text:
    Terry L. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-41
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Stephen HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-344
    District Court of Appeal of Florida, Fourth District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    D.G., The Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D18-83
    District Court of Appeal of Florida, Fourth District.
    [April 20, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lorenzo PEW, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1356
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arthur H. MELTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1878
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Antwaun SNELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3743
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1483
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edgar FRANCISCO-JUAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-1577 4D17-1579 4D17-1581
    District Court of Appeal of Florida, Fourth District.
    April 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael Edwin HARDY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1600
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-280
    District Court of Appeal of Florida, Fourth District.
    [April 19, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Elena WHITBY a/k/a Jennifer Ross, James Crystal Holdings, Inc., James Crystal Licenses, LLC, and James Crystal Enterprises, LLC, Appellants, v. CBS RADIO STATIONS, INC., f/k/a Infinity Radio, Inc., a Delaware corporation, Appellee.
    No. 4D17-1717
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David LOPEZ, Appellant, v. STATE of Florida, Appellees.
    No. 4D17-3647
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    George C. GRIMSLEY, Appellant, v. MALIBU BAY APARTMENTS, Appellee.
    No. 4D18-18
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nelson D. MONZON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-301
    District Court of Appeal of Florida, Fourth District.
    April 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eduardo JULIAO, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-591
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony J. PRYOR, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D17-1856
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nicole MURPHY, Appellant, v. BANK OF AMERICA CORPORATION, a Delaware corporation; Maxine Potter, an individual; Troy Stratos, an individual; Richard Hack, an individual; and Leslie Zigel, an individual, Appellees.
    No. 4D17-1512
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Scott CHERY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3941
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marvin FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-146
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Norberto VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-433
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Roosevelt KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-526
    District Court of Appeal of Florida, Fourth District.
    [April 26, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    BOCA VIEW CONDOMINIUM ASSOCIATION, INC., and Pointe Management Group, Inc., Appellants, v. Lourenco Oliveira FARIA, Appellee.
    No. 4D17-1934
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ricardo Mancano SILVA, Appellant, v. Priscilla LEMOS, Appellee.
    No. 4D17-1455
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Harriet OPENDEN, Appellant, v. SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellee.
    No. 4D17-1475
    District Court of Appeal of Florida, Fourth District.
    May 3, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jacquelynne O. MILLER, Appellant, v. TOWNE PARK NORTH CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D17-1498
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lisa ZIMMERMAN, Appellant, v. APSEN G, LLC, Appellee.
    No. 4D17-1656
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    AVENTURA BAY HOLDINGS, LLC, and Aventura Bay Villas Corporation, Appellants, v. WELLINGTON LIFE CARE ASSOCIATES, LLC, and Devonshire at Wellington Green, LLC, Appellees.
    No. 4D17-2002
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James LAUGHNER, Appellant, v. SCHOOL BOARD OF MARTIN COUNTY and Laurie J. Gaylord, Superintendent, Appellees.
    No. 4D17-2016
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    FLORIDA GOVERNMENTAL UTILITY AUTHORITY, Appellant, v. Tim PARKER, Property Appraiser of Putnam County and Linda Myers, Tax Collector of Putnam County, Appellees.
    Case No. 5D17-93
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing Denied January 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Vinodh RAGHUBIR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3367
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing Denied January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. CHIROMED INJURY CENTER, P.A. a/a/o Veralucia Campana, Appellee.
    Case No. 5D16-2885
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017 Rehearing and Rehearing En Banc Denied January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Samuel C. SWEETING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2805
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 19, 2017 Rehearing En Banc Denied January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Adriana JARDIM and Jose Gomes Jardim, Jr., Appellants, v. COUNTRY WIDE HOME LOANS, INC., Appellee.
    Case No. 5D17-1868
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing Denied January 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David GRIFFITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3368
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing Denied January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    George L. MOSBY, Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D17-1799
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing Denied January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Emil S. TROMPETER, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-413
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing Denied February 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.S., Mother of M.J., D.J., D.J., A.J., E.J., and L.J., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-3137
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Roy Edwards STEPHENS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4402
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Marcus E. ENSLOW, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4259
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Barry DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1552
    District Court of Appeal of Florida, Fifth District.
    Decision filed December 26, 2017 Rehearing Denied January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    A.K., Mother of M.K., J.K., M.K., A.K., and C.C., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-2438
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joseph BUSCHOR, Appellant, v. Sara Ann BUSCHOR n/k/a Sara Ann Barnes, Appellee.
    Case No. 5D16-4312
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Wesley MCLEOD, Appellant, v. NATIONSTAR MORTGAGE, LLC, Aurora Loan Services, LLC, Bank of America, N.A., Chase Bank USA, National Association f/k/a Chase Manhattan Bank, John M. McLeod, Teri McLeod and Teresa McLeod, Appellees.
    Case No. 5D17-2678
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Willie MCKINNON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1618
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 2, 2018 Rehearing Denied January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John HOLMQUIST, Appellant, v. Jennifer THROPP, Appellee.
    Case No. 5D16-3998
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bobbie FOREHAND, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3320
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Deano S. ESPOSITA, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, et al., Appellees.
    Case No. 5D15-2542
    District Court of Appeal of Florida, Fifth District.
    January 2, 2018 Rehearing and Rehearing En Banc Denied February 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Calvin EATON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3681
    District Court of Appeal of Florida, Fifth District.
    January 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jonathan HICKS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3622
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Marlon D. FLEMING, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3195
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Patrice KERR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3147
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Victor Manuel MACHUCA-DEJESUS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3002
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Alex R. WHALEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2944
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Noel Norberto NINO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2823
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Alexis CASTILLO-DIAZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1110
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christopher JACKSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1043
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Marcus MARTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1012
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John Daniel CROSBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-888
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Adam George LOPES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-880
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anquan R. EVERETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-734
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mitchell Ray WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4295
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Russell C. BRADSHAW, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2729
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Myron GREEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3585
    District Court of Appeal of Florida, Fifth District.
    Decision filed January 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


author: Forst, J.

text:
    Joanne LIUKKONEN, Appellant, v. BAYVIEW LOAN SERVICING, LLC, Appellee.
    No. 4D16-4193
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2018]
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellant.
    Cynthia L. Comras, David Rosenberg and Jarrett Cooper of Robertson, Anschultz & Schneid, P.L., Boca Raton, for appellee.
   Forst, J.

Appellant Joanne Liukkonen appeals a final judgment of foreclosure entered against her and her husband. She contends Appellee Bayview Loan Servicing, LLC, violated the best evidence rule when it introduced mere copies of the loan modifications without explanation. We disagree and affirm. We write to clarify our jurisprudence on this issue and affirm without comment all other issues raised by Appellant.

Background

At trial, Bayview introduced an original note, but only introduced copies of the loan modifications (which affected the interest rates) and offered no explanation as to why it did not produce the originals. Appellant offered no objection at the time, but objected during closing and in her motions to strike and for rehearing. The objections were overruled.

Analysis

We review evidentiary rulings for abuse of discretion. Holt v. Calchas, LLC , 155 So.3d 499, 503 (Fla. 4th DCA 2015). As a preliminary matter, Appellant has waived her best evidence rule objection because she failed to make it contemporaneously with the introduction of the copies. See Johnston v. Hudlett , 32 So.3d 700, 704 (Fla. 4th DCA 2010).

We nevertheless address the merits on this issue to clarify our decision in Rattigan v. Central Mortgage Co. , 199 So.3d 966 (Fla. 4th DCA 2016). There, a bank introduced an original note, but violated the best evidence rule by foreclosing under the terms of a modification without introducing the original or a copy into evidence. We held that "[w]ithout the agreement itself in evidence, testimony regarding the contents of the agreement is not permitted." Id. at 967 (citing J.H. v. State , 480 So.2d 680, 682 (Fla. 1st DCA 1985) ). Therefore, there was no proper evidence to support foreclosure under the terms of the modified note.

We noted in dicta:

The Bank violated the best evidence rule by virtue of its failure to introduce the modification at trial (either the original or a duplicate with an explanation as to why the original note was unavailable, see Deutsche Bank Nat'l Tr. Co. v. Clarke , 87 So.3d 58, 62 (Fla. 4th DCA 2012) ).

Rattigan , 199 So.3d at 967 (citing J.H. , 480 So.2d at 682 ). In J.H. , the court simply held the Health and Rehabilitative Services' failure to introduce an agreement it entered into with a mother-the nonfulfillment of which was the basis for its dependency petitions-violated the best evidence rule. 480 So.2d at 682 (citing § 90.952, Fla. Stat. (1983) ).

The foreclosing bank in Clarke introduced a copy of a promissory note into evidence. Clarke , 87 So.3d at 59. We noted that "[a] duplicate is ... admissible to the same extent as an original," unless "[t]he document or writing is a negotiable instrument as defined in s. 673.1041." Id. at 60 (first and third alterations in original) (quoting § 90.953(1), Fla. Stat. (2010) ). "A promissory note is a negotiable instrument," thus requiring production of the original. Id. at 60-61. We explained the reasons for the exception: (1) the document itself is the source of the obligation, not just the terms; and (2) "surrender removes a note from the stream of commerce, preventing someone else from trying to enforce it against the defendant a second time." Id. at 60-62. Therefore, a foreclosing party must produce and surrender the note or reestablish it to take it out of the stream of commerce or give another "satisfactory explanation" for its failure to produce the original. Id. at 61-62 (quoting State St. Bank & Tr. Co. v. Lord , 851 So.2d 790, 791 (Fla. 4th DCA 2003) ).

Earlier surrender of the note to the court file was "one such 'satisfactory explanation' for failing to produce the original at trial." Id. at 62.

A modification to a note, while "as much a part of the parties' agreement [i.e., its terms] as the original note," Rattigan , 199 So.3d at 967, is not, itself, a negotiable instrument. See § 673.1041, Fla. Stat. (2016) ; see also § 673.1171, Fla. Stat. (2016). Like a mortgage, it "may thus be proved by using a properly authenticated duplicate." Clarke , 87 So.3d at 61 (quoting Perry v. Fairbanks Capital Corp. , 888 So.2d 725, 727 (Fla. 5th DCA 2004) ). No explanation as to why the original was unavailable is required.

Therefore, the trial court correctly admitted copies of the modifications and accompanying testimony. Appellant did not timely challenge their authenticity or the fairness of using copies, § 90.953(2) - (3), Fla. Stat. (2016), thus waiving any such challenge.

Conclusion

Appellant failed to preserve her best evidence rule objection, and she misconstrues the holding of Rattigan . A copy of a modification is admissible to the same degree as an original, as it is not a negotiable instrument as defined in section 673.1041. § 90.953, Fla. Stat. (2016).

Affirmed.

Levine and Conner, JJ., concur.


author: Ciklin, J.

text:
    HSBC BANK USA, as Trustee FOR PHH 2007-2, Appellant, v. David MAGUA; Sylvia J. Magua; Weston Lakes Maintenance Association Inc.; and The Town Foundation, Inc., Appellees.
    No. 4D17-1685
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2018]
    Nicholas S. Agnello, Matt Mitchell and Sabrina Niewialkouski of Burr & Forman LLP, Fort Lauderdale, for appellant.
    Nicole R. Moskowitz of Neustein Law Group, P.A., Aventura, for appellees David and Sylvia J. Magua.
   Ciklin, J.

This appeal arises out of a foreclosure complaint filed by the bank. After a bench trial, the trial court entered a foreclosure judgment in favor of the bank and the homeowners appealed. With respect to that first appeal, the homeowners argued that (1) the bank lacked standing and (2) it failed to prove damages and satisfaction of a condition precedent, as the exhibits used to prove these elements constituted hearsay. In lieu of an answer brief in the first appeal, the bank filed a confession of error which stated that it "confesses to error and does not oppose reversal of the Final Judgment."

Then, as to the first appeal, this court issued an opinion which provided the following: "Appellee confesses error, and does not oppose reversal of the final judgment. After reviewing the record, we agree that the trial court erred, and reverse the final judgment of foreclosure entered by the trial court and remand for further proceedings." Magua v. HSBC Bank USA , 197 So.3d 1274, 1274 (Fla. 4th DCA 2016). On remand, the homeowners moved for and were awarded attorney's fees and costs.

Now on this second appeal, the bank challenges the award of fees and costs awarded following the agreed upon reversal asserting that fees and costs cannot be awarded because the reversal came about upon the bank's confession of error regarding standing. The bank cites a recent opinion of this court, Nationstar Mortgage LLC v. Glass , 219 So.3d 896 (Fla. 4th DCA 2017). There, this court recognized the following:

[T]o be entitled to fees pursuant to the reciprocity provision of section 57.105(7), the movant must establish that the parties to the suit are also entitled to enforce the contract containing the fee provision. A party that prevails on its argument that dismissal is required because the plaintiff lacked standing to sue upon the contract cannot recover fees based upon a provision in that same contract.

Id. at 899.

The bank argues that because this court reversed the final judgment in the first appeal based on the homeowners' argument that the bank lacked standing, the trial court could not award fees based on a provision of the mortgage contract which the bank had no right to enforce. This, the bank argues, has become the "law of the case."

We find the bank's argument fails though because as to the first appeal, the bank confessed error without specification as to which of the two appellate issues it was confessing error. Likewise, this court (without objection or a motion to reconsider or clarify) reversed based on a finding of an unspecified error. Thus, it is not apparent that this court considered the standing issue, a requirement under the law of the case doctrine.

Fla. Dep't of Transp. v. Juliano , 801 So.2d 101, 105 (Fla. 2001) ("The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.").

The bank argues that this court implicitly or necessarily decided the standing issue when it reversed. See id. at 106. ("[T]he law of the case doctrine may foreclose subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court's decision."). However, it cannot be said that this court's reversal equates to an implicit or necessary finding on the standing issue. Clearly, reversal could have been based solely on the second (condition precedent) ground raised by the homeowners. See, e.g., Edmonds v. U.S. Bank Nat'l Ass'n , 215 So.3d 628, 629 (Fla. 2d DCA 2017) (declining to reach remaining issues raised on appeal where reversal was based on dispositive issue of whether bank complied with condition precedent to filing suit). For similar reasons, the bank's judicial estoppel argument is unpersuasive.

Based on the foregoing, we affirm.

Affirmed.

Levine and Klingensmith, JJ., concur.

      The bank also contends that this court's denial of the homeowners' motion for appellate fees in the first appeal must have been based on the bank's lack of standing, and points to the arguments made by the bank in its response to the motion. This court denied the motion before the Glass opinion issued and the order contains no elaboration. We decline to attempt to divine a previous panel's reasons for denying the motion.


author: Warner, J.

text:
    PLANTATION GENERAL HOSPITAL LIMITED PARTNERSHIP, d/b/a Plantation General Hospital, Appellant, v. DIVISION OF ADMINISTRATIVE HEARINGS and Bernard Belzi, individually and as Personal Representative of the Estate of Patricia Belzi, deceased, and as legal guardian and parent of A.B., a minor, Appellees.
    No. 4D16-2652
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Mark Hicks and Mary Gniadek of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Carol Glasgow and John Mauro of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.
    Robert W. Kelley and Bonnie A. Navin of Kelley Uustal, PLC, and Paul R. Regensdorf, High Springs, for appellees.
   Warner, J.

In this appeal from a final arbitration award for a medical malpractice claim involving the death of a woman who was both a wife and mother, the appellants contend that the arbitration panel erred in awarding economic damages for the loss of companionship and guidance to the husband and child. The panel also awarded the maximum statutory limitation as an award for non-economic damages. We reverse the award of economic damages for loss of companionship and guidance, as these are non-economic damages covered by the statutory limitation on such damages. The appellants also claim that the award for lost support should be reversed because of the introduction of inadmissible hearsay state of mind evidence. We affirm the loss of support award, as the evidence was admissible and the award was supported by competent substantial evidence. Because of our partial reversal, we also reverse the attorney's fee award for recalculation.

The Estate of Patricia Belzi and Bernard Belzi (collectively "the Estate"), brought a medical negligence, wrongful death action against Dr. Andrew Agbi and Plantation General Hospital (collectively "the Hospital") alleging that their medical negligence caused the death of Belzi's twenty-four-year-old wife, Patricia, when she was eight months pregnant with their child, Abigail, who survived. After presuit investigation by the Hospital, the parties agreed to voluntary binding arbitration pursuant to section 766.207, Florida Statutes (2014)et seq. , to determine damages. Pursuant to the statute, the damages recoverable in arbitration proceedings are limited to:

(a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(b) Noneconomic damages shall be limited to a maximum of $250,000 per incident ....

§ 766.207(7), Fla. Stat. (2014). Our supreme court has interpreted section 766.207(7)(b) as permitting the $250,000 limit on non-economic damages to apply to each claimant. St. Mary's Hosp., Inc. v. Phillipe , 769 So.2d 961, 967-68 (Fla. 2000).

At the arbitration hearing, the Estate did not seek medical expenses, and the parties stipulated to the maximum $250,000 each in non-economic damages for Belzi and Abigail. The damages issues presented for the arbitration panel to decide were for loss of services, support, and attorney's fees.

The Hospital objected to two facets of the Estate's damage case which form the basis of the issues on appeal. First, it objected to the Estate's economics expert's inclusion of loss of guidance and companionship in the economic losses suffered by Belzi and his daughter, which it contended was an attempt to value non-economic damages for which they were also awarded $250,000 each. Second, it objected to hearsay evidence offered as to Patricia's aspirations and goals. A vocational expert used this evidence in projecting Patricia's occupational trajectory, leading to the amount of lost support calculated by the economics expert.

Both prior to trial and at trial, the Hospital objected to the Estate's expert's testimony regarding calculations on lost companionship and guidance as compensable services. It argued that this was an attempt to circumvent the statutory cap on non-economic damages in medical malpractice arbitrations by labelling non-economic losses of companionship and guidance as "economic," thus seeking a recovery beyond the $250,000 per claimant cap. The Chief Arbitrator overruled the Hospital's objections.

At trial, the Estate's economic expert offered her opinion as to the economic value of the loss of companionship and guidance suffered by Belzi and Abigail. The expert reviewed the statistical data from the National Vital Statistics Reports to determine Patricia's life expectancy and retirement age. She examined how many hours per week Belzi and Abigail would have received "services" from Patricia for "companionship, advice and counsel." She talked to family and friends to determine the time Patricia spent or would have spent on these activities. However, she had no information that Belzi had utilized or was intending to accept "companionship" or "counseling" from third parties as a substitute for his wife's companionship and counsel after her death.

The Estate's expert examined the wage rates that someone would have to pay in the marketplace to hire people to perform services, such as companions and counselors. Her focus was on determining the economic value of the services which were provided by Patricia, which were now lost. For Belzi, she calculated that Patricia and Belzi spent about twenty hours together a week. For Abigail, she calculated various numbers of hours per year based upon Abigail's age. For both Belzi and Abigail, the expert's report identified the source of value for paid companion services as a New Jersey "Market Survey of Long-Term Care Costs, Various MetLife Market Surveys of Nursing Home, Assisted Living, Adult Day Services, and Home Care Costs, and various Genworth Cost of Care Surveys, Home Care Providers, Adult Day Health Care Facilities, Assisted Living Facilities and Nursing Homes." The dollar cost in New Jersey was adjusted for Florida wages.

To calculate the amounts for advice and counsel, the expert averaged the hourly wage of a variety of occupations which offer advice, including: child, family, and school social workers; social and human service assistants; marriage and family therapists; residential advisors; loan officers; tax preparers; post-secondary business teachers; financial managers; self-enrichment education teachers; elementary school teachers; secondary school teachers. She applied this averaged hourly rate to the hours she considered that Patricia would have counseled both her husband and her daughter. She testified that these amounts did not include any emotional loss by Belzi and Abigail. After this presentation, the Hospital again objected, and again the Chief Arbitrator overruled the objection, stating that these elements were part of the economic loss of services. In addition to loss of support, the expert calculated the value of other lost services which the Hospital does not contest.

To determine the economic value of lost support from Patricia, who was twenty-four at the time of her death, the Estate presented the testimony of family and friends as to Patricia's aspirations and goals, to which the Hospital objected but was overruled. The Estate presented a vocational expert who opined the likely vocational path of Patricia had she not died.

Relying on the opinion of the vocational expert, the Estate's economic expert opined as to the present value of lost support to Belzi. The Estate presented a total damage calculation to Belzi and Abigail of $4,010,314, broken down as follows:

Past Years Future Years Total Component of Analysis $ 8,167 $ 1,712,046 $ 1,720,213 adjusted income 29,771 770,935 800,706 household services 32,738 986,382 1,019,120 companionship services to spouse 42,560 231,948 274,507 companionship services to daughter 3,437 86,661 90,098 advice and counsel services to spouse 6,873 75,411 82,285 advice and counsel services to daughter 23,385 - 23,385 funeral expenses __________ ___________ ___________ _______________________________________ $ 146,931 $ 3,863,383 $ 4,010,314 present value of total loss __________ ___________ ___________ _______________________________________

The Hospital presented its own vocational expert and economics expert who calculated lost support at a significantly lower amount (about $625,000 less than the Estate's calculation). After presentation of all the evidence, the arbitration panel awarded the following:

Arbitration Panel Award Past and Present Money Value of Future Loss of Support $1,395,501.08 Past Loss of Household Services $115,379.00 Present Money Value of Future Loss of Household Services $1,696,711.20 Funeral Expenses Claim $23,385.00 Non-economic damages to Bernard Belzi $250,000.00 Non-economic damages to Abigail Belzi $250,000.00 Total Arbitration Award $3,730,976.28

From this award, the Hospital appeals.

I. Standard of Review

The parties dispute the standard of review for arbitration awards. The Hospital contends that an arbitration award under section 766.207, Florida Statutes (2014), constitutes final agency action, and any appeal is governed by section 120.68, as provided in section 766.212(1), Florida Statutes (2014). ("An arbitration award and an allocation of financial responsibility are final agency action for purposes of s. 120.68. Any appeal ... shall be limited to review of the record, and shall otherwise proceed in accordance with s. 120.68."). Relevant portions of section 120.68(7) provide the relevant standards to be applied to this appeal:

(7) The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, as appropriate, when it finds that:
(a) There has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts;
(b) The agency's action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact;
....
(d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action ....

Pursuant to subsection (d), the appellate court reviews an agency's conclusions of law de novo. Estrada v. Mercy Hosp., Inc. , 121 So.3d 51, 54 (Fla. 3d DCA 2013).

The Estate, on the other hand, argues that the court must engage in "limited appellate review of the arbitration award requiring a showing of 'manifest injustice' " to reverse. Univ. of Miami v. Echarte , 618 So.2d 189, 194 (Fla. 1993). Although the supreme court used that phrase in listing the benefits of arbitration under the statute, it was not a holding of the opinion. Moreover, the only place "manifest injustice" appears in the Medical Malpractice Arbitration statute is in section 766.212(2) which provides that an appeal does not stay an arbitration award and that "[t]he district court of appeal may order a stay to prevent manifest injustice, but no court shall abrogate the provisions of s. 766.211(2)." The Estate also cites St. Mary's Hospital, Inc. v. Phillipe , 769 So. 2d 961 (Fla. 2000), which uses the manifest injustice language but in discussing a stay of the arbitration award, thus applying section 766.212(2). It also quoted from Echarte as to the benefits of arbitration, but again, the language is not the holding of the opinion.

The statute provides the standard of review for an arbitration award. The supreme court has never rejected the application of section 120.68(7) in medical malpractice binding arbitration, and we will apply the statutory standard.

II. Inclusion of Companionship and Guidance as Economic Damages

The Hospital argues that the panel's award for lost "household services" erroneously included non-economic damages for lost companionship and lost advice, guidance and counsel, allowing the Estate to do an "end run" around the statutory limit on non-economic damages of $250,000 per claimant. Whether such damages are economic or non-economic is a question of the proper application of the statute, which we review de novo. § 120.68(7)(d), Fla. Stat.

The Florida Legislature amended the Medical Malpractice Act in 2003 to limit the damages recoverable in medical negligence wrongful death arbitration. § 766.207(7)(b), Fla. Stat. Section 766.202(3) and (8), Florida Statutes (2014), define economic and non-economic damages as follows:

(3) "Economic damages" means financial losses that would not have occurred but for the injury giving rise to the cause of action, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.
....
(8) "Noneconomic damages" means nonfinancial losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.

The Wrongful Death Act allows recovery for loss of support and services, but places loss of companionship and guidance within the same category as pain and suffering, which are non-economic damages. As applicable in this case, section 768.21 provides:

(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value ....
(2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.
(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury ....

The supreme court and other courts have also categorized companionship and guidance as non-economic damages. In St. Mary's , the supreme court was asked to determine whether the $250,000 limit per incident on non-economic damages under section 766.207 limited the recovery for all claimants to $250,000 or limited each claimant's recovery to $250,000. In considering the question, the court looked to how "non-economic damages" were treated in other wrongful death cases. It pointed to National Railroad Passenger Corp. v. Ahmed , 653 So.2d 1055, 1056 (Fla. 4th DCA 1995), and an award for "the loss of parental companionship, instruction and guidance, and [for] the child's pain and suffering" for the children of the decedent in that case. St. Mary's , 769 So.2d at 970 (alteration in original). Thus, it equated these losses with non-economic damages. In addition, loss of parental guidance has been held to be an intangible loss. Alamo Rent-A-Car Inc. v. Clay , 586 So.2d 394, 395 (Fla. 3d DCA 1991) ; see also cases cited in " Excessiveness or Adequacy of Damages Awarded for Noneconomic Loss Caused by Personal Injury or Death of Parent ," 61 A.L.R. 4th 251 (1988) (awards in cases for loss of companionship and guidance). Finally, the standard jury instructions inform the jury of the elements of damages recoverable in a wrongful death claim, and include in one element damages for "loss of (decedent's) companionship and protection, and [her] [his] mental pain and suffering as a result of (decedent's) injury and death." See Fla. Std. Jury Instr. (Civ.) 502.2d. Likewise, the standard jury instruction for a child's loss of a parent also combines "loss by (name all eligible children) of parental companionship, instruction and guidance, and [his] [her] [their] mental pain and suffering as a result of (decedent's) injury and death." Fla. Std. Jury Instr. (Civ.) 502.2e. It is clear that the statutory framework equates loss of companionship, protection, and guidance as non-economic damages and thus subject to the statutory limitation on such damages.

At common law, the loss of companionship and protection of a spouse was termed a "loss of consortium." Our supreme court described such a claim as follows:

We are only concerned with loss of consortium, by which is meant, the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage.

Gates v. Foley , 247 So.2d 40, 43 (Fla. 1971). This is separate from the pecuniary losses which a spouse may suffer for loss of services. In Lithgow v. Hamilton , 69 So.2d 776, 778 (Fla. 1954), the court listed the damages recoverable by a husband for the loss of his wife allowable under the common law, including pecuniary services provided by the wife, which the husband "will have to [ ] replace [ ] by hiring services," and loss of consortium. Id. Loss of consortium was not the type of service which was replaced by hiring services, thus the intangible and non-economic nature of those losses.

Similarly, the loss of parental companionship and guidance has always been treated as a non-economic element of damage. In Zorzos v. Rosen , 467 So.2d 305, 308 (Fla. 1985), the supreme court described the authorized damages which a minor can recover under the wrongful death act, which included "tangible losses such as support, and intangible losses such as services and parental companionship, instruction and guidance and mental pain and suffering. " (emphasis added); see also Fla. Std. Jury Instr. (Civ.) 502.2e.

The loss of consortium of a spouse cannot be equated, as the economics expert sought to do in this case, with a paid companion of a nursing home or assisted living patient. To do so denigrates the marital relationship. "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Laird v. State , 342 So.2d 962 (Fla. 1977) (quoting Griswold v. Connecticut , 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ). To suggest that such a relationship can be replaced by a paid companion, thus creating an economic loss, is contrary to all legal precedent; indeed, it goes against social and moral understanding of the unique and special nature of the marital relationship. The same may be said of the loss of companionship and guidance of a parent for a child. While we recognize that the legislative cap of $250,000 for both loss of companionship and pain and suffering may appear woefully inadequate in circumstances of the death of a spouse or parent, the supreme court has held the statute constitutional. See Echarte. Any change in that amount must come from the Legislature.

We therefore hold that loss of companionship and protection for the spouse and loss of parental companionship and guidance for a child are non-economic damages. As such, they fall within the statutory limitation on non-economic damages. See § 766.207(d), Fla. Stat. Because the chief arbitrator overruled the Hospital's objections to the economic expert's testimony regarding loss of companionship, and the award for household services clearly included an award for such services, we reverse and remand for the redetermination of the amount awarded for household services, both past and future. The arbitrators must deduct from that portion of the award any portion in excess of the amount of compensable household services.

II. Lost Support Award

In challenging the arbitrator's award for future loss of support, the Hospital contends that the Chief Arbitrator erred in admitting evidence of Patricia's intentions with respect to her future occupation under the "state of mind" exception to the hearsay rule. See § 90.803(3)(a) 1, Fla. Stat. (2014). The statements were offered to prove her intent and plan, which were relevant to ascertaining her career progression for the purposes of lost support, not to prove the truth of the matter. See e.g. Everett v. State , 801 So.2d 189, 191-92 (Fla. 4th DCA 2001) (noting that an out of court statement may be admissible to prove declarant's state of mind); Blackburn v. Aetna Freight Lines, Inc. , 368 F.2d 345, 348 (3d Cir. 1966) ; Whittle v. Schemm , 402 F.Supp. 1294, 1299 (E.D. Pa. 1975) ; Covell v. Colburn , 308 Mich. 240, 13 N.W.2d 275, 277 (1944), overruled in part by Thompson v. Ogemaw Cty. Bd. of Rd. Comm'rs , 357 Mich. 482, 98 N.W.2d 620 (1959) ; cf. Overstreet v. Shoney's, Inc. , 4 S.W.3d 694, 705 (Tenn. Ct. App. 1999) (noting that a student's career plans are relevant in determining his or her lost earning capacity). In addition, competent substantial evidence supported the arbitrator's award. Therefore, we must affirm. See § 120.68(10), Fla. Stat. ("If an administrative law judge's final order depends on any fact found by the administrative law judge, the court shall not substitute its judgment for that of the administrative law judge as to the weight of the evidence on any disputed finding of fact."); Heifetz v. Dep't of Bus. Regulation , 475 So.2d 1277, 1281 (Fla. 1st DCA 1985) ("It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.")

III. Attorney's Fees.

Section 766.207(7)(f), Florida Statutes (2014), governs attorneys' fees in arbitration proceedings and states that "[t]he defendant shall pay the claimant's reasonable attorney's fees and costs, as determined by the arbitration panel, but in no event more than 15 percent of the award, reduced to present value." The chief arbitrator awarded fifteen percent of the total amount of the award, without receiving any documentation of what a reasonable award should be. However, prior to the arbitrators' deliberations, the chief arbitrator asked whether both parties agreed to a fifteen percent fee, and the Hospital's attorney accepted. The Hospital first objected to the fee in its motion for rehearing, but new matters may not be addressed in a motion for rehearing. See Best v. Educ. Affiliates, Inc. , 82 So.3d 143, 146 (Fla. 4th DCA 2012). Therefore, we find the Hospital's challenge to the amount is unpreserved. Nevertheless, because we have reversed the arbitration award for recalculation, we also reverse the attorney's fees award for recalculation based upon any new award entered in accordance with this opinion.

Conclusion

For the foregoing reasons, we reverse, in part, the arbitration award. We direct that the panel reconsider and remove from the past and future loss of household services any amounts for loss of companionship and guidance for either Belzi or his daughter Abigail. After readjusting the award, the panel should then recalculate the attorney's fee award.

Reversed in part; remanded with instructions.

Taylor and Damoorgian, JJ., concur.

      The Estate's expert allocated a total of $800,706 for these services, while the Hospital's expert allocated a total of $712,046 for these services.


author: Per Curiam.

text:
    Ross Jay LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-534
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2018]
    Ross Jay Lawson, Lowell, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Fitzpatrick v. State , 868 So.2d 615 (Fla. 2d DCA), rev. denied , 891 So.2d 550 (Fla. 2004).

Ciklin, Levine and Forst, JJ., concur.


text:
    Fred GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3527
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2018]
    Fred Gray, Quincy, pro se.
    No appearance for appellee.
   Per Curiam.

Fred Gray appeals the trial court's order summarily denying his Rule 3.850 motion for postconviction relief. Gray claims that he does not qualify for sentencing as a prison release reoffender (PRR) because the crime for which he received the PRR sentence was committed more than three years after he was released from prison. We affirm and write to certify conflict with Lewars v. State , 42 Fla. L. Weekly D1098, --- So.3d ----, 2017 WL 1969691 (Fla. 2d DCA May 12, 2017), rev. granted, 2017 WL 4022360 (Fla. Sept. 13, 2017).

Appellant pled no contest in two cases of burglary of a dwelling (as well as other charges), occurring on August 15 and 16, 2014. He was sentenced as a PRR for these crimes. He later moved pro se to correct an illegal sentence, which motion was denied. He then moved for postconviction relief, contending that he did not qualify as a PRR. The trial court denied relief. In its order the court provided the following statement of facts:

In the instant motion, Defendant alleges that his designation as a prison releasee reoffender is illegal because the burglaries in the instant cases were committed more than three years after he was released from prison following his completion of two previous sentences for two other burglaries in case nos. 96-19656CF10A and 96-20930CF10A.
Section 775.082(9)(a)(1), Florida Statutes, provides that a defendant is defined as a "prison releasee reoffender" when he or she commits an enumerated felony (including burglary of a dwelling) "within 3 years after being released from a state correctional facility operated by the Department of Corrections ... following incarceration for an offense for which the sentence is punishable by more than 1 year in this state." (Emphasis added.)
The record reveals that on February 1, 2011, Defendant received a conditional release from prison for case no. 96-19656CF10A, even though his sentence in case no. 96-20930CF10A was not fully served, and it is unclear why he was released. Nonetheless, on June 29, 2011, a warrant was issued against Defendant for a parole violation (for new offenses and arrests), and on August 17, 2011, he was reincarcerated (in the Broward County Jail) and resumed serving his sentence in case no. 96-20930CF10A. On March 5, 2012, Defendant completed his sentence in case no. 96-20930CF10A and was released (from the Broward County Jail). While the burglaries in the instant cases, committed on August 15-16, 2014, occurred less than three years from the date of his release on March 5, 2012, Defendant argues that because he was incarcerated in the Broward County Jail from August 17, 2011, through March 5, 2012, and was never transferred back to a state prison, this portion of his incarceration was not in a "state facility operated by the Department of Corrections" pursuant to section 775.082(9)(a)(1), Florida Statutes ; as such, he argues that his previous release date of February 1, 2011, which is more than three years before he committed the burglaries in the instant cases, should control, and, if the date of February 1, 2011, controls, he would not qualify as a prison releasee reoffender.

(Emphasis in original, footnote omitted).

The trial court denied relief based on Taylor v. State , 114 So.3d 355, 355-56 (Fla. 4th DCA 2013), in which this court held that a defendant's release from federal custody while in county jail to perform substantial assistance constitutes constructive release from a federal correctional facility for purposes of the PRR statute, adopting the reasoning of Louzon v. State , 78 So.3d 678, 680-81 (Fla. 5th DCA 2012).

We affirm the denial of relief and hold that appellant was constructively released from state custody when he was released from the Broward County Jail. We continue to adhere to Taylor . See also State v. Wright , 180 So.3d 1043, 1045 (Fla. 1st DCA 2015) (finding that a defendant's release from county jail constituted constructive release from the Department of Corrections' custody for purposes of PRR sentencing).

We recognize that in Lewars , the Second District held that the PRR statute, section 775.082(9)(a)(1), Florida Statutes, does not allow for constructive release and requires release from a Department of Corrections facility, not a county jail, to be within three years of the qualifying PRR offense. 42 Fla. L. Weekly D1098 at *2, --- So.3d at ----. Therefore, under Lewars , appellant could not be sentenced as a PRR.

We affirm and certify conflict with Lewars, noting that the supreme court has accepted jurisdiction to resolve this issue.

Affirmed.

Warner, Conner and Kuntz, JJ., concur.


text:
    Marlowe D. ROBINSON, Appellant, v. BROWARD COUNTY SCHOOL DISTRICT, Appellee.
    No. 4D17-2570
    District Court of Appeal of Florida, Fourth District.
    [April 18, 2018]
    Marlowe D. Robinson, Lauderhill, pro se.
    Elizabeth W. Neiberger and Denise M. Heekin of Bryant Miller Olive, P.A., Miami, for appellee.
   Per Curiam.

Affirmed. See Caldwell v. Board of Trustees Broward County Community College , 858 So.2d 1199 (Fla. 4th DCA 2003).

Gerber, C.J., Damoorgian and Klingensmith, JJ., concur.


author: Gross, J.

text:
    John H. JERVIS and Linda Jervis, individually and as husband and wife, Appellants, v. Jose CASTANEDA and GEICO General Insurance Company, Appellees.
    No. 4D17-332
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Kara Berard Rockenbach of Link & Rockenbach, P.A., West Palm Beach, Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, Daniel G. Williams of Gordon & Doner, P.A., Palm Beach Gardens, and Jeffrey M. Liggio and Geoff S. Stahl of Liggio Law, P.A., West Palm Beach, for appellants.
    Suzanne Youmans Labrit and James P. Terpening, III of Shutts & Bowen LLP, Tampa, Francis A. Zacherl, III of Shutts & Bowen LLP, Miami, and Amber Stoner of Shutts & Bowen LLP, Tallahassee, for appellees.
   Gross, J.

The core issue in this case is whether an insurance company that completely fails to comply with the written notice provisions of section 627.727(1) & (9), Florida Statutes (2010), is entitled to establish that an insured knowingly rejected stacked coverage or knowingly accepted non-stacked uninsured motorist coverage. We hold that the failure to serve the mandatory notice precludes the insurance company from claiming that the insured orally made a knowing choice regarding the stacking of UM coverage.

Appellant John Jervis purchased uninsured motorist coverage from Geico General Insurance, Co. for two vehicles. He completed an online form which, in the circuit court, Geico argued was an election of non-stacked coverage. The first circuit judge assigned to the case ruled on summary judgment that Geico's online form was void; the form was not actually signed by Jervis, Jervis had no ability to reject or deselect non-stacked coverage, and the signing page did not have the warning language required by statute. The judge ruled:

The Court has determined as a matter of law that the documentation used by GEICO does not comport with Florida statute 627.727 which requires that the insured be provided a form that in twelve (12) point type contains certain warnings. It further provides that this form is to be signed by the insured. If it is signed, then it is conclusively presumed that there was an informed knowing of rejection of coverage or election of lower limits. The court finds that the form containing the twelve (12) point bold type was not actually signed by the insured. The page on which the act of signing took place did not have any required warning language. It incorporated the warning by reference. It was not electronically possible to actually sign on the M9 form. One must sign on a precursor screen.
Therefore the M9 waiver of uninsured motorist coverage is void.
Secondly, the signer had no electronic ability to deselect the form's preselected waiver of stacked UM coverage. By law the presumption is that there is no waiver but this form defeats the presumption. The insured's only choices were to passively accept or else to cancel.
Therefore the M9 waiver of uninsured motorist coverage is void.

Geico has not challenged this order on appeal. After summary judgment was granted, Geico amended its affirmative defenses to assert that Jervis "made an oral rejection of stacked UM coverage."

The case went to a jury trial on the oral rejection issue and the jury ruled in favor of Geico.

Section 627.727, Florida Statutes, lays certain ground rules for UM coverage. Subsection 627.727(1) sets the parameters for an insured's written rejection of UM coverage or selection of lower uninsured limits than the bodily injury liability limits of a policy. In great detail, the statute sets out the mandatory procedure for an insured's rejection of UM coverage or selection of lower limits:

The rejection or selection of lower limits shall be made on a form approved by the office. The form shall fully advise the applicant of the nature of the coverage and shall state that the coverage is equal to bodily injury liability limits unless lower limits are requested or the coverage is rejected. The heading of the form shall be in 12-point bold type and shall state: "You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully." If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds. The insurer shall notify the named insured at least annually of her or his options as to the coverage required by this section. Such notice shall be part of, and attached to, the notice of premium, shall provide for a means to allow the insured to request such coverage, and shall be given in a manner approved by the office. Receipt of this notice does not constitute an affirmative waiver of the insured's right to uninsured motorist coverage where the insured has not signed a selection or rejection form.

Id. (emphasis added). The nine "shalls" in the statute lead to the conclusion that the written notice is a mandatory prerequisite to an insured's waiver of the right to UM coverage.

Similar to the mandatory requirements of subsection (1), subsection 627.727(9) contains mandatory requirements for the way that insurers can avoid the judicial doctrine of stacking:

(9) Insurers may offer policies of uninsured motorist coverage containing policy provisions, in language approved by the office, establishing that if the insured accepts this offer:
(a) The coverage provided as to two or more motor vehicles shall not be added together to determine the limit of insurance coverage available to an injured person for any one accident....
* * *
In connection with the offer authorized by this subsection, insurers shall inform the named insured, applicant, or lessee, on a form approved by the office, of the limitations imposed under this subsection and that such coverage is an alternative to coverage without such limitations . If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations....

§ 627.727(9), Fla. Stat. (2010) (emphasis added). Subsection (9) mandates notice to the insured in writing, on a form approved by the Office of Insurance Regulation, of the limitations allowed by the subsection.

Over the years, the legislature has created a statutory framework that promotes UM coverage. See Quirk v. Anthony , 563 So.2d 710, 714 (Fla. 2d DCA 1990). It is desirable for motorists to self-insure against potential loss rather than look to state taxpayers for financial assistance after an auto accident. In section 627.727, the legislature made plain its desire that insureds make "informed" and "knowing" decisions about UM coverage. § 627.727(1), (9), Fla. Stat.

To the average insurance consumer, thinking about UM stacking is as enjoyable as a dramatic reading from the Internal Revenue Code. So that the insured need expend only minimal effort at becoming fully informed, the statute requires certain information, in writing, to be placed before an insured's eyes as a mandatory prerequisite to an "informed" and "knowing" decision about UM coverage. We described this mandatory notice requirement in Government Employees Ins. Co. v. Douglas , 627 So.2d 102, 103 (Fla. 4th DCA 1993) :

[P]ursuant to [ section 627.727 ], to limit coverage validly, the insurer must first satisfy the statutorily mandated requirements of notice to the insured and obtain a knowing acceptance of the limited coverage.

(Emphasis added). In affirming Douglas , the Supreme Court echoed our discussion of the mandatory notice requirement of section 627.727 :

As recognized by the Fourth District Court of Appeal, to limit coverage validly, the insurer must satisfy the statutorily-mandated requirement of notice to the insured and obtain a knowing acceptance of the limited coverage. An insurer who provides coverage with the section 627.727(9)(d) limitation is also statutorily required to file revised, decreased premium rates for such policies.
It is our opinion that these requirements were the quid pro quo given by the legislature to insurers for the right to limit uninsured motorist coverage by this exclusion. As further recognized by the Fourth District in its opinion in this case, if the policy exclusion is valid despite noncompliance with the statute, the provision of section 627.727(9)(d) is rendered meaningless.

Government Employees Ins. Co. v. Douglas, 654 So.2d 118, 120-21 (Fla. 1995) (emphasis added).

The record in this case is that Geico's notice was void, which means that, in the eyes of the law, there was no section 627.727 notice at all. Without such notice, there can be no informed and knowing acceptance of the limitations on stacking. To allow an insurance company to prove that an insured orally and knowingly rejected stacked coverage in the absence of the statutory notice would undermine the legislature's determination that such written notice is mandatory. The summary judgment ruling in this case conclusively established that the notice was void. Jervis's second motion for summary judgment should have been granted, obviating the necessity of a trial. Similarly, at the jury trial, Jervis's motion for directed verdict should have been granted.

We do not find Belmont v. Allstate Ins. Co. , 721 So.2d 436 (Fla. 5th DCA 1998), to be controlling. That case involved a policy issued in 1991, where the insurance company provided a section 627.727 notice in the form "recommended by the insurance commissioner." Id . at 437 n.1. That notice provided that the insured's selection of any option regarding UM coverage applied to "future renewals or replacements of such policy which are issued at the same bodily injury liability limits." Id. A later policy increased bodily injury liability limits. On summary judgment, the trial court held that the insured's initial non-stacking election under the 1991 policy controlled the later policy. Id. at 437.

Relying on the language of the initial notice, the Second District reversed, holding that because the coverage limits had increased, the insured was "entitled to stacked coverage unless Allstate can establish that the [insured] waived the right to a written rejection by making an oral, knowing rejection of non-stacked coverage. Id. at 438.

We do not apply Belmont here for two reasons. First, Belmont involved an initial notice that complied with section 627.727 ; in this case there was no notice. Second, Belmont based its decision on "the contract language in Allstate's form," not on the requirements of section 627.727. Id. at 438 n.2. Our decision is based on the language of the statute. Nothing in Belmont indicates that it turns on the absence of a statutory notice before the initial purchase of a policy. We note that the 2010 version of the statute appears to place the burden on the insured to request a UM coverage change on subsequent policies, and pay for such increased coverage, after the insured accepted coverage limitations, with proper notice, on an earlier policy. See n.4. Thus if the Belmont fact situation had occurred in this case, without the crucial language in its initial 627.727 notice, Allstate could successfully argue that where the company gave proper notice prior to the insured's initial selection of UM limitations, the burden was on the insured to request an increase in stacking or UM coverage on a renewal policy, and pay the increased premium, where bodily injury liability limits had increased.

We also decline to follow Muhammed v. Allstate Ins. Co. , 582 So.2d 768 (Fla. 3d DCA 1991). That one paragraph decision involved a notice form that "arguendo departs from the one statutorily provided by section 627.727." Id. at 768. There is too little description of the notice to determine if it is analogous to the void notice in this case.

For these reasons, we reverse the final judgment in favor of Geico and remand for the entry of a final judgment in favor of appellants entitling appellants to stacked UM coverage.

Warner and Levine, JJ., concur.

      As Geico correctly points out, the 2010 version of section 627.727 applies here. See Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla. 1996) ("[T]he statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.").

      "Stacking is a judicial creation, based on the common sense notion that an insured should be entitled to get what is paid for.... Thus, if the insured pays separate premiums for uninsured motorist protection on separate vehicles, the insured should get the benefit of coverage for each individual premium paid." United Servs. Auto. Ass'n v. Roth , 744 So.2d 1227, 1229 (Fla. 4th DCA 1999) (internal citation omitted).

      See § 624.05(3), Fla. Stat. (2010) (defining "Office" as used in the Insurance Code).

      The 2010 version of section 627.727(9) gives effect to an initial acceptance of UM limitations, even where later policy limits are increased:
      When the named insured, applicant, or lessee has initially accepted such limitations, such acceptance shall apply to any policy which renews, extends, changes , supersedes, or replaces an existing policy unless the named insured requests deletion of such limitations and pays the appropriate premium for such coverage.
      (Emphasis added).
      Under this statute, the insured would be precluded from arguing that he or she requested different coverage on a replacement policy unless the appropriate premium for such coverage had been paid. See Roth , 744 So.2d at 1230.


text:
    Jermaine BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2428
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2018]
    Jermaine Brown, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
    ON MOTION FOR REHEARING
   Per Curiam.

Upon consideration of appellee's motion for rehearing, we grant the motion and withdraw this Court's opinion dated February 28, 2018. The attached opinion is substituted therefore.

Jermaine Brown appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant alleged eight claims in his motion. We reverse the portion of the post-conviction court's order that denied ground six and remand to allow appellant an opportunity to amend this claim. We affirm, without further discussion, the court's summary denial of the remaining claims.

Appellant was convicted of aggravated battery and simple battery following a jury trial. The trial court sentenced him to a twenty year prison term for the aggravated battery with a ten year mandatory term as a habitual violent felony offender and time served for the simple battery. This Court affirmed his direct appeal. Brown v. State , 133 So.3d 941 (Fla. 4th DCA 2013).

Appellant timely filed a rule 3.850 motion raising eight grounds. In ground six, he claimed that trial counsel was ineffective for misadvising him to reject a favorable plea offer to a 58.4 month prison term. He alleges that counsel told him that the case boiled down to a credibility call and the victim's initial "waiver of prosecution form" could serve to impeach her. Appellant alleges further that counsel told him that the State could not win under the circumstances and that the plea offer was excessive. Allegedly relying on this advice, he rejected the plea offer. Alcorn v. State , 121 So.3d 419 (Fla. 2013).

The Florida Supreme Court has held that a claim that counsel was ineffective for advising the defendant to reject a plea offer because counsel was confident that she could win at trial was insufficient. Morgan v. State , 991 So.2d 835, 841 (Fla. 2008), rev'd on other grounds , Alcorn , 121 So.3d at 419 (Fla. 2013). Morgan reasoned, "[t]he mere fact that [the defendant] did not prevail at trial does not translate into misadvice. Some specific deficiency on the part of counsel must be alleged." Id. While a specific deficiency was lacking in Morgan, here appellant alleged a specific deficiency tied to counsel's value of the waiver of prosecution as evidence to impeach the victim.

However, the State is correct that appellant failed to allege two of Alcorn's four pleading requirements. Specifically, appellant failed to allege that the State would not have withdrawn the offer, and that the trial court would have accepted the offer. Ramos v. State , 141 So.3d 643, 644 (Fla. 4th DCA 2014) ("His claim is also facially insufficient under Alcorn because he does not state that the prosecutor would not have withdrawn the offer and that the court would have accepted it."); Armstrong v. State , 148 So.3d 124, 126 (Fla. 2d DCA 2014) ("Armstrong failed to allege that the prosecutor would not have withdrawn the offer and that the court would have accepted it."). We are bound by Alcorn and its pleading requirements.

Because the pleading defects may be correctable, appellant should be given the opportunity to do so. See Drakus v. State , 219 So.3d 979, 982 (Fla. 1st DCA 2017) (reversing the portion of the trial court's order summarily denying the appellant's claim, not on the merits, as found by the trial court, but because the claim was facially insufficient); see also Spera v. State , 971 So.2d 754, 761 (Fla. 2007) (holding that a defendant who files a legally insufficient 3.850 motion for failing to meet pleading requirements should be allowed at least one opportunity to amend the motion); Fla. R. Crim. P. 3.850(f).

Therefore, we reverse the summary denial and remand with directions for the trial court to provide appellant sixty days to amend claim six of his motion, if he can do so in good faith. We affirm the summary denial of the remaining claims.

Affirmed in part, reversed in part and remanded with directions.

Levine, Conner and Klingensmith, JJ., concur.

      Alcorn , 121 So.3d at 430 (holding that to adequately allege prejudice when a defendant is claiming ineffective assistance of counsel during the plea process, the defendant must allege "that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed").

      We recognize language that could suggest otherwise in Clark v. State , 236 So. 3d 481, 483 (Fla. 4th DCA 2018) and Jacques v. State , 193 So.3d 1065 (Fla. 4th DCA 2016). However, close review of those cases reflects that the state did not challenge the motion as legally insufficient because of this pleading defect.


text:
    Garfield S. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-138
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2018]
    Garfield S. Jones, Okeechobee, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Thomas v. Dugger, 548 So.2d 230 (Fla. 1989) ;

IndyMac Fed. Bank FSB v. Hagan, 104 So.3d 1232, 1236 (Fla. 3d DCA 2012).

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


text:
    Jean Ernst JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3766
    District Court of Appeal of Florida, Fourth District.
    [May 9, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   Per Curiam.

In this Anders appeal, we affirm the trial court's disposition and sentence in appellant's violation of probation proceeding. However, we remand for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated. See Clark v. State , 201 So.3d 799, 799 (Fla. 4th DCA 2016). The judge specified those conditions on the record, but a written order is required to incorporate those findings.

Affirmed and remanded with instructions.

May, Levine and Klingensmith, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).