. Harris said that Hinkle prepared new wills and living wills for the-Harrises and that they both signed those wills. When her husband died in July 2011, she said, she received-$250,000 in insurance money. After this, Harris said; Hinkle told her that her husband’s estate would have to be probated and the insurance money needed to be put into a trust account pending probate. Harris said that she gave Hinkle a total of $183,000 to put into the trust account. Harris further testified that at the time of the hearing her house had been foreclosed, that she was totally financially dependent on her children, and that shé had had to stop taking her heart medication because she could not afford to pay for it.

Angela Aldridge, a special agent.with the Alabama Department of Revenue, testified that she was assigned to investigate Hinkle’s case. She examined various bank accounts related to the' case and determined that Hinkle had taken the following amounts from Robert Long’s accounts: $88,000 in 2010; $99,000 in 2012; $120,000 in 2012; and $160,000 in- 2013. Also, she said, her investigation i*evealed that Hinkle had previously filed for bankruptcy five times, that Hinkle had income-tax liens in the amount of $40,000 against her, and that Hinkle had not filed, an.Alabama income-tax return until 2015.

.The circuit court when imposing Hin-kle’s sentence stated:

“Because this sentence' is hot imposed under the sentencing standards, the following consideration and enhancements have been applied: the Court has consid.ered [Hinkle’s] one prior felony conviction, the amount of money stolen, , the harm done to a number of .victims, the fact that [Hinkle] was on supervised probation at the time of the aforesaid thefts, the fact that two victims have had their law practices adversely affected (one of whom has been disbarred) as a result of [Hinkle’s] thefts from clients, the fact that elderly victims were either left dependent on public assistance or family support and other matters set out in the State’s motion for a departure from the sentencing guidelines.”

(C.R. 195.)

In Hall v. State, [Ms. CR-13-0785, March 18, 2016] — So. 3d —, — (Ala.Crim.App.2016), we addressed a circuit court’s departure from the sentencing guidelines after Hall was convicted of distributing a controlled substance and the jury had found that the sale occurred within three miles of a school and a housing project. This Court stated:

“In Hyde v. State, 185 So.3d 501 (Ala.Crim.App.2015), this Court stated:
“ ‘Under the presumptive standards, circuit courts are given “significant discretion in arriving at sentencing decisions.” Presumptive and Voluntary Sentencing Standards Manual 14 (emphasis added). That “significant discretion” includes a circuit court’s decision to depart from either the durational or dispositional recommendation, or both. The Presumptive and Voluntary Sentencing Standards Manual, however, explains that a durational or dispositional departure “should be rare” and occur only “in exceptional cases.” Presumptive and Voluntary' Sentencing Standards Manual 24. Before a circuit court chooses to depart from a dispo-sitional or durational recommendation under the presumptive sentencing standards, however, the following procedures must be followed:
‘“ “3. Consideration of Aggravating and Mitigating Factors—The Court must consider all aggravating and/or mitigating factors proven for a sentencing event, but the decision to depart from the presumptive sentence recommendation is in the discretion of the court. U < U
“■‘“4. Burden of ■ Proof—-Aggravating Factors—The . prosecutor bears the burden of proving beyond a reasonable doubt that an aggravating factor exists. The defendant is entitled to a jury trial on the existence of any aggravating factor, un-Jess the aggravating factor is admitted by the defendant or both the defendant and the prosecutor waive a jury determination and request thq judge alone to decide. It is within the discretion of the trial court whether to bifurcate the trial and sentencing phase of a covered case.
ti 6(t
“ ‘ “6. Notice—Aggravation—The prosecutor shall give the defendant notice of .aggravating factors no less than seven (7) days ■ before trial. Once-given, notice is deemed sufficient for any future trial settings. For good cause shown, notice may be given at any tiine with the consent of the trial court, provided the defendant is given an opportunity to research and rebut, the aggravating factor. Notice can be waived.
“1 “8. Stating Reasons for Departure—The aggravating and/or mitigating factors found as reasons for any departure must be stated in the written sentencing order, even if the departure sentence is the result of a plea agreement and the parties have agreed to the existence of the aggravating and/or mitigating factors.”
“ ‘Presumptive and- Voluntary Sentencing Standards Manual 24-25 (emphasis added).’

“Hyde, 185 So. 3d at 512. Further, ‘when reviewing a circuit court’s decision to depart from either a dispositional or dura-tional recommendation under the presumptive sentencing standards, this Court will , apply an abuse-of-discretion standard of review.’ Hyde,, 185 So. 3d at 508, ‘ “A trial court abuses its discretion only when its decision is based on an erroneous conclusion of law or where the record contains no evidence on which it rationally could have based its decision.” ’ McCain v. State, 38 So.3d 642, 647 (Ala.Crim.App.2009) (quoting Holden v. State, 820 So.2d 158, 160 (Ala.Crim.App.2001)).”

Hall, — So. 3d at —. In conclusion, in affirming the departure from the sentencing standards, the Hall Court stated:

“There is nothing in the record to indicate that the trial court’s decision to depart from the presumptive sentencing standards when it sentenced Hall was based on an erroneous conclusion of law or that the record contains no evidence upon' which the court rationally could have based its decision. Likewise, there is nothing in the record to indicate that the trial court’s departure in Hall’s case violated- the general admonition in the Standards Manual that ‘[departure sentences should be- rare.’ Accordingly, Hall -has not demonstrated that the trial court abused its discretion in this case.”

— So. 3d at —.

After reviewing the record, we hold that the circuit court did not abuse its considerable discretion in departing from the sentencing guidelines and sentencing Hinkle to 10 years’ imprisonment for 11 of her theft convictions and to 3 years’ imprisonment for 9 of her theft convictions. There is no evidence indicating that the departure was “based on an erroneous conclusion of law.” Nor does the record contain any evidence that, the departure “violated the general admonition” that a departure should be rare. See Hall, supra. The circuit court did not abuse its considerable discretion in sentencing Hinkle, and she is due no relief.

II.

Hinkle next argues that the circuit court failed to state all the reasons for its departure because, she argues, the court' stated in the sentencing order that it had considered other factors set - out in the State’s motion to depart from the sentencing guidelines.

As stated above, the circuit court’s order reads:

“Because this sentence is not imposed under -the sentencing standards, the following consideration and enhancements have been applied: the Court has considered [Hinkle’s] one prior felony conviction, the amount of money stolen, the harm done to a number of victims, the fact that [Hinkle] was on supervised probation at the time of the aforesaid thefts, the fact that two victims have had their law practices adversely affected (one of whom has been disbarred) as a result of [Hinkle’s] thefts from clients, the fact that elderly victims were either left dependent on public assistance or family support and other matters set out in the State’s motion for a departure from the sentencing guidelines.”

(C.R. 195.) (Emphasis added.)

The State first asserts that this issue is not- properly preserved for appellate review because, it argues, Hinkle did not object to deficiencies in the court’s findings on the aggravating factors. We agree with the State that this issue was not preserved. See Ex parte Parks, 923 So.2d 330 (Ala.2005). Hinkle filed an extensive motion objecting to the circuit court’s sentencing order. (C. 204-07.) However, this objection was not included in that motion.

Moreover, the circuit court made findings on the aggravating factors it considered in increasing Hinkle’s- sentence. Those findings are supported by the record. The circuit court’s findings appear to be a synopsis of the factors set out by the State in its motion for a sentencing departure. Although the circuit court did reference the State’s motion, a motion contained in the record, this reference did not invalidate the court’s findings or result in a violation of the sentencing guidelines. The aggravating factors set out by the circuit court were more than sufficient to warrant an increase in Hinkle’s sentences.

For the foregoing reasons, we affirm Hinkle’s convictions and the sentences imposed by the circuit court.

AFFIRMED.

Windom, P.J., and Kellum, Burke, and Joiner, JJ,, concur.

      . The circuit court filed an' amended sentencing order on April 27, 2016, to correct the previously issued order. Although this order was issued after the time had lapsed for the continuance on the postjudgment motion, this order was issued pursuant to Rule 29, Ala. R. Crim. P., to correct the written sentence to comply with the oral pronouncement of sentence. See Sims v. State, 741 So.2d 1117 (Ala.Crim.App.1999). An order issued pursuant to Rule 29, Ala. R. Crim. P., may be issued at any time. As Rule 29, Ala. R, Crim. P., states: “Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at anytime of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”

      . Hinkle cites specific cases in support of this argument, cases that are not contained in the record on appeal. Assertions in brief, not supported by the record, are not evidence and cannot be considered by this Court. See Ex parte Ruggs, 10 So,3d 7 (Ala.2008),


source: Caselaw Access Project

author: QUINCE, J. CANADY, J.,

license: Public Domain

text:
    Leon KOPEL, Petitioner, v. Bernardo KOPEL, et al., Respondents.
    No. SC13-992
    Supreme Court of Florida.
    [January 26, 2017]

      Raoul G. Cantero, III, David P. Draigh, and Jesse Luke. Green of White & Case LLP, Miami, Florida, for Petitioner..
    Scott Jay Feder of Scott Jay Feder, P.A., Coral' Gables, Florida, for Respondents
   QUINCE, J.

Respondents Bernardo and Enrique Ko-pel seek review of the decision ofthe Third District Court of Appeal in Kopel v. Kopel, 117 So.3d 1147 (Fla. 3d DCA 2013), on the ground that it expressly and directly conflicts with a decision of this Court and other district courts of appeal on a question of law. We have jurisdiction. See Art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we quash the decision of the Third District and approve the line of-cases that follow the exact language of rule 1.190(c), allowing an amended complaint to rélate back to the filing of the original, timely filed complaint as long as any new claims within the amendment arise out of the same conduct, transaction; or occurrence as in the original filing.

FACTS AND PROCEDURAL HISTORY

This case comes to us after twenty-one years of litigation involving claims by Leon Kopel (Petitioner) against his brother, Enrique Kopel, and Enrique’s son, Bernardo Kopel (Leon’s nephew), resulting from deteriorating business relationships within the family. Kopel, 117 So.3d at 1149, In 1994, Petitioner filed this lawsuit after he was unsuccessful in demanding the repayment of $5 million from Respondents and payment of two promissory notes for $845,000 and $1.45 million from Bernardo. At the 2008 trial, Petitioner, for the first time, claimed that settlement conversations between him and Enrique were actually oral agreements whereby Enrique was to pay $5 million to Petitioner in exchange for Petitioner’s interest in certain business entities. Id. The trial resulted in a hung jury, and after a mistrial was declared, the trial court ordered the parties to amend their pleadings. Id. Petitioner’s amendments to his complaint culminated with a fifth amended complaint filed in 2009, wherein he alleged that using a $15 million loan (which he and Enrique obtained from the Royal Bank of Canada using two companies they each owned individually), Petitioner loaned $5 million to Bernardo (Count I); that Petitioner received oral promises from Respondents to repay the loan and that in exchange for Respondents paying Petitioner $5 million, Petitioner would release them from any interest or claims Petitioner had in companies the parties owned together (Count II); and that Respondents were unjustly enriched when Petitioner gave them $5 million (Count III). Id. Respondents moved to dismiss the fifth amended complaint, arguing inter alia that the “breach of oral promise” claim was time-barred by the four-year statute of limitations, but the trial court denied the motion. Id. at 1150-51. Prior to trial, Respondents moved for summary judgment on the same grounds, but the trial court also denied that motion, and the case proceeded to trial. Id.

Finding in favor of Petitioner on all three counts, the jury found that Petitioner loaned Bernardo $5 million and Bernardo orally agreed to repay $2 million, that Enrique orally agreed to pay $3 million, and that Respondents' were unjustly enriched by Petitioner for a total benefit conferred in the amount of $10 million. Id. After the verdict, Respondents filed a motion for a new trial or for judgment notwithstanding the verdict, alleging inter alia that there was no evidence to prove any of Petitioner’s claims and the jury’s verdicts were inconsistent. The trial court denied the motion and entered final judgment against Respondents, jointly and severally, on the unjust enrichment claim only. Id. Although it reduced the jury award on this claim to $5 million, the trial court entered final judgment in favor of Petitioner for $14,063,164.50, after adding prejudgment interest. Id.

Respondents appealed, and the Third District held that Respondents were entitled to judgment as a matter of law because the evidence did not support any of Petitioner’s claims. Id. at 1149, 1151. Specifically, the court found that there was no unjust enrichment because the benefit of the loan was conferred upon corporate entities rather than Respondents directly. Id. at 1152 (citing Peoples Nat’l Bank of Commerce v. First Union Nat’l Bank of Fla., N.A., 667 So.2d 876, 879 (Fla. 3d DCA 1996), for principle that unjust enrichment requires a benefit conferred directly to the litigant). The district court also reversed because Petitioner’s claims were barred by the statute of limitations, as the fifth amended complaint did not relate back to the original. Id. at 1153. The court stated to have relation back, an amended pleading must not state a new cause of action. Id. at 1152. The court found that the alleged oral promise by Enrique to repay the $5 million was “new, different, and distinct” from that which was originally pled. Id. Thus, the Third District concluded that the fifth amended complaint could not relate back as a matter of law. Id. Petitioner now seeks review of the Third District’s decision.

ANALYSIS •

A trial court’s ruling on a motion to dismiss is subject to de novo review. Mender v. Kauderer, 143 So.3d 1011, 1013 (Fla. 3d DCA 2014); Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 869 (Fla. 2d DCA 2010). The determination of whether an amended complaint relates back to the filing of the original complaint is a question of law, also reviewed de novo. Caduceus Properties, LLC v. Graney, 137 So.3d 987, 991 (Fla. 2014); Flores v. Riscomp Indus., Inc., 35 So.3d 146, 148 (Fla. 3d DCA 2010). An amended complaint raising claims for which the' statute of limitations has expired can survive a motion to dismiss if the claims relate back to the timely filed initial pleading. Flores, 35 So.3d at 147. Thus, the conflict issue here is whether Petitioner’s fifth amended complaint, which added a new “breach of oral promise” claim not contained within the original complaint, relates back to the filing of the original complaint under rule 1.190(c). Rule 1.190 governs amended pleadings and defines the relation back doctrine as follows: “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Fla. R. Civ. P. 1.190(c) (emphasis added).

I. Relation Back

It is undisputed that Petitioner’s original complaint, filed in 1994, did not specifically allege a breach of oral promise claim. Petitioner first asserted this claim in his fourth amended complaint, in 2008 against. Enrique only, and against both Respondents in his fifth amended complaint in 2009. The statute of limitations provides only a four-year period in which to raise such a claim. § 95.11(S)(k), Fla. Stat (1993). Here, the fifth amended complaint alleges that the oral promise was made “during the funding of the loan” to Bernardo, which occurred in 1991. Respondents explain that Petitioner’s July 13, 2010, Answers to Interrogatories state that the oral promise was made in 1991, 1992, and again in 1993. Even using 1993, the statute .of limitations expired on Petitioner’s claim in 1997 at the latest. Thus, for the claim to survive dismissal, it must relate back to the initial complaint. Flores^ 35 So.3d at 147.

There are two lines of district court cases interpreting the operation of the relation back doctrine in Florida. The first holds that an amended pleading does not relate back if it states a new, different, or distinct cause of action from the original pleading. Trumbull Ins. Co. v. Wolentarski, 2 So.3d 1050, 1055 (Fla. 3d DCA 2009); Page v. McMullan, 849 So.2d 15, 16 (Fla. 1st DCA 2003) (stating that amendments “may not be used to avoid the statute of-limitations if the amendment sets forth a new and distinct cause of action”); Arnwine v. Huntington Nat’l Bank, N.A., 818 So.2d 621, 625 (Fla. 2d DCA 2002) (“[Entirely new and separate causes of action will not relate back.”); W. Volusia Hosp. Auth. v. Jones, 668 So.2d 635, 636 (Fla. 5th DCA 1996) (explaining that relation back is not permitted where amendment states a new and distinct cause of action); Daniels v. Weiss, 385 So.2d 661, 663 (Fla. 3d DCA 1980). For example, in Arnwine, the plaintiffs original complaint alleged causes of action against the defendant bank for reconstruction of lost instruments, conversion, accounting, fraud, and breach of fiduciary duty. 818 So.2d at 625. The amended complaint alleged the same causes of action, but also included a new claim for civil conspiracy. Id. The Second District found that the trial court did not err in dismissing this new claim because “[w]hile the allegations of this count arise from the same set of operative' facts alleged in the original complaint; civil conspiracy is, in fact, an entirely new cause of action” that does not relate back. Id. at 625-26.

The second line of cases' instead follows the exact langüage of rule 1.190(c)—allowing relation back where the claims from the amended pleading arise' out of the same conduct, transaction, or occurreftce as in the original, timely filed complaint. Armiger, 48 So.3d at 870; Flores, 35 So.3d at 147. In other words, as long as the initial complaint gives the defendant fair notice of the general factual scenario or factual underpinning of the claim, amendments stating new legal theories can relate back. Fabbiano v. Demings, 91 So.3d 893, 895 (Fla. 5th DCA 2012); Flores, 35 So.3d at 148; Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989). This is true even where the legal theory of recovery has changed or where the original and amended claims require the assertion of different elements.

In Armiger, the plaintiff sued a company and its janitorial service provider after he slipped and fell on the company’s property. 48 So.3d at 866, The trial court dismissed the plaintiffs first amended complaint for failure to state a cause of .action as against the company because the complaint did not allege breach of a nondelegable duty or vicarious liability and there was no basis for a negligence claim against the company directly. Id. The plaintiff moved to amend his complaint accordingly, but the court denied the motion; reasoning that the statute of limitations had expired and the proposed amendment would not relate back.' Id..On appeal, the Second District found that even though it stated a new cause of aption, the proposed amendment would relate back because the claims alleged therein were based on the same conduct, transaction or occurrence as those in the first amended complaint. Id. at 872. The court explained that “[although the first amended complaint, does not plainly state the breach of. a .[nondelegable] duty, the applicability of. the doctrine of nondelegable, duty under the facts alleged is apparent.”. Id.;, see also Roden v. R.J. Reynolds Tobacco Co., 145 So.3d 183, 188 (Fla. 4th DCA 2014) (finding that wrongful death claim and personal injury claim arose out of same transaction because both were based on decedent’s claim of injury due to smoking cigarettes); Mender, 143 So.3d at 1014-15 (finding relation back where “the characterization of the complaint as individual or derivative did not alter the underlying facts, circumstances, or parties, and gave .fair notice to all parties of the general fact situation out of which the claims arose”).

Essentially, this second line of cases holds that the assertion of a new claim in an amendment is not dispositive as to whether the amendment can relate back. However, these cases recognize that ⅛ newly added claim could fail to meet the relation back test if the new claim is so factually distinct that it does not arise out of the same conduct, transaction, or occurrence as the original. See Fabbiano, 91 So.3d at 894-95 (explaining that cases such as West Volusia Hospital Authority do not stand for the principle that “an amendment involving a new cause of action never relates back” under rule 1.190 but instead “pertain to a narrow set of circumstances wherein the proposed ameiidment, although emanating from the same set of operative facts, involved a factually distinct claim”).

In Caduceus Properties, LLC v. Graney, 137 So.3d 987 (Fla. 2014), we had before us the issue of “whether an amended complaint, naming a third-party defendant as a party defendant, relates back to the filing of the third-party complaint for statute of limitations purposes.” Id. at 989. We found that the amended complaint related back because the third-party complaint put the third-party defendant on notice of the conduct, transaction, or occurrence from which the claims against that defendant arose. Id. at 992-93. We noted that our holding did not “disturb the precedent that, generally, the relation back doctrine does not apply when an amendment seeks to bring in an entirely new party defendant to. the suit after the statute of limitations has expired.” Id. at 993-94 (emphasis added). Nor did it remove all discretion from the trial court, since that court must still determine whether the claims arise from the same conduct, transaction, or occurrence and still retains “discretion to deny the amendment if it is so late in the proceedings that the opposing party would be unfairly prejudiced and other options, such as a continuance, would be unfair to either party.” Id. at 994.

We cited three factors in support of our interpretation of rule 1.190(c) that- are equally applicable here. First, this interpretation is consistent with Florida’s, judicial policy of freely permitting amendments to pleadings, as long as they do not prejudice the opposing party, so that cases may be resolved on the merits. Id. at 991-92. Second, “[permitting relation back in this context is also consistent with Florida case law holding that rule 1.190(c) is to be liberally construed and applied.” Id. at 992. Last, this interpretation is consistent with the purpose of the statute of limitations, which is “to protect defendants .from unusually long delays in the filing of lawsuits and to prevent, prejudice to defendants from the unexpected - enforcement of stale claims”—a purpose that is not implicated where the new-claims' concern the same conduct, transaction, or occurrence as the original. Id.

In accordance with rule 1.190 and our prior case law, we disapprove the first line of cases to, the extent that they establish, a bright-line rule that amendments asserting new claims cannot-relate back under any circumstances. As established in Fabbiano, Armiger, and even Caduceus, amendments asserting new claims can relate back to the original pleading as long as they arise out of the same conduct, transaction,, or occurrence as the claims within the original. The proper focus of the inquiry is not whether the amended pleading sets forth a new or different claim, but whether the claims within the amended pleading are part of the same conduct, transaction,' or occurrence as in the original pleading. Accordingly, we approve ’the' second line of cases, which recognizes that while amendments with new claims do not always relate back, they can do so if the claims are not factually distinct from those within the original complaint.

In the instant case, we reject the Third District’s holding, that “because the fifth amended complaint states a new cause of action, it cannot relate back as a matter of law.” Kopel, 117 So.3d at 1152. Although the two complaints allege slightly different facts or different theories of recovery, such differences do not preclude a finding of relation back. See, e.g., Fabbiano, 91 So.3d at 896 (finding that original negligence claim and amended claim of battery still “arose from the same occurrence” and related back, although predicated on different legal theories); Flores, 35 So.3d at 147 (“Although additional allegations of fact were inserted into the complaint as it progressed through its steps, and the legal theories of recovery were supplemented and modified, the substantive factual situation remained the same as that found in the original complaint.”); Dailey v. Leshin, 792 So.2d 527, 532 (Fla. 4th DCA 2001) (“The proper relation back test is whether the amended claims arose out of the same conduct, transaction, or occurrence originally set forth, even if they raise a new legal theory.”).

Both the original and fifth amended complaints allege that (1) Petitioner and Enrique borrowed $15. million, with Petitioner being liable for $5 million and Enrique being liable for $10 million; (2) Petitioner loaned such amount to either Bernardo individually or Respondents collectively; and (3) regardless of the asserted theory of recovery, Respondents, individually and collectively, have failed and refused to pay this amount. Accordingly, the new claim is not factually distinct, but arises out of the same conduct, transaction, or occurrence as that established in the original pleading. Petitioner’s fifth amended complaint relates back to his original complaint, and we quash the Third District’s decision reversing the trial court’s denial of Respondents’ motion for summary judgment.

II. Sufficiency of the Evidence

We also disagree with the district court’s holding that Respondents were entitled to judgment as a matter of law based on insufficient evidence. Kopel, 117 So.3d at 1151. After trial, Respondents filed a motion for a new trial or for judgment notwithstanding the verdict on grounds that, inter alia, no evidence existed to prove Petitioner’s claims. The trial court denied that motion, but the Third District reversed, holding that Respondents were entitled to judgment as a matter of law because the evidence did not support any of Petitioner’s clams. Id. Although the district court found insufficient evidence of all three counts asserted in Petitioner’s fifth amended complaint, the court only discussed the evidence as to the unjust enrichment claim, finding no evidence of unjust enrichment because there was no evidence of a benefit being conferred directly to Respondents, rather than indirectly to corporations owned by them. Id. at 1152-53.

The Third District is correct that to prevail on an unjust enrichment claim, the plaintiff must directly confer a benefit to the defendant. See Peoples Nat’l Bank of Commerce v. First Union Nat’l Bank of Fla. N.A., 667 So.2d 876, 879 (Fla. 3d DCA 1996). However,' we disagree with the Third District’s ruling regarding insufficient evidence because the record contains sufficient evidence to support the jury’s verdict as to Count II for breach of an oral promise.

An order on a motion for directed verdict or for judgment notwithstanding the verdict is reviewed de novo. See Christensen v. Bowen, 140 So.3d 498, 501 (Fla. 2014); Jackson Cty. Hosp. Corp. v. Aldrich, 835 So.2d 318, 326 (Fla. 1st DCA 2002) (applying same standard of review to both). We must affirm the denial of the motion “if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). In addition, we must view the evidence and all inferences of fact in the light most favorable to the nonmoving party. Christensen, 140 So.3d at 501.

As to Count II, alleging Respondents’ breach of án oral promise, we find that sufficient evidence exists to sustain a verdict in Petitioner’s favor as to this claim. Petitioner testified repeatedly that Respondents had promised multiple times to repay him for the $5 million loan. Petitioner also testified that Enrique had once promised repayment at a meeting with Petitioner’s and Enrique’s parents—a meeting about which their mother, Chana Kopel, testified confirming Petitioner’s testimony. Enrique himself testified about this meeting, stating that a verbal agreement was reached for Enrique to pay Petitioner $5 million in exchange for a release from Petitioner as to any interests Petitioner had in companies the parties owned together. However, Enrique testified that the parties had agreed to put the oral agreement in writing. Although Enrique also testified that Petitioner did not make any loans to Respondents and that Enrique did not promise to repay any loans, the jury could have instead accepted Petitioner’s and his mother’s testimony. Furthermore, the jury expressly rejected, by special verdict form, Enrique’s testimony that the agreement was to be reduced to writing.

Viewing the evidence and inferences of fact in the light most favorable to Petitioner, we find sufficient evidence to sustain the jury’s verdict on Count II for breach of an oral promise. It matters not that the trial court entered judgment only on' the unjust enrichment count because the jury here awarded judgment to Petitioner, by special verdict form, on each of three different theories of recovery and was not asked to apportion the damages between each theory. See Southstar Equity, LLC v. Lai Chau, 998 So.2d 625, 631 (Fla. 2d DCA 2008) (“Where a special verdict supports the samé damage claim on two or more theories of liability, if one of the theories of liability is not affected by harmful error, an error with respect, to another theory of liability that would be considered harmful if the affected theory of liability were viewed in isolation is rendered harmless because the verdict is independently supported by another theory of liability.”); ISK Biotech Corp. v. Douberly, 640 So.2d 85, 89 (Fla. 1st DCA 1994); Thomas v. Wyatt, 405 So.2d 1369, 1370 (Fla. 4th DCA 1981) (“Plaintiff proceeded to trial and verdict upon three separate theories and prevailed upon all three. The judgment for compensatory damages is supportable based upon [one] theory [of recovery] even if error, occurred in some other aspect of the case.”). Thus, any one of those threé theories individually can provide the basis for the jury’s verdict.

CONCLUSION

We hereby quash the -Third District’s decision in Kopel v. Kopel, 117 So.3d 1147 (Fla. 3d DCA. 2013), and approve cases such as Caduceus Properties, LLC v. Graney, 137 So.3d 987, 989 (Fla. 2014), Fabbiano v. Demings, 91 So.3d 893, 895 (Fla. 5th DCA 2012), and Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 870 (Fla. 2d DCA 2010), which make clear that an amendment asserting a new cause of action can relate back to the original pleading where the claim arises out of the same conduct, transaction, or occurrence as the original. We also quash the Third District’s finding of insufficient evidence of Petitioner’s breach of oral promise claim and remand to the district court for proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, and LEWIS, JJ., and PERRY, Senior Justice, concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

CANADY, J.,

dissenting.

I agree with the majority “that an amendment asserting a new cause of action can relate back to the original pleading [when] the claim arises but of the same conduct, transaction, or occurrence as the original.” Majority op. at 820. But I disagree with the majority’s conclusion that the decision on review transgresses this rule. Because the result reached by the Third District is consistent with the rule in the supposed conflict cases on which the majority relies,' I would dischargé this case. I therefore dissent.

The majority tellingly relates that— fourteen years after suit was first filed— “[a]t the 2008 trial, Petitioner, for the first time, claimed that settlement conversations between him and Enrique were actually oral agreements whereby Enrique was to pay $5 million to Petitioner in exchange for Petitioner’s interest in certain business entities.” Majority op. at 814. Following the declaration of a mistrial, the Petitioner filed an amended ' complaint alleging a claim based on these new facts. The district court correctly concluded that , under Florida Rule of Civil Procedure 1.190(c) this new claim did not relate back to the filing of the original complaint and therefore was barred by the statute of limitations.

Under the relation-back rule, a plaintiff may plead new causes of action based on the basic factual narrative previously alleged. But a plaintiff is not entitled to allege new core facts. A plaintiff may supplement—with related, facts and new causes of action—the original narrative, but may not bring forth a new narrative. A claim predicated on such a new narrative is not a claim that “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in. the original pleáding” and therefore does not relate back to the filing of the original complaint. Fla. R. Civ. P, 1.190(c).

To accept the Petitioner’s position requires that the rule’s reference to claims arising from the “conduct, transaction, or occurrence” that was originally alleged be understood to encompass every factual allegation related to the contemporaneous business interactions of a plaintiff and defendant. Under this viéw, a plaintiff who had originally claimed that the defendant had failed to pay for' an automobile purchased from the plaintiff would be permitted—after the statute of limitations hald run—to make a claim based on the alleged failure of the defendant to pay for a horse purchased from the plaintiff. This seriously distorts the rule and would turn litigation into a quest by the plaintiff to find some new winning narrative whenever the original narrative threatens to fail.

Here, the claims previously' pleaded by the Petitioner related to unpaid obligations arising from alleged loan transactions as well as harm suffered by the Petitioner as an investor in certain business entities. The claim that the Third District concluded was barred by the statute of limitations was based on allegations that Enrique had breached an oral agreement to purchase the Petitioner’s interest in certain business entities. A transaction involving a promise to purchase an interest in business entities is entirely distinct from a loan transaction or an occurrence involving harm to a claimant as an investor. The transaction involving the alleged promise to purchase an interest in certain business entities thus did not arise from the same “conduct, transaction, or occurrence” set forth in the original complaint.

So the result reached by the Third District was correct. Admittedly, the Third District erred in making the unqualified statement that “[t]o relate , back, the [amended] pleading must not state a new cause of action.” Kopel v. Kopel, 117 So.3d 1147, 1152 (Fla. 3d DCA 2013). But the court also emphasized the totally distinct core factual allegations underlying the new cause of action in the amended complaint. In these circumstances, the case should be discharged.

POLSTON, J., concurs.

      . Hereinafter, Enrique and Bernardo Kopel may be referred to collectively as Respondents or individually according to their first names.

      . Flores, 35 So.3d at 147 (allowing relation back even though legal theories of recovery in amended-complaints were supplemented and modified).

      . See, e.g., Fabbiano, 91 So.3d at 896 (finding that battery claim related back to negligence claim because both involved same plaintiff, same injuries, and same damages and, therefore, "arose from the same occurrence”).

      . See, e.g., Trumbull Ins. Co,, 2 So.3d at 1055 (finding that plaintiffs PIP claim did not relate back to original negligence and uninsured/underinsured claims where original claims concerned collision of school bus with plaintiff’s vehicle and PIP claim concerned insurer’s failure to pay medical providers certain contracted benefits); W. Volusia Hosp. Auth., 668 So.2d at 636 (finding father’s claim for loss of filial consortium in death of son sufficiently different from mother’s claim for loss of filial consortium such that father’s claim did not relate back). We cite these two cases as examples of the analysis conducted by the courts therein without passing judgment as to the correctness of either decision.

      . We acknowledge that sufficiency is not the conflict issue in this case. However, once we accept jurisdiction to resolve a conflict, we may, in our discretion, consider other issues properly raised and argued before this Court. Savoie v. State, 422 So.2d 308, 310 (Fla. 1982).

      . ■ We decline to i address any other issues raised by the' parties,


author: Per Curiam.

text:
    Orna MILLER, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 4D16-2329
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Michael A. Levin of the Law Offices of Michael A. Levin, Weston, and Andrew M. Kassier of Andrew M. Kassier, P.A., Coral Gables, for appellant.
    Brandon S. Vesely of Albertelli Law, Tampa, for appellee.
   Per Curiam.

In this foreclosure proceeding we affirm the denial of appellant’s post-judgment motion for sanctions against the appellee based on Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (finding that in the absence of an adequate record on appeal an appellate court must affirm an order or judgment). Although the parties filed a stipulation of facts, those facts do not show that the court abused its discretion in denying the motion. See Galasso v. Gargione, 40 So.3d 14 (Fla. 2d DCA 2010). Here, the stipulation contained no facts regarding whether the appellee paid previously awarded amounts of sanctions, one of the grounds upon which additional sanctions were sought. Further, the appellant accused the bank of misconduct in proceeding with the loan foreclosure while the appellant was seeking modification and in refusing to give her a payoff figure for her loan. There is simply insufficient evidence within the statement of facts or in this record to show without dispute that the bank acted improperly, so that the denial of sanctions was an abuse of discretion.

Affirmed.

Warner, Levine and Buchanan, Laurie E., Associate Judge, concur.


author: Taylor, J.

text:
    VILLAS OF WINDMILL POINT II PROPERTY OWNERS’ ASSOCIATION, INC., Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    No. 4D16-2128
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    Jose D. Sosa of the Law Office of Jose D. Sosa, P.C., North Palm Beach, for appellant.
    Avri S. Ben-Hamo and Steven B. Greenfield of the Greenfield Law Group, P.A., Boca Raton, for appellee.
   Taylor, J.

A property owners’ association, Villas of Windmill Point II (the “Association” or the “Villas Association”), appeals a final judgment concerning a property owner’s liability for assessments under section 720.3085(2), Florida Statutes (2011). We affirm the final summary judgment and hold that, although the current parcel owner did not directly qualify for the safe harbor provision under section 720.3085(2)(c), it did indirectly benefit from the safe harbor provision because, under section 720.3085(2)(b), it was jointly and severally liable with the prior parcel owner for all unpaid assessments due up to the time of transfer of title, and the prior parcel owner did qualify for the safe harbor provision. However, we remand for the trial court to make certain corrections to the final judgment consistent -with this opinion.

Fannie Mae currently owns a parcel of real property that is part of the Villas Association. A mortgage was recorded on the property in 2005 in the amount of $103,600. CitiMortgage later became the holder of the mortgage, which was the first mortgage on the property. CitiMortgage filed a mortgage foreclosure complaint against multiple defendants, including the borrower and the Association. A foreclosure judgment was entered in favor of CitiMortgage. Following a foreclosure sale, CitiMortgage took title to the property. CitiMortgage deeded the property to Fannie Mae in 2011.

A dispute arose over whether Fannie Mae was entitled to the protection of the safe harbor provision of section 720.3085(2)(c), Florida Statutes, which limits the liability of a first mortgage holder for unpaid assessments. Fannie Mae’s agent, Nationstar, filed suit against the Association, asserting three counts in its amended complaint: Count I—an action to compel the Association’s compliance with the safe harbor provision of section 720.3085(2)(c), Florida Statutes; Count II—an action for declaratory relief; and Count III—an action for damages.

Nationstar eventually moved for summary judgment on Counts I and II. The Association filed an affidavit in response to the motion for summary judgment, but the affidavit essentially consisted of legal conclusions concerning the applicability of the safe harbor provision of section 720.3085(2)(c). At Nationstar’s request, the trial court took judicial notice of the court file in CitiMortgage’s mortgage foreclosure action.

After a hearing on the motion, the trial court granted summary judgment and entered a final judgment in favor of Nations-tar as to Counts I and II. The court ruled that “Fannie Mae’s liability to [the Association] is limited to 1% of the original mortgage $1,306.00, plus any monthly assessments which accrued after CitiMortgage, Inc. took title.” Nationstar voluntarily dismissed Count III, and the Association now appeals the final judgment.

The standard of review of an order granting summary judgment is de novo., Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

On appeal, the Association’s primary- argument is that Fannie Mae was not entitled to the safe harbor provision of section 720.3085(2)(c) because it was not a first mortgagee (or its successor or assignee) that acquired title to the parcel by foreclosure or by deed in lieu of foreclosure.

Section 720.3085(2), Florida Statutes (2011), governs a parcel owner’s liability for assessments imposed by a homeowners’ association:

(2)(a) A parcel owner, regardless of how his or her title to property has been acquired, including by purchase at a foreclosure sale or by deed in lieu of foreclosure, is liable for all assessments that come due while he or she is the parcel owner .... '
(b) A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments- that came ■ due up to the time of transfer, of title....
(c) Notwithstanding anything to the contrary contained in this section, the liability of a first mortgagee, or its successor or assignee as a subsequent holder of the first mortgage who acquires title to a parcel by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title, shall be the lesser of;
1. The parcel’s unpaid common expenses and regular periodic or special assessments that accrued or came, due dur- . ing the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or
2. One percent of the original mortgage debt.
The limitations on first mortgagee liability provided by this paragraph apply only if the first mortgagee filed suit against the parcel owner and initially -joined the association- as a defendant in the mortgagee foreclosure action.

(emphasis added).

Here, although Fannie Mae was not “a first mortgagee, or its successor or assign-ee as a subsequent holder of the first mortgage who acquire[d] title to a parcel by. foreclosure or by deed in lieu of foreclosure” under section 720.3085(2)(c), Fannie Mae does indirectly benefit from the safe harbor provision because, under section 720.3085(2)(b), it is jointly and severally liable with, the prior parcel owner, Citi-Mortgage, for all unpaid assessments due up to the time of transfer of title, and CitiMortgage did qualify for the safe harbor provision.

CitiMortgage qualified for the safe harbor provision because (1) it was the successor or assignee of the first mortgagee, (2) it initially joined the Association as a defendant in the underlying foreclosure action, and (3) it acquired title to the property by foreclosure. Notably, in this appeal, the Association does not raise any argument challenging’ CitiMortgage’s éntitlement to the safe harbor provision.

The Association incorrectly reads section 720.3085(2)(c) in isolation, ignoring the interpretive principle that statutes must, be read as a whole. See, e.g., Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 898 (Fla. 2002). The Association overlooks that, under section 720.3085(2)(b), Fannie Mae’s liability was coextensive with that of CitiMortgage for all unpaid assessments that were due up to the time of transfer of title. In other words, CitiMortgage’s entitlement to the safe harbor protection of section 720.3085(2)(c) 'is relevant to determining the amount of Fannie Mae’s’ “joint arid several liability” with CitiMortgage Under section 720.3085(2)(b). Thus, when Fannie Mae acquired title to the property from CitiMortgage, it became jointly and severally liable with CitiMortgage for all unpaid assessments owed by CitiMortgage’ at the time of transfer of title.

In sum, CitiMortgage qualified for the safe harbor provision of section 720.3085(2)(c), and Fannie Mae' is jointly and severally liable with CitiMortgage for all unpaid assessments that came due up to the time of transfer of title to Fannie Mae.

None of the Association s other arguments merit reversal of the summary judgment. However, we remand for the trial court to correct the final judgment to reflect that Fannie Mae’s liability for assessments is limited to $1,036, which is the safe harbor amount under section 720.3085(2)(c)2., plus (a) all assessments that came due while Fannie Mae was the parcel owner, and (b) all unpaid assessments (not merely unpaid monthly assessments) that came due after CitiMortgage took title to the property up to the time of transfer of title to Fannie Mae. See § 720.3085(2)(a), (b), Fla. Stat. (2011).

Affirmed and Remanded.

May and Kuntz, JJ., concur.

      . Stated plainly, Fannie Mae was never a holder of the-first mortgage, and it acquired title to the property by deed from CitiMort-gage only after CitiMortgage acquired title to the property by foreclosure:

      . The final judgment incorrectly states that 1% of the original mortgage debt is $1,306.

      . It was unnecessary for Nationstar to present evidence of the “unpaid common expenses and regular periodic or special assessments that accrued or came due during the 12 months immediately preceding the acquisition of title ...." § 720.3085(2)(c)l., Fla. Stat. (2011). The safe harbor amount is calculated by taking the lesser of: (1) unpaid common expenses and assessments that came due during the 12 months immediately preceding the acquisition of title; or (2) 1% of the original mortgage debt. Thus, even if the 1% of the original.mortgage debt were the greater of the two figures, using the 1% of the original mortgage debt as the safe harbor amount would not prejudice the Association because it would overstate the safe harbor amount to the Association's benefit.


author: Gross, J.

text:
    TRIBECA AESTHETIC MEDICAL SOLUTIONS, LLC., Appellant, v. EDGE PILATES CORPORATION, a Florida corporation, and Bayou Meto, Inc., a Florida corporation, Appellees.
    No. 4D16-648
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    Marc A. Silverman and Michael R. Kas-sower of Frank, Weinberg & Black, P.L., Plantation, for appellant.
    Mark Perlman of Mark Perlman, P.A., Hallandale Beach, for appellee, Edge Pilates Corporation, a Florida corporation.
    John F. Phillips, Fort Lauderdale; for appellee, Bayou Meto, Inc., a Florida corporation. ■
   Gross, J.

This case has been before .this-court on numerous occasions. This is the third time the case is being reversed and. remanded for further proceedings.

The underlying facts are fully set forth in Tribeca Aesthetic Medical Solutions, LLC v. Edge Pilates Corp., 82 So.3d 899 (Fla. 4th DCA 2011), and Edge Pilates Corp. v. Tribeca Aesthetic Medical Solutions, LLC, 162 So.3d 246 (Fla. 4th DCA 2015) (Tribeca I and Tribeca II). In short, Bayou Meto (the Landlord) leased a building to Edge Pilates (the Tenant), and Edge Pilates subleased a portion of the premises to Tribeca (the Subtenant). Under the agreement between the Tenant and the Subtenant, an unspecified portion of the rent was for marketing services to be provided by the Tenant.

A dispute arose when the Tenant vacated the premises before the expiration of its lease. The Subtenant claimed that its business was dependent on the traffic generated by the Tenant and refused to pay rent on the theory that the Tenant failed to provide marketing services as required by the lease.

The Tenant sued the Subtenant for eviction and money damages and the Subtenant counterclaimed for unjust enrichment. As required by section 83.232, Florida Statutes (2010), the Subtenant paid the monthly rent into the court registry for the duration of the term of the lease. This deposit included the amount which the Subtenant claimed was earmarked for marketing services.

The Landlord intervened asserting its entitlement to the “rent” in the court registry. In Tribeca I, this court held that the Landlord’s right to the registry funds was subordinate to the main action. Tribeca I, 82 So.3d at 901. However, because the Subtenant was still in possession of a portion of the premises, this court held that the Landlord may be entitled to disbursement under section 83.232(1), Florida Statutes (allowing disbursement where a landlord is in danger of losing the premises or suffering other hardship resulting from loss of rental income from the premises). Id.

■ On remand, the Landlord returned some of the disbursed funds to the registry and began to receive hardship payments under section 83.232(1). The Tenant and the Subtenant proceeded to the non-jury trial which resulted in the Tribeca II appeal. In Tribeca II, this court found that the Tenant had established its cause of action for eviction and the Subtenant had established its cause of action for unjust enrichment. This court found the damage award of $100,000 to the Subtenant was not supported by competent, substantial evidence, and remanded “for the purpose of conducting an evidentiary hearing to determine the apportionment of rent monies between the value of the property and- the value of the marketing services.” Tribeca II, 162 So.3d at 250.

On remand, the Landlord again claimed entitlement to the rent in the registry. Following an evidentiary hearing, the trial court determined that the Tenant owed the Landlord $143,023.60 in unpaid rent and ordered the clerk of court to disburse that amount from the registry directly to the Landlord. The court found that the money in the registry “has been rent” and that any issue remaining in the cáse between the Tenant and the Subtenant should not delay “the Intervenor/Landlord’s entitlement to the rent in the court registry at this time.” The Subtenant appeals.

We find that the trial court did not' err in finding that the funds in the registry represent “rent”—the error was in finding that the funds, in .the first instance, represented rent owed to the Landlord. In fact, the funds consisted of disputed rental payments to be allocated between the Tenant and the Subtenant. Tribeca II, 162 So.3d at 250. During the pendency of this case, the Landlord’s only independent claim to the funds was the hardship claim under section 83.232(1).

We again remand for the trial court to conduct an evidentiary hearing to determine the apportionment of rent paid by the Subtenant between the value of the property and the value of the marketing services. Tribeca II, 162 So.3d at 250. We clarify that the Subtenant is entitled to recover from the registry the value of its claim for unjust enrichment (the marketing services). After disbursement to the Subtenant, the Tenant is entitled to the remaining funds in the registry. To the extent that the Tenant owes rent to the Landlord, the Landlord is entitled to claim against any funds in the registry, after the disbursement to the Subtenant.

Disbursement to the Landlord was error because the Landlord was simply an inter-venor with no independent claim to the funds. Its claim, if any, is subordinate to the main action. Tribeca I, 82 So.3d at 901. To be clear, the Landlord cannot recover from the registry any more than the Tenant can recover. Upon issuance of the mandate, the Landlord shall return the disbursed funds ($143,023.60) to the registry.

Reversed and remanded.

Ciklin and Klingensmith, JJ., concur.

      . The Tenant-Subtenant lease ran from August 1, 2008 to November 30, 2012.

      . After the disbursement to the Landlord, there was approximately $6,000 left in the registry.


text:
    Peterson METELLUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1041
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    Jerrard B. Cutrone, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Mark J. Hamel and Joseph D. Coronato, Jr., Assistant Attorneys General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Martin v. State, 797 So.2d 6 (Fla. 4th DCA 2001) (Issues I, II, IV); Jackson v. State, 698 So.2d. 1299 (Fla. 4th DCA 1997) (Issue III).

Warner, Levine, JJ., and Buchanan, Laurie E., Associate Judge, concur.


text:
    John MCCOY, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Individually and as Successor by Merger to Brown & Williamson Tobacco Corporation, Individually and as Successor by Merger to The American Tobacco Company, a Foreign Corporation; Philip Morris—USA, Inc., a Foreign Corporation; Lorillard Tobacco Company, a Foreign Corporation; Liggett Group LLC, (f/k/a Liggett Group, Inc., f/k/a Liggett & Myers Tobacco Company); and Vector Group Ltd., Inc., (f/k/a Brooke Group, Ltd.), a Foreign Corporation, Appellees.
    No. 4D16-1378
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]

      Celene H. Humphries, Shea T. Moxon, Maegen P. Luka and Thomas J. Seider of Brannock & Humphries, Tampa; and Scott Schlesinger, Steven Hammer, Jonathan R. Gdanski and Brittany Chambers, of Schlesinger Law Offices, P.A., Fort Laud-erdale, for appellant.
    Scott Michael Edson of King & Spalding LLP, Washington, D.C.; Val Leppert, William L. Durham II, and Chad A. Peterson of King' & Spalding LLP, Atlanta, Georgia; and Stephanie E. Parker and John M. Walker of Jones Day, Atlanta, Georgia, for appellees, R.J. Reynolds Tobacco Company and Lorillard Tobacco Company.
    Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for appellee, Philip Morris USA Inc.
   Gross, J.

We reverse the circuit court’s order denying a motion for attorney’s fees based upon a'2014 proposal for settlement under section 768.79, Florida Statutes (2015).

On July 24, 2014, the plaintiff/appellant served a proposal for settlement on each of three defendants. The proposals were served by U.S. certified mail. The plaintiff also filed a Notice.of Serving Proposal for Settlement via e-mail on the same date.

The defendants had actual knowledge of the proposals for settlement and did not accept them.

After a trial, the plaintiff obtained a verdict that entitled him to attorney’s fees under section 768.79, The plaintiff moved for attorney’s fees. The defendants opposed an award on procedural grounds— that he failed to e-mail the proposals under Florida Rule of Judicial Administration 2.516. .

The circuit court denied the motion for fees for the failure to comply with Rule 2.516.

Where a party has actual notice of an offer of settlement, and the offering party has satisfied the requirements of section 768.79 on entitlement, to deny recovery because the initial offer was not e-mailed is to allow the procedural tail of the law to wag the substantive dog. See Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So.3d 391, 395-96 (Fla. 2016). We agree with the analysis of Judge Badalamenti in Boatright v. Philip Morris USA Inc., 218 So.3d 962 (Fla. 2d DCA 2017).

The focus of the statute is on actual notice—an offer of judgment is required to be “served upon the party to whom it is made, but it'shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.” § 768.79(3), Fla. Stat. (2014). Echoing the requirements of the statute, Florida Rule of Civil Procedure 1.442(d) provides that an offer “shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.”'

Identifying those documents for which e-mail service is required, Rule 2.516(a) provides, in pertinent part;

(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in my court proceeding ... must be served in accordance with this rule on each party.

(Emphasis added). An offer of judgment is not a pléading. See Fla. R. Civ. P. 1.100(a). At the time it is initially served, an offer of judgment is not a document “filed in any court proceeding”; both section 768.79(3) and Rule 1.442(d) expressly state that it is not to be filed. Under the plain language of Rule 2.516(a), then, the initial- offer of judgment is outside of the e-mail requirements of that rule.

To arrive at a different conclusion, Wheaton v. Wheaton imports language from rule 2.516(b) to add words to the plain language of 2.516(a). 217 So.3d 125, 126 (Fla. 3d DCA 2017). Instead of focusing on subsection 2.516(a), which specifies when e-mail service is “required,” the Wheaton court looked to subsection 2.516(b) to hold that e-mail service was required for the initial delivery of an offer of judgment.

We disagree with Wheaton; subsection (a) is not ambiguous, so a court should not add words to manipulate its, meaning. Even a strict construction of Rule 2.516(a) should consider “only the literal words of [the] writing.” Strict Construction, Black’s Law Dictionary (8th ed.) (Brian Garner ed.) p. 332.

We reverse the circuit court order insofar as it applies to the 2014 offers of judgment.

      . Because we find the 2014 proposal for settlement to be .valid, we do not reach the validity of separate proposals for settlement served by e-mail in 2015.

      . Section 768.79, Florida Statutes (2014) was enacted in 1986 by the legislature for the purpose of “encouraging] parties' to settle claims without going to trial.” Aspen v. Bayless, 564 So.2d 1081, 1083 (Fla. 1990). After three decades of litigation, most lawyers and judges question whether Rule 1.442 and the statute are “fulfilling [their] intended purpose of encouraging settlement or at .times is having the opposite effect of increasing litigation.” Campbell v. Goldman, 959 So.2d 223, 227 (Fla. 2007) (Pariente, J., specially concurring). For an excellent discussion about the tension between the substantive law and procedural rules in this area, see Lauren Rehm, A Proposal for Settling the Interpretation of Florida's Proposals for Settlement, 64 Fla. L. Rev. 1811 (2012).


author: •'Per Curiam.

text:
    Gary R. MCGRIFF, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1111
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    Gary R. McGriff, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and .Matthew Steven Ocksrider, Assistant Attorney. General, West Palm Beach, for appellee.
   •'Per Curiam.

Gary Richard McGriff appeals an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for post-conviction’ relief alleging ineffective assistance of counsel. We reverse and remand for further review of appellant’s claim that he rejected a favorable plea offer because counsel failed to advise that he qualified for enhanced sentencing as a habitual felony offender.

Appellant was convicted of burglary following a jury trial. The trial court sentenced him to a twenty year prison term as a habitual felony offender (HFO) and as a prison releasee reoffender (PRR).

Appellant timely filed a rule 3.850 raising fourteen claims. In ground one, appellant claimed that trial counsel was ineffective • for misadvising him to reject a favorable plea offer to a fifteen year term. Appellant alleged that when he rejected that plea, counsel told him that his maximum exposure following trial was a fifteen year prison term. More specifically, counsel failed to advise appellant that he qualified for HFO sentencing and its consequences, which permitted the twenty year prison term for the second degree felony. § 775.084(4)(a), Fla. Stat. (2012).

We find appellant’s claim is sufficient and not refuted by the record. Alcorn v. State, 121 So.3d 419 (Fla. 2013); Paul v. State, 198 So.3d 999 (Fla. 4th DCA 2016). Accordingly, we reverse the trial court’s summary denial of the claim and remand for it to either attach records conclusively refuting appellant’s claim, or in the alternative, to hold an evidentiary hearing. We affirm the summary denial of appellant’s remaining grounds without further discussion.

Affirmed in part, reversed in part and remanded.

Taylor, Damoorgian and Conner, JJ., concur.


text:
    Fred HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2422
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The defendant appeals his convictions on two counts of burglary of a dwelling with an assault or battery, and one count of sexual battery on a person twelve years of age or older. He raises multiple issues on appeal and we affirm, with one exception. He argues the court erred in failing to instruct the jury on his affirmative defense of consent to enter the residence, a defense included in the standard jury instruction for burglary. See Fla. Std. Jury Instr. (Crim.) 13.1 (2016). Generally, “[tjhe lack of a jury instruction on an affirmative defense only amounts to fundamental error when ⅛ defendant is deprived of his or her sole or primary defense strategy, and that defense is supported by evidence adduced at trial not otherwise characterized as weak.’ ” Faulk v. State, 222 So.3d 621, 623 (Fla. 1st DCA 2017) (quoting Woods v. State, 95 So.3d 925, 927 (Fla. 5th DCA 2012)). In this case, just as in Faulk, because the court failed to instruct the jury on consent, the defendant was deprived of his sole theory of defense. This amounted to fundamental error. See id.

Therefore, we affirm the defendant’s conviction and sentence for sexual battery, but reverse both burglary convictions, and remand for retrial on the burglary charges.

Affirmed in part and reversed in part.

Taylor, May and Kuntz, JJ., concur.


text:
    Willie L. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4022
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]
    Carey Haughwout, Public, Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See Rogers v. State, 223 So.3d 281 (Fla. 4th DCA 2017).

Gross, Taylor and Levine, JJ., concur.


text:
    Paula MELLEY, Appellant, v. MARINER’S WAY ASSOCIATION, INC. and David Hemingway, Appellees.
    No. 4D16-2795
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]
    Robert Rivas of Sachs Sax Caplan, P.L., Tallahassee, for appellant.
    Kathryn L. Ender of Cole, Scott & Kis-sane, P.A., Miami, for appellee Mariner’s Way Association, Inc.
   Per Curiam.

Appellant sought a declaratory judgment against Mariner’s Way Association relating to the expansion of her boat dock. After years of litigation, the Association moved to dismiss the complaint as moot, stating that it was no longer contesting the dock modifications. Over appellant’s objection, the trial court dismissed the complaint and entered a final judgment incorporating the Association’s unilateral stipulation.

A trial court’s discretion is limited when it “essentially enters a declaratory judgment as to one or more significant, disputed issues while describing the judgment as an order of dismissal.” Ribaya v. Bd. of Trs. of City Pension Fund for Firefighters & Police Officers in City of Tampa, 162 So.3d 348, 354 (Fla. 2d DCA 2015). Additionally, “it is difficult for a trial court to justify its discretionary act of dismissal at that stage [of ruling on a motion to dismiss] unless the parties have made stipulations or concessions on the record[.]” Id. at 353.

In the instant case, the Associations unilateral stipulation did not afford appellant all of the relief she sought inasmuch as the relief in the stipulation did not cover all items pled in the third amended complaint. As such, we find the trial court erred in entering the dismissal, and we reverse and remand for further proceedings. Because the Association no longer contests the main issue in the complaint— the dock modifications—this case should be able to be resolved expeditiously on remand;..

Reversed and remanded for further proceedings.

Gerber, C.J., May and Levine, JJ., concur.


author: Kuntz, J.

text:
    Dominick VITALE, Appellant, v. Kathleen E. HOLMES, Appellee.
    No. 4D17-1462
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Jonathan Mann and Robin Rresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Kathleen E. Holmes, Delray Beach, pro se.
   Kuntz, J.

The Appellant appeals the, circuit court’s order summarily denying his petition for protection against cyberstalking/stalking against Appellee without prejudice to refile the, petition after curing purported procedural defects. We reverse because the Appellant was either entitled to an explanation of the reasons for the summary denial or a hearing on his petition.

The Appellant filed, a petition in the circuit court alleging five instances of harassment and stalking. He . included multiple pages of handwritten details regarding the alleged. incidents. The court summarily denied his petition, checking a box on the form order that states, “Petitioner has failed to. allege facts sufficient to support the entry of an injunction for protection against CYBER STALKING/STALKING.” The court noted “insufficient allegations of stalking as defined bylaw.”

On appeal, he argues that he was entitled to a hearing and a detailed explanation as to the reasons for the denial. In lieu of filing an answer brief, the pro se Appel-lee filed what she titled her. “Notice of Consent in Lieu of Answer Brief.” We previously issued an order treating-her filing as an answer brief. In the filing, the Appellee states that she was. not notified of the proceedings in the circuit court until the filing of this appeal. She further states that had she been notified she would have agreed to allow the Appellant a hearing.' However, the court sua sponte denied the Appellant’s petition without prejudice. The Appellee also notes that “[Appellant] chose to forego the additional and multiple remedies that were made available to him in the lower tribunal and, instead, filed an appeal.”

We acknowledge the Appellee’s candor to this Court in her “Notice of Consent.” She has effectively confessed error; an error she had no part in procuring.

On the merits, and as conceded by the Appellee, we must reverse. We have held that a court must hold a hearing or specify the . deficiencies leading to a denial of a petition for injunction against domestic violence. Chizh v. Chizh, 199 So.3d 1050, 1051 (Fla. 4th DCA 2016); Sanchez v. State, 785 So.2d 672, 677 (Fla. 4th DCA 2001). Here, the Appellant filed á relatively detailed petition asserting five instances of purported cyberstalking/stalking. However, the court neither held- a hearing nor explained the basis for its conclusion that the eleven-page petition, supported by'-an additional twenty-five pages of attachments, failed to allege sufficient facts to support entering an injunction. It may in fact be true that the Appellant failed to allege sufficient facts to support the, entry of one. However, our case law requires the court to hold a hearing, or otherwise provide an explanation- of those deficiencies, prior to summarily denying the petition.

Reversed and remanded for further proceedings.

Gerber, C.J., and Warner, J., concur.