author: BERGER, J.

text:
    Freeman CROSBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-2935
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017

      James S. Purdy, Public Defender, Jacqueline Rae Luker and Nancy Ryan, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   BERGER, J.

Freeman Edgar Crosby appeals his judgment and sentence for failure to register as a sexual offender with the local sheriffs office in September 2014 and failure to notify the Department of Highway Safety and Motor Vehicles (DHSMV) of a change of address within forty-eight hours, between July 1, 2014, and January 21, 2015, in violation of section 943.0435, Florida Statutes (2013). He argues that the trial court reversibly erred when it allowed the State to introduce evidence of a prior arrest for failure to register with the sheriffs office and a prior conviction for failure to change his address with the DHSMV. We agree and reverse.

At the outset of trial, the State asserted that it had filed an amended notice of intent to offer evidence of Crosby’s arrest for failing to register in March 2014 and his 2006 conviction for failing to report his new address to the DHSMV within forty-eight hours. The State predicted it would offer this evidence during rebuttal. It emphasized that section 943.0435(9)(c), Florida Statutes (2013), provides that “[a] sexual offender who is charged with a subsequent failure to register may not assert the defense of a lack of notice of the duty to register.” The trial court reserved ruling.

It was undisputed at trial that Crosby had notice that he was required to register twice each year; once in September, his birth month, and again, six months later in March. This was reiterated to him by an employee of the Indian River County Sheriffs Office, who registered Crosby in July 2014. At that time, Crosby acknowledged in writing his duty to update the address on his driver’s license by signing next to that condition on his probation form. Likewise, the paperwork given to him advised him that his next registration month was September 2014. Crosby testified at trial and admitted that he knew he was supposed to register in September and March, and he had done so numerous times in the past. Nonetheless, in September 2014, Crosby failed to register with the Sheriffs Office as a sex offender, and he failed to update his address -with the DHSMV, between July 1, 2014, and January 21, 2015.

Crosby claimed he failed to do so because after he registered in July 2014 with the first employee, an Indian River County officer informed him he was “good” for another six months. Specifically, he and his girlfriend both testified that as they were leaving the Sheriffs office, Crosby’s girlfriend asked the officer several times if Crosby was “good,” and the officer responded, “he’s good for six months.” Crosby stated that although he knew better and should have registered in September, he relied on the officer’s information when he failed to do so. When asked if he now realized after listening to the testimony that he had been misinformed, Crosby stated, “That wasn’t right and it was my fault, I should have went back and checked on my birth date, but that’s my fault.”

Furthermore, Crosby testified that while he knew he was supposed to report his address to the DHSMV within forty-eight hours of an address change, he believed that the Sheriff officer’s misinformation also applied to reporting his address to the DHSMV. Even so, he claimed that he went to the DHSMV in order to report his change of address but was informed that because his ID had been stolen, he would have to obtain a new ID before he could update his address. Crosby testified that he was waiting to obtain his out-of-state birth certificate in order to obtain a new ID when he was arrested for the underlying charges. Crosby and his girlfriend both testified that Crosby did not mention his status as a sex offender to the DHSMV employee. Nevertheless, Crosby claimed that the employee became aware of his status as a sex offender when she pulled up his information. However, a DHSMV employee testified that an ID was not required for a sex offender to update their address.

Despite Crosby’s concessions, the State maintained that it was entitled to present the jury with evidence that Crosby unreasonably relied on the misinformation provided by the Indian River County officer, and the DHSMV employee, because he had been convicted in 2006 of failing to report his new address to the DHSMV, and he had been arrested for his failure to register in March 2014. The State insisted that Crosby’s testimony as to being misinformed “opened the door” to evidence of Crosby’s prior failures to report. Defense counsel countered that the evidence was irrelevant because notice was not in dispute. Moreover, the State could establish that Crosby knew the law without specifying that he knew this information from a prior conviction or arrest; which would be more prejudicial than probative. The trial court agreed with the State, and allowed it to elicit from Crosby that he had been convicted in 2006 for failing to report his change of address to the DHSMV and that he had been arrested for his failure to register in March 2014. The State then highlighted these failures during its closing argument. This was error.

“All evidence tending to prove or disprove a material fact is admissible, unless precluded by law.” Wright v. State, 19 So.3d 277, 291 (Fla. 2009) (citing §§ 90.401-.402, Fla. Stat. (2000)). This includes collateral-crime evidence, such as bad acts not included in the charged offense, when relevant to prove a material fact in issue such as knowledge, or absence of mistake or accident. Id. at 291-92 (citing § 90.404(2)(a), Fla. Stat. (2000)). Collateral-crime evidence, however, is not admissible when it is relevant only to prove bad character or propensity. Id. Moreover, even “[rjelevant evidence ‘is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence,’ ” id., or if it is “submitted to show a defendant’s propensity toward commission of the offense or to show a defendant’s bad character, with nothing more.” Billie v. State, 863 So.2d 323, 327 (Fla. 3d DCA 2003) (citing § 90.403, Fla. Stat. (1997)). “The admission of improper collateral crime evidence is ‘presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.’ ” Wilbur v. State, 64 So.3d 756, 757 (Fla. 5th DCA 2011) (quoting Wilson v. State, 490 So.2d 1062, 1064 (Fla. 5th DCA 1986)); accord McCall v. State, 941 So.2d 1280, 1283 (Fla. 4th DCA 2006) (“Evidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial.” (quoting Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997))).

Evidence of prior convictions to establish knowledge of reporting requirements in eases such as this has no probative value when such knowledge is undisputed. See Horton v. State, 943 So.2d 1016 (Fla. 2d DCA 2006). Here, it was undisputed that Crosby knew his reporting requirements. In fact, he admitted that he knew he had to report and when he was supposed to report. Furthermore, although Crosby claimed that his failures to report were due to his reliance on misinformation, his prior arrest and prior conviction were not necessary to establish that his reliance on such misinformation was unreasonable.. For example, the Indian River County employee testified that when she registered Crosby in July 2014:, she specifically told him he had to reregister in September 2014. Furthermore, there was evidence that Crosby failed to report six months later in January, showing that he did not actually believe he was not required to register until six months after his July registration. Even less relevant is his 2006 conviction, as it does not rebut Crosby’s defense that he attempted to register his new address with DHSMV but was told that he was unable to do so until he had obtained an ID. There was no evidence to establish that in 2006, as a result of his conviction, he was informed that he did not need an ID to update his address with DHSMV.

The State contends that any error was harmless because Crosby readily admitted that he knew he had to report in March and September every year. However, his admissions establish why the evidence of his arrest and conviction was not harmless. Because his knowledge, despite the misinformation, was undisputed, the objected-to evidence was not relevant to support a disputed element of the crimes charged. Additionally, there was less prejudicial evidence that the State could have utilized to establish that Crosby was not misinformed or that his reliance on any misinformation was unreasonable. Thus, we conclude that the State, has failed to prove that there was no reasonable possibility that the error in admitting the collateral-crime evidence affected the verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). Accordingly, we are compelled to reverse Crosby’s convictions in this case and remand for a new trial.

REVERSED and REMANDED for new trial.

WALLIS and LAMBERT, JJ., concur.


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    Ronald THREADGILL, Appellant, v. Kathleen NISHIMURA, Appellee.
    Case No. 2D15-5547
    District Court of Appeal of Florida, Second District.
    Opinion filed June 28, 2017
    Monica P. Lopez Da Silva of Da Silva Law Firm, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   KHOUZAM, Judge.

Ronald Threadgill (the Former Husband) timely appeals the circuit court’s order partially granting Kathleen Nishi-mura’s (the Former Wife) motion for indirect civil contempt and enforcement. We reverse in part and dismiss in part.

After a twenty-four year marriage, the parties were divorced in 2012. As part of those proceedings, the Former Husband agreed to pay one-third of his gross income and bonuses to the Former Wife as permanent alimony. In November 2013, the Former Wife filed a motion for indirect civil contempt and enforcement in which she alleged that the Former Husband underpaid alimony in 2012 and 2013. Following a hearing, the trial court found that the Former Husband owed the Former Wife a total of $8250 in unpaid alimony and found that the Former Wife was entitled to attorney’s fees for the bringing of her motion. The Former Husband filed a motion for rehearing which was subsequently denied. On appeal, he maintains the trial court erred in calculating the alimony he owed for 2012 and 2013 and in awarding the Former Wife attorney’s fees.

“The trial court’s award of alimony is subject to an abuse of discretion standard of review, and where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse the award.” Wabeke v. Wabeke, 31 So.3d 793, 795 (Fla. 2d DCA 2009) (quoting Farley v. Farley, 858 So.2d 1170, 1172 (Fla. 2d DCA 2003)).

First, the Former Husband argues the trial court erred in calculating his 2012 alimony obligations because it failed to deduct his ordinary and necessary business expenses. As a threshold matter, we note that an alimony award is usually based on a party’s net, as opposed to gross, income. See Kingsbury v. Kingsbury, 116 So.3d 473, 474 (Fla. 1st DCA 2013) (“The ability to pay alimony should be based on the party’s net income.” (citing Vanzant v. Vanzant, 82 So.3d 991, 993 (Fla. 1st DCA 2011))). However, we reiterate that the Former Husband agreed to calculate the alimony based on his gross income and has not challenged this method of calculating alimony.

In 2012, the Former Husband was self-employed. Accordingly, the court was required to calculate his income based on his business income, defined as “gross receipts minus ordinary and necessary expenses required to produce income.” Smith v. Smith, 575 So.2d 228, 228 (Fla. 2d DCA 1991) (quoting In re Amendments to Rules of Civil Procedure, 536 So.2d 974, 987 (Fla. 1988)); see also § 61.30(2)(a), Fla. Stat. (2013) (defining business income as “gross receipts minus ordinary and necessary expenses required to produce income,” for the purposes of gross income calculations in determining child support). Here, the trial court erred in calculating the Former Husband’s business income using his gross receipts without subtracting his ordinary and necessary business expenses. See Cissel v. Cissel, 82 So.3d 891, 892 (Fla. 4th DCA 2011) (reversing alimony award where “trial court failed to deduct the husband’s undisputed business expenses” in calculating former husband’s income).

The trial court also erred in calculating the alimony owed by the Former Husband in 2012 because it failed to fully account for the alimony already paid. In its order, the court made a factual finding that the Former Husband paid $4000 in 2012. This finding is repeated in the statement of evidence approved by the trial court. Nevertheless, in calculating the Former Husband’s past due alimony for 2012, the trial court’s order only credited the Former Husband $2500. Accordingly, the trial court’s calculation of the Former Husband’s past due alimony for 2012 is erroneous because it is inconsistent with the court’s own findings. See Boone v. Boone, 3 So.3d 403, 405 (Fla. 2d DCA 2009) (finding that court’s decision to reduce alimony payment was inconsistent with its owns findings); Dolfi v. Dolfi, 667 So.2d 409, 410 (Fla. 5th DCA 1996) (reversing alimony award that was inconsistent with the court’s findings regarding former husband’s ability to pay).

With respect to the trial court’s calculations of the Former Husband’s 2013 alimony obligations, the Former Husband argues the trial court erred in including a $12,500 payment to the Former Husband in his gross income. The court found this payment to be a moving allowance as opposed to an employment bonus. Despite this finding, the trial court included this moving allowance in calculating the Former Husband’s gross income for 2013. Thus, the trial court’s alimony award for 2013 is also inconsistent with its own findings and must be reversed. See Boone, 3 So.3d at 405; Dolfi, 667 So.2d at 410.

Finally, the Former Husband challenges the award of attorney’s fees to the Former Wife. We decline to address this issue because we lack jurisdiction. The trial court’s order found the Former Wife was entitled to attorney’s fees but did not set an amount. An order that merely finds entitlement to attorney’s fees but does not set an amount is a nonfinal, nonappealable order. See Alexopoulos v. Gordon Hargrove & James, P.A., 109 So.3d 248, 250 (Fla. 4th DCA 2013); Mills v. Martinez, 909 So.2d 340, 342 (Fla. 5th DCA 2005) (“An award of attorney’s fees does not become final, and, therefore, appealable until the amount is set by the trial court.”); Chaiken v. Suchman, 694 So.2d 115, 117 (Fla. 3d DCA 1997) (stating that an order awarding entitlement to attorney’s fees does not become final until the amount of the fee is set); see also Fla. R. App. P. 9.130 (limiting appealable nonfinal orders to those enumerated in the rule). Accordingly, we dismiss the appeal insofar as the Former Husband challenges the finding that the Former Wife is entitled to attorney’s fees.

In sum, we reverse the alimony awards for 2012 and 2013 and remand for the court to recalculate the Former Husband’s past due alimony for those years consistent with this opinion. Insofar as the Former Husband challenges the award of attorney’s fees to the Former Wife, the appeal is dismissed.

Reversed and remanded in part with instruction; dismissed in part.

WALLACE and BADALAMENTI, JJ., Concur.

      . The record on appeal does not contain a transcript of this hearing. However, a statement of evidence prepared in accordance with Florida Rule of Appellate Procedure 9.200(b)(4) was transmitted as a part of the record in lieu of a transcript.


author: CRENSHAW, Judge.

text:
    David G. JOHNSON and Jill C. Johnson, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee, FOR STRUCTURED ASSET INVESTMENT LOAN TRUST, MORTAGE PASS-THROUGH CERTIFICATES, SERIES 2005-7; Meadow Walk Homeowners Association, Inc., Appellees.
    Case No. 2D15-3269
    District Court of Appeal of Florida, Second District.
    Opinion filed June 28, 2017

      Michael J. Belle and Hosea M. Horne-man of Michael J. Belle, P.A., Sarasota, for Appellants.
    Michele L. Stocker of Greenberg Trau-rig, P.A., ■ Ft. Lauderdale; Kimberly S. Mello and- Laura J. Bassini of Greenberg Traurig, P.A., Tampa, for Appellee U.S. Bank.
    No appearance for remaining Appellee.
   CRENSHAW, Judge.

David and Jill Johnson appeal the 'final judgment of foreclosure entered against them and in favor of U.S. Bank National Association (the Bank) arguing that the Bank failed to prove that it had standing to foreclose. Because the Bank failed to present sufficient evidence that it had standing, we reverse.

The Bank filed its verified complaint against the Johnsons for mortgage foreclosure and to reestablish a lost note "in April 2013 alleging that it had standing as the holder of the note and was entitled to enforce the' note at the time it was lost. The Bank attached to the complaint copies of the note, mortgage, assignment of mortgage, and a lost note affidavit. The note identified BNC Mortgage, Inc., as the lender and the Johnsons as the borrowers and contained no endorsements. The mortgage similarly identified BNC as the lender and the Johnsons as borrowers. The assignment of mortgage, dated July. 18, 2011, reflected that BNC assigned the Johnsons’ mortgage to the Bank; the assignment made no mention of the note. In their answer, the Johnsons asserted the Bank’s lack of" standing as an affirmative defense.

The case proceeded to a nonjury trial. At trial, the Bank introduced the following relevant documents into evidence: the copy of the note, the copy of the mortgage, the copy of the assignment of mortgage, a Securitization Subservicing Agreement (SSA) which identified the Bank as trustee, and two screen printouts—an “acquisition screen” and an “investor screen”— from the Bank s servicer. Importantly, the SSA did not include a mortgage loan schedule indicating what specific loans were included in the trust. The Bank also presented testimony from an employee of its servicer. At the close of the evidence the Johnsons moved for an involuntary dismissal based on the Bank’s failure to prove standing. The trial court denied the motion and entered a final judgment of foreclosure in favor of the Bank.

We agree with the Johnsons’ argument on appeal that the trial court erred in denying the motion for involuntary dismissal because none of the evidence presented by the Bank showed that the Bank was the holder of the note at any relevant point. “A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note.” Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). The Bank concedes that the only version of the note in this case does not contain any endorsements and that there is no evidence of an assignment of the note. The SSA does not reflect that the Johnsons’ loan was a part of the trust, and the Bank’s witness could not tell when, if ever, the Johnsons’ loan was placed in the trust. See Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 643 (Fla. 2d DCA 2015); Focht, 124 So.3d at 311 (“[T]he record does not reflect that, at the time the trust was created, [the borrower’s] mortgage loan was an asset of the trust.”); Schmidt v. Deutsche Bank, 170 So.3d 938, 942 (Fla. 5th DCA 2015) (“[T]here was insufficient testimony and evidence that the note and mortgage in this case were actually included as part of the Mortgage Loan Purchase Agreement.”). Although the Bank insists that the two screen printouts prove that it has standing, that argument fails because the printouts are dated after the complaint was filed and they make no reference to the specific note. See Focht, 124 So.3d at 310 n.1 (“Case law focuses on standing to enforce the note, as opposed to the mortgage, because the mortgage generally passes as an incident to the debt.” (citing Cutler v. U.S. Bank Nat’l Ass’n, 109 So.3d 224, 225 (Fla. 2d DCA 2012))). Accordingly, the Bank failed to present sufficient evidence of standing, and the trial court erred in denying the Johnsons’ motion for involuntary dismissal.

We also reject the Bank’s argument that the proper remedy for its failure to prove standing is to remand for further proceedings in the case. Because the Bank failed to present sufficient evidence of standing, remand for involuntary dismissal of the complaint is appropriate. See, e.g., Dickson v. Roseville Props., LLC, 198 So.3d 48, 52 (Fla. 2d DCA 2015); Creadon v. U.S. Bank N.A., 166 So.3d 952, 954 (Fla. 2d DCA 2015); Russell, 163 So.3d at 643; Correa v. U.S. Bank N.A., 118 So.3d 952, 957 (Fla. 2d DCA 2013).

Reversed and remanded for involuntary dismissal.

SILBERMAN and KELLY, JJ., Concur.


author: PER CURIAM.

text:
    Luis PORTAL and Unlimited Check Cashing, Corp., Appellants, v. WRI JT TAMIAMI TRAIL, LP, Appellee.
    No. 3D16-1928
    District Court of Appeal of Florida, Third District.
    Opinion filed June 28, 2017

      Jesus 0. Cervantes, for appellants.
    GrayRobinson and Kristie Hatcher-Bo-lin (Lakeland); Shuham & Shuham and Martin J. Shuham (Hollywood), for appel-lee.
    Before SUAREZ, C.J., and SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Defendants, Luis Portal and Unlimited Check Cashing, Corp., appeal' a final judgment against them, jointly and severally, as guarantor and tenant under a commercial real estate lease. Following a non-jury trial, the circuit court entered findings in favor of the plaintiff/landlord, WRI JT Tamiami Trail, LP, for $215,272.92. That total amount included both unpaid past rent and approximately 15 months in future rent anticipated to accrue between trial (June 26, 2016) and the expiration date of the lease (September 30, 2017).

The appellants raise numerous claims of error, but only one topic—the inclusion of future monthly rent accruals in the final judgment—warrants discussion. The trial court’s findings of fact regarding: the tenant’s default in payment of rent in September 2014 and thereafter; the tenant’s abandonment of the property three months later; the landlord’s elections to re-take possession of the leased premises for the account of the tenant and to accelerate future rental payments; and the landlord’s reasonable efforts to mitigate damages in accordance with the lease by attempting to re-let the property, are all clothed with the presumption of correctness and will not be disturbed absent a showing of clear error. Covelli Family, L.P. v. ABG5, L.L.C., 977 So.2d 749, 752 (Fla. 4th DCA 2008); section 59.041, Florida Statutes (2016). No such showing has been made in the present case.

The issue requiring a very narrow reversal and remand involves the 15 months of future rent computed by the landlord and admitted into evidence as plaintiffs exhibit 6. The exhibit was a spreadsheet listing each month of default, the rent and other sums due, and a cumulative total. It also listed the anticipated post-trial accrual of those defaulted amounts, discounting them to “net present value” in a separate column. That is the correct computation. Vibrant Video, Inc. v. Dixie Pointe Assocs., 567 So.2d 1003, 1004 (Fla. 3d DCA 1990). However, the discounted total for those 15 months was not the figure added to the pre-trial defaulted rent to produce the judgment amount; through some error, the undiscounted value for unpaid rent for those 15 months was added. This difference, approximately $4,000.00, must be subtracted from the judgment amount carried from exhibit 6 into the final judgment.

Second, the reservation of jurisdiction in the final judgment should have allowed the tenant and guarantor to provide mitigation evidence, as contemplated by the lease, if there is a showing that the landlord has retaken possession, re-let the premises, and received rent during those 15 post-trial months. Quintero-Chadid Corp. v. Gersten, 582 So.2d 685, 689 (Fla. 3d DCA 1991). No such proffer has been made in the record before us, and we express no present opinion regarding the merits of such a claim if one is subsequently asserted.

For these reasons, we affirm substantially all of the findings of fact in the final judgment, but we reverse and remand for the limited purpose of allowing .the trial court to conform the final judgment to the discounted value of the post-trial rent, per plaintiffs exhibit six, rather than the un-discounted total actually included in the final judgment. We also direct on remand that the trial court reserve jurisdiction to hear and determine any claim by the appellants that the landlord has failed to mitigate damages under the specific provisions of the subject lease between the June 26, 2016, jury trial and September 30, 2017. Any such reservation shall not preclude enforcement of the amended final judgment pending the assertion and determination of such a claim by the guarantor or tenant.

Affirmed in part, reversed in limited part, and remanded with instructions.

      . See Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc., 605 So.2d 1317 (Fla. 4th DCA 1992).

      . Such a reservation of jurisdiction is not an instruction or suggestion that discovery should be re-opened to permit the judgment debtors to explore mitigation, absent a preliminary determination that the landlord has re-taken possession and re-let the premises before the expiration of the subject lease (September 30, 2017).


author: SALARIO, Judge.

text:
    Gregory J. WINCHEL, Appellant, v. PENNYMAC CORP.; Mortgage Electronic Registration Systems, Inc., as Nominee for America’s Wholesale Lender; Unknown Tenant #1 n/k/a Matt Bottorff; and Unknown Tenant #2 n/k/a Jennifer Early, Appellees.
    Case No. 2D15-5601
    District Court of Appeal of Florida, Second District.
    Opinion filed July 7, 2017.

      Kenneth Eric Trent of Trent Law Office, Fort Lauderdale, for Appellant.
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Aker-man LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP, West Palm Beach, for Appellee Pennymac Corp.
    No appearance for remaining Appellees.
   SALARIO, Judge.

Gregory Winehel appeals from a final judgment of foreclosure in favor of Penny-Mac Corp. The judgment was rendered after the trial judge approved the report and recommendations of a foreclosure magistrate following a nonjury trial at which Mr. Winehel was not represented because his counsel failed to appear. Because Pennymac failed to prove its standing at the inception of the case—a matter as to which it bore the burden of proof— we are required to reverse.

This case began when JPMorgan Chase Bank filed a complaint to reestablish a lost note under which Mr. Winehel was the borrower and to foreclose a mortgage that secured his obligations under the note. It alleged that JPMorgan had the right to enforce the note, which it either had at the time the note was lost or acquired from someone else who did. It also .attached copies of a note and mortgage naming America’s Wholesale Lender as the lender and an assignment of the note and mortgage from Mortgage Electronic Registration Systems as nominee for America’s Wholesale Lender to Countrywide Home Loans, Inc. Because those attachments did not say anything about JPMorgan, however, they did not, standing alone, bear out its allegations concerning its right to enforce the note.

Over a year later, a purported original of the note was filed. That note was identical to the copy attached to the complaint, except that it contained a blank, undated indorsement signed by Countrywide. Not long thereafter, JPMorgan filed a motion to substitute PennyMac as the plaintiff. It alleged that the note and mortgage had been transferred and assigned to Penny-Mac and included an attached assignment of the mortgage, but not the note, from JPMorgan to PennyMac. The motion was granted. Although the complaint was never amended to delete the claim to reestablish a lost note, it is clear that from the time PennyMac was substituted, the case proceeded on the theory that PennyMac was entitled to enforce the note not .because it was entitled to do so under the lost note statute, but rather because it was either the holder of the note or a nonholder in possession of the note with the rights of a holder. See § 673.3011, Fla. Stat. (2012) (defining persons entitled to enforce a negotiable instrument as a holder, a nonholder in possession with the rights of a holder, or a person not in possession entitled to enforce under the lost note or mistake statutes).

Mr. Winehel then filed an answer in which he alleged as an affirmative defense a lack of standing at the time the complaint was filed—what is commonly called a defense of “no standing at inception.” Thereafter, the trial judge entered an order ' referring the case to a foreclosure magistrate to conduct a nonjury trial, see Fla. R. Civ. P. 1.491, and scheduling that trial for a date and time certain.

Mr. Winchel’s attorney did not appear at the trial. The court minutes reflect that the case was called at the scheduled time and again fifteen minutes later, with plans to proceed without the attorney once it was called a third time. Meanwhile, Mr. Winchel’s attorney’s office filed an emergency motion to continue—alleging that a member of his staff incorrectly informed the attorney' of his schedule for the day of trial, that the attorney was at that moment driving across the state to the courthouse, and that the attorney was having difficulty with a low tire during the trip. It is not clear when or if the attorney made it to the courthouse that day, but when the case was called for the third time, the attorney was absent, and the magistrate denied the emergency motion to continue and conducted a nonjury trial with only Penny-Mac’s counsel participating.

PennyMac’s trial evidence consisted of the testimony of a single witness through whom three documents were admitted: (1) a limited power of attorney from JPMor-gan to PennyMac giving PennyMac authority to foreclose certain mortgage loans identified in a separate loan purchase and servicing agreement, (2) an acceleration notice informing Mr. Winchel that he was in default, and (3) Mr. Winchel’s loan payment history. There was, however, no evidence presented to show that JPMorgan was entitled to enforce Mr. Winchel’s note at the time the complaint was filed. The original note—which was not admitted into evidence but that the magistrate recognized was in the court file—bore an undated indorsement in blank. PennyMac did not produce testimony or documents showing when JPMorgan came into possession of the note or, if it was a nonholder in possession, when it acquired the rights of a holder to enforce the note.

After the trial, the magistrate issued a report finding that PennyMac proved its case and recommending entry of a proposed final judgment of foreclosure tendered by PennyMac at trial. Mr. Winchel filed exceptions to the report and recommendations, see Fla. R. Civ. P. 1.490(f), (j); 1.491(f), arguing that the magistrate lacked authority to deny his emergency motion to continue. After a hearing, the trial judge rendered orders overruling Mr. Winchel’s objections and approving the report and recommendations. A final judgment of foreclosure was separately entered.

In this timely appeal, Mr. Win-chel asserts that the judgment should be reversed both because PennyMac failed to prove standing at the inception of the case and because the magistrate lacked authority to deny his emergency motion to continue. We agree that PennyMac failed to prove standing at inception and, because we reverse on that basis, do not address Mr. Winchel’s argument concerning the requested continuance. On the standing issue, our review is de novo. See St. Clair v. U.S. Bank Nat’l Ass’n, 173 So.3d 1045, 1046 (Fla. 2d DCA 2015).

As defenses go, standing has become something of a legal oddity. We treat it as an affirmative defense in that the defendant must put it in play by raising it in an appropriate pleading—ordinarily, the answer. See Dage v. Deutsche Bank Nat’l Tr. Co., 95 So.3d 1021, 1024 (Fla. 2d DCA 2012) (“[L]ackof standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver.” (alteration in original) (quoting Phadael v. Deutsche Bank Tr. Co. Ams., 83 So.3d 893, 895 (Fla. 4th DCA 2012))); see also Fla. R. Civ. P. 1.110(d) (requiring that affirmative defenses be pleaded in the answer). Yet once injected into a case by a defendant’s pleading, we say that it must be proved at trial by the plaintiff. See Dickson v. Roseville Props., LLC, 198 So.3d 48, 50 (Fla. 2d DCA 2015); May v. PHH Mortg. Corp., 150 So.3d 247, 248 (Fla. 2d DCA 2014). Once put at issue by a defendant, then, standing becomes a part of the prima facie case that a foreclosure plaintiff must prove in order to secure a judgment. See Dhanik v. HSBC Bank USA, Nat’l Ass’n, 210 So.3d 113, 115 (Fla. 2d DCA 2016).

Because the count to reestablish a lost note fell out of the case, PennyMac’s standing hinged on whether it and its predecessor in interest were the holders of Mr. Winchel’s note or nonholders in possession with the rights of a holder. See § 673.3011(1), (2); Creadon v. U.S. Bank N.A., 166 So.3d 952, 954 (Fla. 2d DCA 2015). PennyMac was required by law to prove standing under either theory both at the time of trial and also at the inception of the case. See Powers v. HSBC Bank USA, N.A., 202 So.3d 121, 122-23 (Fla. 2d DCA 2016). Because PennyMac was substituted as plaintiff for JPMorgan after the complaint was filed, proof of standing at inception required proof that JPMorgan had standing when it filed the complaint. See Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015).

There was a complete absence of any such evidence here. Because no one has argued otherwise, we assume that the magistrate properly considered the purported original note in the court file. But see Heller v. Bank of Am., N.A., 209 So.3d 641, 644 (Fla. 2d DCA 2017). That note, however, was filed after the complaint was filed, did not show that JPMorgan was the original lender, and bore an undated, blank indorsement. There was no testimony or other evidence to explain when the in-dorsement was. placed on the note. As such, PennyMac failed entirely to show that the note had been indorsed at the time the complaint was filed or that JPMorgan was in possession of the note at that time. It thus failed entirely to prove that JPMorgan was either a holder or a nonholder in possession at the inception of the case. See Phan v. Deutsche Bank Nat’l Tr. Co., 198 So.3d 744, 747 (Fla. 2d DCA 2016) (“Under the law, without the requisite proof of possession at the time a foreclosure action is commenced, the plaintiffs status as the holder of the note—and, hence, its authority to enforce the note in foreclosure—remains unproven, and its complaint untenable,” (citing Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013))); Corrigan v. Bank of Am., N.A., 189 So.3d 187, 190 (Fla. 2d DCA 2016) (en banc) (“Though Bank of America later filed the original note and mortgage along with an assignment, these documents did not establish standing at the time the original complaint was filed because the endorsement was undated and the assignment was dated after the original complaint was filed.”).

There was nothing else in PennyMac’s trial evidence to show that. JPMorgan had standing at inception under any theory. Having been set with the burden to prove standing at inception once Mr. Winchel pleaded it as an affirmative defense, PennyMac failed to carry it, and the final judgment must be reversed. See, e.g., Jallali v. Christiana Tr., 200 So.3d 149, 151-53 (Fla. 4th DCA 2016) (reversing 'foreclosure judgment based on plaintiffs failure to prove standing at inception where, as here, the defendant failed to appear at trial).

PennyMae argues that all of this is academic because Mr. Winchel did not object to its proof of standing at inception at the trial (he was not there) or in his exceptions to the magistrate’s report and recommendations. As such, it says that Mr. Winchel failed to preserve this issue for appeal. See Franklin v. Patterson-Franklin, 98 So.3d 732, 738 (Fla. 2d DCA 2012) (discussing requirement that appellate grounds be preserved by timely objection in the trial court). Under Florida Rule of Civil Procedure 1.530(e), however, Mr. Winchel was not required to object in order to raise the sufficiency of PennyMac’s proof of standing on appeal. Rule 1.530(e) provides as follows:

When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

Under the plain language of the rule, when there has been a nonjury'trial and the appellate issue is the sufficiency of the evidence to support the judgment, the failure to object based on the insufficiency of the evidence will not bar raising that issue on appeal. See, e.g., Correa v. U.S. Bank Nat’l Ass’n, 118 So.3d 952, 954-55 (Fla. 2d DCA 2013) (holding that foreclosure defendant’s failure to object to.sufficiency of the evidence to support reestablishment of lost note in the trial court did not bar raising the issue on appeal). There is, of course, no question that this was a nonjury trial. Furthermore,. as explained above, when Mr. Winchel raised standing in his answer, PennyMae became obligated to prove the standing it asserted in order to win a judgment in the trial court. As such, the appellate issue Mr. Winchel raises goes to the sufficiency of the evidence to support a judgment. See, e.g., Delia v. GMAC Mortg. Corp., 161 So.3d 554, 555 n.1 (Fla. 5th DCA 2014) (applying rule 1.530(e) to hold that foreclosure defendant’s failure to object at nonjury trial to plaintiff’s standing did not preclude the appeal because it was an issue of sufficiency of the evidence); Lacombe v. Deutsche Bank Nat’l Tr. Co., 149 So.3d 152, 153 (Fla. 1st DCA 2014) (same). For that reason, his failure to object in the trial court—whether during the nonjury trial or by way of exceptions to the magistrate’s report and recommendations—does not prohibit him from raising the issue on appeal.

PennyMae argues, however, that a nonjury trial before a foreclosure magistrate is not,a trial before “the court without a jury” within the meaning of rule 1.530(e) (emphasis added). The premise of this argument is that a proceeding before a magistrate without a jury is not a nonju-ry trial before “the court,” even though the results of the proceeding are reviewed by and a final judgment is entered by a trial judge. We disagree. A foreclosure magistrate is appointed by the chief judge of a circuit as necessary to “expeditiously preside over all actions and suits for the foreclosure of a mortgage on residential real property.” Fla. R. Civ. P. 1.491(a). The magistrate may conduct those duties only with the consent of the parties, pursuant to an order referring a matter to the magistrate, and under the supervision of the court. Fla. R. Civ. P. 1.490(d); 1.491(b), (c). That is what happened here; the trial judge made an order referring the case to the foreclosure magistrate for the purpose of conducting a nonjury trial, and the parties (including PennyMac) consented to the magistrate’s doing so. Under the rules and order referring the case to her, the magistrate conducted the nonjury trial on the court’s behalf and as its officer. Cf. Burns v. Burns, 153 Fla. 73, 13 So.2d 599, 602 (1943) (describing a special master, the precursor to the magistrate, as “a highly important and responsible officer of the court, acting for and under the appointment of the court, and vested with considerable authority of a judicial nature”). She was acting for the court for purposes of conducting the nonjury trial, and that trial was thus a trial before “the court” within the meaning of rule 1.530(e). Furthermore, the trial court entered the final judgment of foreclosure without jury findings by adopting the findings and recommendations it had tasked the magistrate to make. That is by definition a type of judgment entered by a trial court upon a nonjury trial, as are all judgments in judicial foreclosures in Florida.

Finally, PennyMac asserts that our decision in Sanabria v. Pennymac Mortgage Investment Trust Holdings I, LLC, 197 So.3d 94 (Fla. 2d DOA 2016), holds that notwithstanding rule 1.530(e), a foreclosure defendant must raise the sufficiency of the plaintiffs evidence on standing at inception at trial in order to preserve it for appeal. PennyMac stretches that case too far. Anything Sanabria said about preservation and standing was dicta. The foreclosure defendant there secured a reversal on grounds that the trial court refused to consider whether a signature on a note was authentic based on an erroneous ruling that the issue had been insufficiently pleaded. Id. at 98. Our statements that he failed to preserve a different ground for reversal related to standing, id. at 95 & n.1, did not control the outcome. See, e.g., Shipley v. Belleair Grp., Inc., 759 So.2d 28, 29 (Fla. 2d DCA 2000) (characterizing statement in earlier decision as dictum where the case was resolved on a different basis). Moreover, the limited discussion of standing in Sanabria does not say what the nature of the standing issue raised on appeal was—sufficiency of the evidence, which would have been subject to rule 1.530(e), or something else, which might have otherwise required preservation— and does not say' whether the defendant-appellant argued rule 1.530 on appeal as a basis for not objecting in t.he trial court. For these reasons, we decline PennyMac’s invitation to read Sanabria as holding that rule 1.530(e) contains an exception, completely missing from its text, for sufficiency challenges when the underlying issue is standing in a foreclosure case.

PennyMac failed to meet its burden of proving at trial- that JPMorgan had standing when it filed the complaint. That requires us to reverse. We do not ordinarily give a party who has failed to prove its case at trial a do-over by remanding for retrial. Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 283 (Fla. 2d DCA 2014) (citing Correa, 118 So.3d at 956). Seeing no principled basis to depart from that rule here, we remand for entry of judgment in Mr. Winchel’s favor. See, e.g., Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124, 1131 (Fla. 4th DCA 2007) (reversing and remanding for entry of judgment where plaintiff failed to meet its burden of proof on issue where it bore that burden).

Reversed; remanded with instructions.

SILBERMAN and BADALAMENTI, JJ., Concur.

      . At the trial, PennyMac's counsel agreed to dismiss the lost note count. Best practices, however, would have included the timely filing of an amended complaint that deleted the lost note count and that stated the basis of PennyMac's authority to enforce the note once the original was located and transferred to it.

      . The answer was not filed earlier because Mr. Winehel had filed a motion to dismiss the complaint which postponed the filing of the answer until the motion was decided. See Fla. R. Civ. P. 1.140(a)(3).

      . But see McLagan v. Fed. Home Loan Mortg. Corp., 145 So.3d 943, 945 (Fla. 2d DCA 2014) (holding that standing was sufficiently raised when defendant denied standing allegations in complaint, raised standing in a motion for summary judgment, and argued standing in response to plaintiff’s motion for summary judgment, which resulted in the summary judgment on appeal (citing Maynard v. Fla. Bd. of Educ. ex rel. Univ. of S. Fla., 998 So.2d 1201, 1206 (Fla. 2d DCA 2009))).

      . PennyMac cites Rosen v. Wilson, 922 So.2d 401 (Fla. 4th DCA 2006), for the proposition that when a specific objection is not included in a party's exceptions to a magistrate’s report and recommendations, the issue not specifically objected to is unpreserved for appeal. However, that case did not involve a challenge to the sufficiency of the evidence in a 'nonjury trial; it involved a putative legal error in a magistrate's determination that a party was not entitled to attorney's fees. Id. at 402. As such, rule 1,530(e)’s exception to the general rules of preservation, which applies in this case, could not havé applied in Rosen. Because here rule 1.530(e) excuses'Mr. Win-chel’s failure to object in the trial court, we need not consider the potential tension between Rosen and other cases that have held that a failure to file any exceptions to a magistrate’s report and recommendations does not prohibit raising appellate issues embedded in it See, e.g., P.P. v. Dep’t of Children & Family Servs., 86 So.3d 556, 560 (Fla. 2d DCA 2012) (holding that the failure to file exceptions to a report and recommendations in the juvenile -context did not bar raising an issue on appeal); U.S. Bank Nat'l Ass'n v. Grant, 180 So.3d 1092, 1093 (Fla. 4th DCA 2015) ("We have considered and reject the Association's argument that the, Bank’s failure to .file exceptions to the special master’s report precludes appellate review.”); Aspsoft, Inc. v. WebClay, 983 So.2d 761, 764 n.1 (Fla. 5th DCA 2008) (holding that failure file exceptions at all does not bar raising appellate issues).

      . In foreclosure cases where standing at inception has not been proven, we ordinarily have remanded for entry of an order of involuntary dismissal. Many of those opinions make clear that the defendant moved for an involuntary dismissal during trial, which would, of course, make remand for entry of such an order appropriate. See, e.g., May, 150 So.3d at 248-49. Others do not disclose whether such a motion was made. See, e.g., Dhanik v. HSBC Bank USA, Nat'l Ass'n, 210 So.3d 113, 115 (Fla. 2d DCA 2016). Here, it is clear that no motion for involuntary dismissal was made—Mr. Winchel’s attorney was absent from the trial—and remand for an order of involuntary dismissal is thus inappropriate. See Fla. R. Civ. P. 1.420(b) (providing that a "party may move” for an involuntary dismissal); Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1041 (Fla. 2d DCA 2015) (stating that remand for an order of involuntary dismissal is inappropriate where no such motion was made). Mr. Winchel argues that we should remand for entry of a judgment in his favor, and because PennyMac failed to prove at trial that which it was required to prove in order to win a judgment after trial, we agree.


text:
    T.B., Father of O.B., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-807
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017
    Allan Campbell, Lake Mary, for Appellant.

      Kelley Schaeffer, Appellate Counsel, Children’s Legal Services, Bradenton, for Appellee.
    Rocco Joseph Carbone, III, and Wendie Michelle Cooper, Appellate Counsel, Sanford, for Guardian ad Litem Program.
   PER CURIAM.

The father appeals from an order modifying permanency. The order was entered at a hearing in his absence. We reach only one issue and reverse.

The parents consented to a finding of dependency, and the trial court set a case plan for reunification. The parents substantially complied with the case plan, the trial court reunified as to both parents, and set a hearing for six months later as required by section 39.701(1)(b), Florida Statutes (2016). Shortly after reunification, but before the hearing, the father was arrested for burglary and larceny.

At the judicial review hearing, the trial court terminated both supervision and jurisdiction as recommended by the Department of Children and Families (“DCF”) and the Guardian Ad Litem (“GAL”), but also modified permanency as to the father. In so doing, the trial court ordered that the father’s visitation would be at the discretion of the mother. The father’s attorney objected to the order, arguing that the father was incarcerated and had a right to be present. The trial court disagreed and entered the order.

The trial court erred when it modified permanency as to the father during his involuntary absence. This Court has held that “[t]he procedures utilized in a dependency action must comport with due process principles.” A.L. v. Dep't of Child. & Fams., 53 So.3d 324, 328 (Fla. 5th DCA 2010). We believe that the father’s right to due process includes his right to attend the hearing in this case. Importantly, no record evidence in this case indicates that the father was intentionally absent or otherwise waived his right to appear. Rather, his failure to attend the hearing was attributable to his incarceration, which can be remedied by the entry of an order directing that the father be transported to attend the hearing.

REVERSED AND REMANDED.

SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.


author: MORRIS, Judge.

text:
    BONITA REAL ESTATE PARTNERS, LLC, a Florida Limited Liability Company; Alico Retail Holdings, LLC, a Florida Limited Liability Company; Scott A. Chappelle, an Individual; and Charles W. Crouch, an Individual, Appellants, v. SLF IV LENDING, L.P., a Texas Limited Partnership, Appellee.
    Case No. 2D15-5492
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017

      Christopher D. Donovan of Roetzel & Andress, LPA, Naples, for Appellants.

      Landis V. Curry, III, and Mark M. Wall of Hill, Ward & Henderson, P.A., Tampa, for Appellee.
   MORRIS, Judge.

The appellants—the borrowers and guarantors of a commercial real estate loan—appeal a final judgment entered in favor of the lender, SLVIV Lending, L.P. The trial court concluded that the parties agreed to apply Texas law to the lender’s claim for deficiency and that under Texas law, the appellants waived their right to challenge the amount of the deficiency. We agree with the appellants’ argument that the trial court erred in applying Texas law because the loan documents state that Florida law applies to foreclosures and the claim for deficiency in this case was a continuation of the foreclosure. Accordingly, we reverse the decision of the trial court in that regard.

I. Background

In 2011, appellants Bonita Real Estate Partners, LLC, and Alico Retail Holdings, LLC, (the borrowers) borrowed $6,100,000 from the lender to develop real property in Lee County. The borrowers executed a promissory note and a mortgage, and appellants Scott A. Chappelle and Charles W. Crouch (the guarantors) executed guarantees by which they agreed to be personally liable for certain “recourse obligations” under the note.

The promissory note provided that the note and other loan documents would be governed by Texas law but that Florida law would govern foreclosure:

THIS NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS AND APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO CONFLICTS OF LAW, EXCEPT THAT THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED (IF DIFFERENT FROM THE STATE OF TEXAS) SHALL GOVERN THE CREATION. PERFECTION. PRIORITY AND FORECLOSURE OF THE LIENS CREATED BY THE MORTGAGE ON THE PROPERTY OR ANY INTEREST THEREIN.

(Emphasis added.) The mortgage provides:

LENDER SHALL COMPLY WITH THE APPLICABLE LAW OF THE STATE OF FLORIDA TO THE EXTENT REQUIRED IN CONNECTION WITH THE FORECLOSURE OF THE SECURITY INTERESTS AND LIENS CREATED HEREBY; PROVIDED, HOWEVER, THIS SUBSECTION SHALL IN NO EVENT BE CONSTRUED TO PROVIDE THAT THE SUBSTANTIVE LAW OF THE STATE OF FLORIDA SHALL APPLY TO THE OBLIGATIONS SECURED BY THIS MORTGAGE WHICH ARE AND SHALL CONTINUE TO BE GOVERNED BY THE SUBSTANTIVE LAW'OF THE STATE OF TEXAS. THE PARTIES FURTHER AGREE THAT LENDER MAY ENFORCE ITS RIGHTS UNDER THIS MORTGAGE AND THE LOAN DOCUMENTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.

(Emphasis added.)

The mortgage and the guarantees also contain waivers of certain remedies or defenses under Texas law. The mortgage provides that the borrowers “waive[] all rights, remedies, claims and defenses based upon or related to [sections 51.003, 51.004 and 51.005 of the Texas Property Code to the extent the same pertains or may pertain to any enforcement of the [n]ote, this [mjortgage or any of the other [l]oan [d]ocuments.” And the guarantees provide that the guarantors “waive ... any and all rights under [sjections 51.003, 51.004 and 51.005 of the Texas Property Code.” These statutes address deficiency judgments and permit a borrower or a guarantor to request that the deficiency amount be offset by the fair market value of the property if the fair market value is greater than the sale price of the property. Tex. Prop. Code Ann. §§ 51.003, .004, .005 (West 2011). Thus, by waiving their rights under those Texas statutes, the appellants waived their right to offset the deficiency by the fair market value of the property, which is permitted under Texas law. See Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 6 (Tex. 2014). This is pertinent to the issue on appeal which we address.

The borrowers defaulted on the loan, and the lender filed an action in Florida circuit court against the borrowers and the guarantors. The original complaint alleged a count against the borrowers to foreclose on the mortgage (count I), a count against the borrowers seeking money due on the promissory note (count II), and a count against the guarantors seeking money damages pursuant to the terms of the guarantees (count III). The trial court entered a judgment of foreclosure in favor of the lender in the amount of $6,983,325 in May 2012, and in the judgment, the trial court reserved jurisdiction for the entry of a deficiency judgment. A foreclosure sale was conducted in June 2012, and the lender purchased the property for $91,200.

In March 2013, in the same underlying foreclosure action, the lender filed a motion for deficiency judgment pursuant to section 702.06, Florida Statutes (2012), claiming that the “fair market value of the [mjortgaged property on the date of the foreclosure sale was less than the total indebtedness owed to [the lender] under the [fjoreclosure judgment.” The parties disputed whether the lender had already foreclosed the development rights to the property, so the lender sought and obtained permission to file an amended complaint to allege a count to foreclose against the borrowers’ non-real estate interests in the property, i.e., the development rights. The dispute on that issue was resolved after a bench trial with the trial court concluding that the development rights had been foreclosed in the prior judgment. Regarding the lender’s claim for deficiency, the appellants amended their answer and affirmative defenses to argue that the property’s value exceeds the indebtedness. The appellants asserted that the property was worth $7,550,000, whereas the lender argued that the property was worth $4,500,000 and that the deficiency was $2,500,000.

The lender’s claims for damages against the borrowers under the note (count III) and against the guarantors under the guarantees (count IV) were set for tidal in November 2014. In a brief filed before trial, the lender argued for the first time that Texas law applies to the lender’s claims to collect money damages on the debt. The parties disputed whether Texas law applies to the lender’s claims on counts III and IV and for deficiency. If Texas law applies, the borrowers and guarantors waived their right under Texas law to have the fair market value of the property considered when determining the amount of deficiency. See Moayedi, 438 S.W.3d at 6. But if Florida law applies, the borrowers and guarantors had not waived such right and could present evidence concerning the property’s fair market value. See Vantium Capital, Inc. v. Hobson, 137 So.3d 497, 499 (Fla. 4th DCA 2014) (“[O]nce the party seeking a deficiency judgment introduces evidence of the foreclosure sale price, the burden shifts to the judgment debtor to present evidence concerning the property’s fair market value.” (quoting Liberty Bus. Credit Corp. v. Schaffer/Dunadry, 589 So.2d 451, 452 (Fla. 2d DCA 1991))). The appellants argued that Florida law should apply to the deficiency claim because it is a continuance of the foreclosure and that the lender’s reliance on Texas law was not asserted in a timely manner. The trial court determined that Texas law applies to the lender’s claims for damages based on the language of the documents and that while Florida law applies to the foreclosure, Texas law applies to the claim for deficiency. The parties and trial court interpreted that ruling to mean that the appellants could not present evidence of fair market value to offset the deficiency, since they had waived their right to do so in the language of the mortgage and guarantees. The trial court also rejected the appellants’ argument that the lender had waived its claim that Texas law applies by not asserting it earlier in the proceedings.

The appellants moved for reconsideration of the issue of whether Texas law applies to the deficiency, and the trial court denied the motion. The trial judge then granted the appellants’ motion to disqualify her, and a new judge was assigned to the case. The appellants asked the successor judge to reconsider the issue of whether Texas law applies, and after two hearings, the judge denied the appellants’ motion for reconsideration, confirming the earlier ruling that Texas law applies.

The lender then moved for partial summary judgment on counts III and IV, claiming that Texas law applies to the damages portions of those claims and that the appellants waived their right under Texas law to offset the fair market value against the total indebtedness owed. The lender acknowledged that whether the appellants were liable based on a recourse event would need to be determined at a trial. The trial court entered an order granting partial summary judgment on the damages portions of counts III and IV, concluding that pursuant to Texas law, the deficiency should be calculated as the difference between the amount of the judgment of foreclosure and the bid price, with the difference being $6,892,125.

The trial court conducted a trial on whether recourse events had occurred that would render the appellants liable, and the trial court found in favor of the lender on those events. The trial court entered a forty-nine-page judgment detailing the full recourse events and limited recourse events establishing liability on the part of the appellants. The trial court found the appellants jointly and severally liable for the amount of $6,892,125 plus interest in the amount of $1,117,562.79, for a total “deficiency” of $8,009,687.79.

II. Analysis

The appellants argue that the trial court erred in applying Texas law to the lender’s claim for deficiency because the loan documents provide for the application of Florida law to foreclosure and a claim for deficiency is a continuation of a claim for foreclosure. The lender responds that it was pursuing its legal claims on the note and guarantees and that its claims were not for a deficiency judgment. The lender also argues that the parties agreed that its claims on the note and guarantees would be governed by Texas law.

We must first determine whether the final judgment- entered is a deficiency judgment. Typically, a judgment of foreclosure and the resulting sale of the property encompass both the remedy at law and the equitable remedy of mortgage foreclosure. Aluia v. Dyck-O’Neal, Inc., 205 So.3d 768, 773 (Fla. 2d DCA 2016) (recognizing-that “the note and mortgage merge into the foreclosure judgment where the foreclosure suit is both an action at law for the balance due under the note and an action in equity to foreclose the mortgage”). But here, the count for foreclosure resulted in a judgment of foreclosure in May 2012 and a foreclosure sale in June 2012, while the count on the note did not proceed to trial until two years later, resulting in a final judgment exceeding $8 million.

A party “has the right to pursue both a claim for foreclosure of the mortgage and. a claim for damages on the note.” Hammond v. Kingsley Asset Mgmt., LLC, 144 So.3d 673, 675 (Fla. 2d DCA 2014), However, “[i]t is axiomatic that a party can only recover once on the same debt.” Id. (quoting Century Grp., Inc. v. Premier Fin. Servs. E., L.P., 724 So.2d 661, 662 (Fla. 2d DCA 1999)); see Royal Palm Corp. Ctr. Ass’n v. PNC Bank, N.A., 89 So.3d 923, 933 (Fla. 4th DCA 2012) (recognizing that it is impermissible for a judgment to “simultaneously allow[ ] the plaintiff to execute on the money judgment and foreclose on the subject property”). Once the party has obtained a foreclosure sale of the property, it cannot collect on the'note other than to pursue the appropriate deficiency amount. See Hammond, 144 So.3d at 676.

“A deficiency decree is one for the balance of the indebtedness after applying the proceeds of a sale of the mortgaged property to such indebtedness.” L.A.D. Prop. Ventures, Inc. v. First Bank, 19 So.3d 1126, 1127 (Fla. 2d DCA 2009) (quoting Commercial Bank of Ocala v. First Nat'l Bank of Gainesville, 80 Fla. 685, 87 So. 315, 316 (1920)). The lender in this case.filed a motion for deficiency under section 702,06, which authorizes a trial court to enter a deficiency decree “[i]n all suits for the foreclosure of, mortgages.” Thus, while a judgment of foreclosure is a final order, “ ‘the law contemplates a continuance of the proceedings for entry of a deficiency judgment’ as a ‘means of avoiding the expense and.inconvenience of an additional suit at law to obtain the balance of the obligation owed by a debtor.’ ” Id. (quoting Timmers v. Harbor Fed. Sav. & Loan Ass’n, 548 So.2d 282, 283 (Fla. 1st DCA 1989)); see Grace v. Hendricks, 103 Fla. 1158, 140 So. 790, 794 (1932) (“The order for deficiency judgment is so dependent on, and merely ancillary to, the foreclosure and sale ...." (quoting City Bank of Portage v. Plank, 141 Wis. 653, 124 N.W. 1000 (1910))). Indeed, a deficiency does not exist without a foreclosure judgment and sale. See, e.g., Singleton v. Greymar Assocs., 882 So.2d 1004, 1007 (Fla. 2004) (“[A] necessary predicate for a deficiency is an adjudication of foreclosure.” (quoting Capital Bank v. Needle, 596 So.2d 1134, 1134 (Fla. 4th DCA 1992))); Chrestensen v. Eurogest, Inc., 906 So.2d 343, 345 (Fla. 4th DCA 2005) (“[T]here can be no action for a deficiency where there has been no foreclosure judgment and sale.”).

We note that section- 702.06 provides in relevant part that a party “shall also have the right to sue at common law to recover [a],deficiency.” The lender in this case filed a motion for deficiency—and obtained a determination of deficiency—in the same underlying foreclosure suit. Thus, it is clear in this case that “[t]he motion for deficiency was a continuance of the foreclosure proceedings.” L.A.D. Prop. Ventures, Inc., 19 So.3d at 1128; see also Timmers, 548 So.2d at 283-84 (holding that “motion for a deficiency was part in parcel to the foreclosure proceedings”). Thus, the final judgment on the note in this case must be treated as a deficiency determination. This is consistent with how the trial court treated the lender’s claim for monetary damages, referring to the amount as the “deficiency.” The language of the note and the mortgage provide that Florida law governs the foreclosure of the lien created by the mortgage, and we conclude that this includes the lender’s claim for deficiency. Thus, the trial court erred in applying Texas law to the deficiency determination, and we reverse the portion of the final judgment that determines the deficiency.

The lender argues that its claims on the note and guarantees did not arise out of the foreclosure. As discussed above, because the lender had already obtained a foreclosure and had purchased the properly at a foreclosure sale, its claim for damages on the note was limited to the amount of the deficiency. We recognize that the borrowers’ liability on the note had not been determined prior to the 2014 trial, which resulted in the 2014 final judgment. But to the extent that the final judgment awards the lender an amount due on the note, representing a difference between the sale price and the indebtedness, that portion of the final judgment operates as a deficiency judgment. Even if the final judgment were not considered a deficiency judgment or determination, the final judgment in this case is the continuation of the lender’s claim for “foreclosure, which encompassed both a remedy at law and the equitable remedy of mortgage foreclosure,” Aluia, 205 So.3d at 773, because the lender proceeded on the mortgage and note and had already obtained a foreclosure judgment and sale. Either way, the lender’s claim on the note is part of the foreclosure in this case.

We recognize that a party may pursue a claim on a guaranty along with a foreclosure claim as long as the party has not received full satisfaction of either claim. See Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408, 409 (Fla. 2d DCA 1983). However, the language of the guarantees in this case make clear that the guarantees were made in connection with the note and mortgage and that the guarantors are liable for the borrowers’ “obligations ... to [Render under the [n]ote, [mjortgage, and all other [l]oan [documents with respect to, and to the full extent of, any and all losses, damages, costs, expenses, liabilities, claims or other obligations of, to, incurred or suffered by Render.” On remand, the parties will have an opportunity to address how a new determination on the issue of deficiency under Florida law affects the lender’s claims on the guarantees.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

LUCAS and BADALAMENTI, JJ., Concur.

      . The trial court also found that the appellants are liable for limited recourse events in the amount of $192,943.53. The appellants do not challenge this amount or the trial court's findings regarding the recourse events.

      . We find no merit in the three other issues raised by the appellants on appeal.

      . While the mortgage contained a waiver under Texas law of the borrowers’ right to offset the deficiency by the fair market value of the property, the note did not contain such a waiver.


text:
    Luis ARGUELLES, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1903
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017
    Felix Felicier, of Felix Law Center P.A., Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 22, 2017 judgments and sentences in Case No. 2014-CF-005147-0, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, BERGER and EDWARDS, JJ., concur.


text:
    Garvey BAZILE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1791
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017
    Garvey Bazile, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 20, 2017 order denying Petitioner’s pro se motion for post-conviction relief, filed in Case No. 12-3575-CFA in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

WALLIS, LAMBERT and EDWARDS, JJ., concur.


text:
    Carlton MCGEE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1701
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017
    Carlton McGee, Wewahitchka, pro se.

      Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the December 7, 2017 judgments and sentences in Case No. 2016-CF-1772 in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.


text:
    Lovie FOLMAR, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1534
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017
    Lovie L. Folmar, Lake City, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 13, 2015, judgment and sentence in Case No. 14-CF-12993 in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, SAWAYA, and EISNAUGLE, JJ., concur.


author: Per Curiam.

text:
    L.B., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, and The Guardian Ad Litem Program, Appellees.
    No. 4D17-1201
    District Court of Appeal of Florida, Fourth District.
    July 26, 2017
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Kelley Schaeffer, Bradenton, for appel-lee Department of Children <& Families.

      Laura J. Lee, Sanford, for appellee Guardian Ad Litem.
   Per Curiam.

Affirmed, See A.M. v. Dep’t of Children & Families, No. 4D17-699, 223 So.3d 312, 2017 WL 3085350 (Fla. 4th DCA July 19, 2017).

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


author: EVANDER, J.

text:
    AEGIS DEFENSE SERVICES, LLC, Appellant, v. Laurence GILBERT, Appellee.
    Case No. 5D16-3345
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 28, 2017

      John H. Pelzer and Haas Hatic, of Greenspoon Marder, P.A., Fort Lauder-dale, and David Barmak, Pro Hac Vice, of Mintz Levin Cohn Ferris Glovsky & Po-peo, PC, Washington, D.C., for Appellant.
    Michael R. Riemenschneider and Jeffrey L. DeRosier, of Riemenschneider, Watt-wood & DeRosier, P.A., Melbourne, for Appellee.
   EVANDER, J.

Laurence Gilbert, a Florida resident, sued his former employer, Aegis Defense Services, LLC (“Aegis”), a Delaware limited liability company headquartered in Virginia, for declaratory relief, unjust enrichment, and failure to pay overtime wages for work that he performed in Afghanistan on behalf of Aegis. The parties’ original employment agreement’was executed by Gilbert in Arkansas. Aegis appeals a non-final order denying its motion to dismiss for lack of personal jurisdiction and for improper venue. We conclude that the trial court erred in denying Aegis’ motion to dismiss for lack of personal jurisdiction and, accordingly, do not address the venue issue.

In his complaint, Gilbert alleged that Aegis was subject to Florida’s long-arm jurisdiction pursuant to sections 48.193(1)(a)1. and 48.193(2), Florida Statutes (2015), Section 48.193(1)(a)1. provides, in relevant part, that a defendant submits itself to the jurisdiction of Florida courts for any cause of action arising from the defendant “[ojperating, conducting, engaging in, or carrying on a business or business venture in this state.” Section 48.193(2) provides that a defendant “who is engaged in substantial and not isolated activity within the state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.”

In support of these bases for jurisdiction, Gilbert alleged the following facts. He submitted his resume to Aegis on-line from his home in Brevard County, Florida. He was subsequently contacted by a recruiter for Aegis. He and the recruiter spoke several times by phone and communicated several times via electronic mail. He was in Florida when these contacts with the recruiter occurred.

At Aegis’ request, Gilbert submitted to pre-employment screening that included a medical examination, a dental examination, and a stress test. The pre-employment screening occurred in Brevard County, Florida, at the offices of medical providers selected by Aegis.

Gilbert was subsequently flown, at Aegis’ expense, to Arkansas for pre-employment training. While in Arkansas, Gilbert signed his employment agreement. The agreement called for Gilbert to serve as an “EDD canine handler” (an explosives detection dog/canine handler) in Afghanistan. Gilbert was employed by Aegis from July 3, 2014, until September 15, 2015, when he submitted his resignation letter.

In Count I of his complaint, Gilbert sought a judgment declaring that the employment agreement he executed in Arkansas was an adhesion contract that was both substantively and procedurally unconscionable. Gilbert alleged, inter alia, that while “isolated” in Arkansas, Aegis provided him with the employment contract and that he had no meaningful opportunity to negotiate different terms because he had already committed his personal schedule to being overseas for a year.

Count II alleged that Aegis had been unjustly enriched by Gilbert’s services. In Count III, Gilbert alleged that he was entitled to be paid “overtime wages.” Count IV sought a declaration that the forum selection clause was unreasonable, unjust, and the result of unequal bargaining power.

In support of its motion to dismiss, Aegis submitted affidavits from Aegis’ officials reflecting that:

1. Aegis is a Delaware limited liability company with its headquarters (and sole U.S. office) in McLean, Virginia;

2. Aegis provides security and risk management services for the overseas operations of the U.S. Government and others;

3. Aegis does not own, lease, or otherwise occupy any property in Florida, nor does it have any offices in Florida;

4. Aegis does not market or solicit business in Florida, and it does not derive any revenue from services rendered or work performed in Florida;

5. Aegis is not licensed or authorized to do business in Florida;

6. Aegis does not maintain any records, bank accounts, or other accounts in Florida and has never paid Florida taxes;

7. Aegis does not have a resident agent in the State of Florida;

8. As reported in his employment application, Gilbert learned of Aegis while working in Iraq; and

9. Gilbert’s sole employment services for Aegis occurred in Afghanistan as an EDD canine handler.

In his affidavit filed in opposition to Aegis’ motion to dismiss, Gilbert affirmed many of the allegations set forth in his complaint. He also averred that Aegis’ website “encouraged” him to submit an employment application, that he was never asked to travel to Virginia to complete any portion of his recruitment process, and that all of his paychecks were directly deposited into his Florida bank account. He did not aver that Aegis’ website was specifically directed to Florida residents. After holding a non-evidentiary hearing, the trial court entered its order denying Aegis’ motion to dismiss.

A trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla. 2002). Here, the jurisdictional facts can be derived from the complaint and affidavits filed by the parties. Those facts can be harmonized. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502-08 (Fla. 1989) (“In most cases, the affidavits can be harmonized, and the court will be in a position to make a decision based upon facts which are essentially undisputed.”).

In Florida, determining if personal jurisdiction exists requires a two-part inquiry. Wendt, 822 So.2d at 1257. First, the court must determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of section 48.193, Florida’s long-arm statute. Id. Second, if the jurisdictional allegations are within the ambit of the statute, the court must determine whether sufficient “minimum contacts” are demonstrated to satisfy federal due process requirements. Id.

Section 48.193 provides two ways to establish long-arm jurisdiction: “specific” in which the alleged activities or actions of the defendant are directly connected to the forum state, and “general” in which the defendant’s connections with the forum state are so substantial that it is unnecessary to establish a relationship between this state and the alleged wrongful actions. Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 250 (Fla. 4th DCA 2011). In the instant case, Gilbert alleged specific jurisdiction under section 48.193(1)(a)1. and general jurisdiction under section 48.193(2). The trial court found that Gilbert had established general jurisdiction.

To establish general jurisdiction, section 48.193(2) requires a defendant to have engaged in “substantial and not isolated” activity in this state. Florida courts have defined “substantial and not isolated” to mean’ “continuous and systematic general business contact with Florida.” Caiazzo, 73 So.3d at 250; Trs. of Columbia Univ. v. Ocean World, S.A., 12 So.3d 788, 792 (Fla. 4th DCA 2009). Continuous and systematic contacts occur where a nonresident defendant’s activities are “extensive and pervasive, in that a significant portion of the defendant’s business operations or revenue [are] derived frotó established commercial relationships in the state” or where “the defendant continuously solicits and procures substantial sales in Florida.” Trs. of Columbia Univ., 12 So.3d at 793.

In Trustees of Columbia University, the plaintiff filed an action in Florida against various defendants, including the Trustees of Columbia University (“Columbia”), for intentional interference with a contractual or business relationship. Columbia’s motion to dismiss for lack of personal jurisdiction was denied by the trial court without explanation. 12 So.3d at 791. On appeal, the Fourth District Court of Appeal reversed. Id. at 795. The court first determined that because .nothing in the relevant contracts contemplated. payment or performance in Florida, the plaintiff was unable to establish specific jurisdiction for committing a “tortious act within the state” under section 48.198(1)(b). Id. at 792.

In evaluating whether general jurisdiction existed, our sister court considered the following facts set forth in Columbia’s supporting affidavits:

1. Columbia did not maintain an office or a bank account in Florida and was not registered to conduct business in Florida;

2. Only ten of Columbia’s 14,000 employees had Florida addresses. Eight of those employees had part-time or zero salary appointments. The remaining two employees were post-doctoral research scientists who were temporarily located in Florida while doing work at laboratories with equipment not available at Columbia;

3.’ Of Columbia’s thirty-seven alumni associations located in the United States, five were in Florida;

4. Although Columbia offered online graduate level courses, only two of -the 447 students enrolled in the online classes had Florida addresses; and

5. The Columbia employee alleged to have engaged in the tortious conduct against the Plaintiff lived in Connecticut and worked in New York and had never been a Florida resident.

Id. at 791.

Despite the fact that Columbia maintained an interactive website accessible to and accessed in Florida, had employees in Florida, had five alumni associations in Florida, and had two students with Florida addresses enrolled in its online classes; the court concluded that the record evidence was insufficient to establish the “continuous and systematic general business contacts” required to confer general jurisdiction. Id. With regard to Columbia’s website, the court observed that the mere existence of a website does not-tend to show that a defendant is directing its business activities toward every forum where the Website is visible. Id. at 795 (citing McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir. 2005)). The court concluded that Columbia’s contacts with Florida through the website were not substantial. Id.

Here, Aegis’ contacts with Florida were far less than those identified in Trustees of Columbia University. Aegis did not have any offices, employees, or accounts in Florida, did not market or solicit business in Florida, did not derive revenue in Florida, and did not own any property in Florida. It simply maintained a website through which Gilbert was able to submit an employment application from Florida,, communicated with Gilbert via telephone and electronic mail while Gilbert was in Florida, arranged to- have Gilbert submit to pre-employment medical evaluations and tests in Florida, and remitted Gilbert’s paychecks into a Florida bank account. These limited contacts did not constitute “substantial and not isolated activity” required to establish long-arm jurisdiction under section 48.193(2). See also Mavrix. Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1225 (9th Cir. 2011) (holding that maintaining “highly interactive” website accessible to forum state residents through which persons could buy and sell tickets to events in forum state and could advertise jobs, hotels, and vacations in forum state was insufficient to establish general jurisdiction); Caiazzo, 73 So.3d at 260-61 (concluding that although defendant maintained -website through which Florida residents.could, contact defendant via. electronic mail to inquire of defendant’s services and merchandise, defendant was not subject to general jurisdiction under section 48.193(2) where over five-year period defendant’s sales from Florida contacts were approximately $100,000 or 4,35 percent of defendant’s total sales for this period); Biloki v. Majestic Greeting Card Co., 33 So.3d 815 (Fla. 4th DCA 2010) (holding that defendants’ actions of submitting greeting card orders to plaintiffs warehouse in Florida for shipment to midwestern customers and traveling to Florida for three days to tour plaintiffs facility, learn order fulfillment procedures, and execute documents, were insufficient to establish general jurisdiction).

Gilbert argues, alternatively, that specific jurisdiction was established pursuant to section 48.193(l)(a)(l). We disagree. Specific jurisdiction requires a connection or “connexity”- between the enumerated activity in Florida and the cause of action. Schwartzberg v. Knobloch, 98 So.3d 173, 177 (Fla. 2d DCA 2012).

' In the instant case, Gilbert alleged that Aegis solicited and interviewed him through its website, telephone communications, and electronic mail while he resided in Florida and that Aegis required him to submit to pre-employment screening in Florida. However, none of the four causes of action alleged in Gilbert’s complaint arose from these activities. Count I challenged the validity of a contract executed by Gilbert in Arkansas. Counts II and III alleged Aegis had an obligation to pay Gilbert additional monies for work he performed in Afghanistan. Count IV simply constituted a challenge to a forum selection provision. Because Gilbert’s “claims” did not arise from Aegis’ purported employment solicitation activities, specific jurisdiction was not established. See Crowe v. Paragon Relocation Res., Inc., 506 F.Supp.2d 1113, 1122 (N.D. Fla. 2007) (holding no connection between nonresident defendants’ alleged age discrimination against job applicant and its solicitation activities in Florida as was required to exercise specific jurisdiction); ’ see also DeLeon v. KBR, Inc., No. 11-00685 ACK-BMK, 2012 WL 1606068 (D. Haw. May 8, 2012) (holding that where Hawaii residents submitted online job application to nonresident defendants, submitted to pre-employment screening and training in Texas, worked in Iraq and signed employment contracts in Texas and Iraq, claims for illegal disparate treatment during employment did not arise out of defendant’s purported solicitation activities in Hawaii, particularly where solicitation activities were not directed to Hawaii residents).

Because Gilbert failed to allege sufficient jurisdictional facts to bring his causes of action within the ambit of Florida’s long-arm statute, it is unnecessary for us to address whether Aegis had sufficient minimum contacts with Florida to satisfy federal due process requirements. We reverse the order denying Aegis’ motion to dismiss for lack of personal jurisdiction and remand with directions to grant the motion.

REVERSED and REMANDED with directions.

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

      . Gilbert’s employment contract was for a one-year term. He later signed an updated employment agreement for a second year. Gilbert executed the second agreement in Florida and returned it to Aegis by electronic mail.

        . Notably, the complaint did not allege' that Aegis had a contractual obligation to pay these monies.

      . The fact that Aegis chose to remit payments to Gilbert through a Florida bank account does not change our analysis, particularly given that Gilbert did not allege that Aegis was required to make payment in Florida.


text:
    Robert DELONG, Appellant, v. LAKEVIEW LOAN SERVICING, LLC, Aqua Finance, Inc., Debra DeLong a/k/a Debra Buford DeLong n/k/a Debra B. Miller, Appellees.
    Case No. 5D16-903
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 28, 2017
    Donato J. Rinaldi, of Rinaldi Law, P.A., Jacksonville, for Appellant.
    Charles P. Gufford, of McCalla Raymer Pierce, LLC, Orlando, for Appellee, Lake-view Loan Servicing, LLC.
    No Appearance for other Appellees.
   PER CURIAM.

Robert DeLong appeals the final judgment of foreclosure entered in favor of Lakeview Loan Servicing, LLC, (“Lake-view”) following a trial. DeLong raises three arguments on appeal, and we find merit in one of his arguments. Concluding that the trial court erred in finding that Lakeview complied with a particular condition precedent to foreclosure, we reverse and remand for entry of a final judgment of involuntary dismissal.

The promissory note and mortgage executed by DeLong that were admitted into evidence at trial provide that the loan at issue is guaranteed and insured by the Department of Veterans Affairs (“VA”). These documents specifically incorporate into their terms certain federal regulations issued under the VA Guaranteed Loan Authority (title 38, chapter 37, United States Code) that govern the rights, duties, and liabilities of the parties to the loan, including the lender’s ability to accelerate payment of the secured indebtedness upon DeLong’s default. Title 38, section 36.4350, Code of Federal Regulations, titled “Servicing procedures for holders,” requires that the holder of a loan guaranteed or insured by the VA must develop and maintain a loan servicing program and specifically sets forth certain minimum actions that a holder must include in its collection procedures against borrowers in various stages of delinquency. See 38 C.F.R. § 36.4350 (2015). In his answer and affirmative defenses, DeLong specifically alleged that Lakeview had failed to comply with “statutory conditions precedent” of 38 C.F.R. § 36.4350 by failing to provide notice and an opportunity to cure the default.

In Palma v. JPMorgan Chase Bank, 208 So.3d 771, 775 (Fla. 5th DCA 2016), we recently held that a promissory note that specifically incorporated the Department of Housing and Urban Development (“HUD”) regulations was appropriately construed as requiring compliance with HUD regulations as a condition precedent to foreclosure, no different than compliance with paragraph twenty-two in a standard mortgage. See, e.g., Colon v. JP Morgan Chase Bank, NA, 162 So.3d 195, 196 (Fla. 5th DCA 2015) (“Paragraph 22 of the mortgage creates a condition precedent that Bank must satisfy prior to accelerating the loan and commencing the foreclosure action.” (citing Samaroo v. Wells Fargo Bank, 137 So.3d 1127 (Fla. 5th DCA 2014))). We see no meaningful reason here to treat compliance with the VA regulations incorporated into the instant note and mortgage any differently than the required compliance with the HUD regulations in Palma.

The trial evidence established that De-Long first defaulted on the note and mortgage by failing to pay the monthly installment payment due on December 1, 2012. Based on the age of the loan, 38 C.F.R. § 36.4350(g)(1)(iv) required that a letter be sent by, or on behalf of, Lakeview to De-Long within 82 days after this payment was due. This regulation also required that the letter to DeLong contain certain mandatory language that, among other things, warns the veteran about the possibility of losing the entitlement to a future VA home loan guaranty and gives direction as to how to obtain assistance and information directly from the VA to discuss options to reinstate the loan. See 38 C.F.R. § 36.4350(g)(1)(iv)(B).

At trial, Lakeview attempted to move into evidence a letter to DeLong dated September 17, 2013, that arguably contained the mandatory language and information required by 38 C.F.R. § 36.4350; however, the trial court sustained De-Long’s objection to the admissibility of this letter and this ruling has not been challenged on appeal. At the conclusion of the trial, the court nevertheless examined this letter and thereafter found that Lakeview had complied with this VA regulation. We conclude that the trial court erred because this letter, having not been properly admitted into evidence, could not form the basis of the trial court’s ruling. See Turtle Lake Assocs., Ltd. v. Third Fin. Servs., Inc., 518 So.2d 959, 961 (Fla. 1st DCA 1988). Accordingly, based upon the lack of any evidence that Lakeview complied with this condition precedent, we are compelled to reverse the final judgment of foreclosure and remand with directions to enter a final judgment of involuntary dismissal.

REVERSED and REMANDED with directions.

PALMER, WALLIS, and LAMBERT, JJ., concur.

      . Lakeview was not the original lender, but it sufficiently established that it had standing to foreclose at the time it filed suit and at trial.

      . The note and mortgage also specifically provide that any of their provisions that are inconsistent with the VA statute or regulations "are amended and supplemented to conform thereto.”


text:
    Raymond Louis SMITH, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D11-4040
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017.
    Andy Thomas, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

In accordance with instructions from the Florida Supreme Court, this cause is remanded for resentencing in conformance with sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Atwell v. State, 197 So.3d 1040 (Fla. 2016); Kelsey v. State, 206 So.3d 5 (Fla. 2016).

ROWE, KELSEY, and JAY, JJ., CONCUR.