text:
    TWO ISLANDS DEVELOPMENT CORP., et al., Appellants, v. David L. CLARKE, et al., Appellees.
    No. 3D16-388
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018.
    Waldman Barnett, Glen H. Waldman, Eleanor T. Barnett and Michael A. Azre, for appellants.
    Kubicki Draper, Caryn L. Bellus and Barbara E. Fox ; Conroy Simberg, and Hinda Klein and Dale Friedman ; Wicker Smith O'Hara McCoy & Ford, Alyssa M. Reiter and Lindsey A. Hicks ; Coffey Burlington and Susan E. Raffanello ; Boyd Richards Parker & Colonnelli, James K. Parker and Craig J. Shankman ; Cole Scott & Kissane, Scott A. Cole and Lissette Gonzalez ; Egozi & Bennett, Bernard L. Egozi and Isaac S. Lew ; The Arthur Firm and Arthur J. Jones, for appellees.
    Before SUAREZ, EMAS and LOGUE, JJ.
   EMAS, J.

INTRODUCTION

Appellants, the plaintiffs below, appeal the trial court's final order dismissing, with prejudice, all counts against all defendants.

For the reasons that follow, we reverse the trial court's order dismissing with prejudice all counts against the Williams Island Defendants, as plaintiffs had already voluntarily dismissed those defendants prior to the trial court's entry of a written order of dismissal. We also reverse the trial court's order dismissing with prejudice Count IV against individual South Island defendants Feder, Sawicki, Kleiman and Coba.

Finally, we affirm the trial court's order dismissing with prejudice counts I, II and III against the South Island Defendants, and dismissing with prejudice Count V against South Island defendant Feder.

RELEVANT FACTS AND PROCEDURAL BACKGROUND

The Parties

This appeal concerns three islands located in Aventura, Florida-Williams Island, the North Island, and the South Island, and associated groups of appellees, who are the defendants below:

Williams Island is the westernmost island with a singular road and bridge connecting it to the South Island. That same road connects the South Island by bridge to the North Island. Williams Island consists of residential homes and the owners of these residential homes are referred to in the instant case as the "Williams Island Defendants." By virtue of their ownership of homes on Williams Island, they are members of the Williams Island Property Owners' Association (the "WIPOA").

The South Island consists of single family residential homes known as "Island Estates." The owners of these residential homes are referred to as the "South Island Defendants." By virtue of their ownership of homes on the South Island, they are members of the Island Estates Homeowners' Association (the "IEHOA").

The dispute giving rise to this appeal, however, surrounds the development, construction, marketing and sale of a sixteen-story, two-tower building of condominiums on the North Island known as Príve at Island Estates. The South Island and the North Island will be referred to collectively as "the Two Islands."

The appellants/plaintiffs below consist of the following:

-Gary Cohen, in his individual capacity, owns a home on the South Island. Cohen is also successor Trustee of Trust No. 75-LT-21 (the "Trust") which is the owner of the North Island. Cohen controls Two Islands Development, NI Holdings and Last Lot.
-Two Islands Development Corp. is the developer of the South Island.
-NI Holdings, LLC owns submerged land adjacent to the islands.
-Last Lot Corp. owns the sole remaining undeveloped lot on the South Island.
-Príve Developers, LLC ("Príve Developers"), is the developer currently developing Príve at Island Estates on the North Island.
-BH3 Realty, LLC is in charge of the marketing and selling of the condominiums currently under development.

The Allegations

Appellants' Amended Complaint includes the following allegations:

In 1976, the Cohen family secured a final judgment in Miami-Dade County Circuit Court, which granted the Cohen family certain rights related to the development of the Two Islands and compelled Miami-Dade County to rezone them according to certain stated limitations in the judgment. In 2006, the City of Aventura executed and recorded a "Vested Rights Determination Agreement" that reaffirmed the extent of the vested rights for the Two Islands.

Cohen has served as president of the IEHOA since its inception. In 2011, residents of the South Island expressed an interest in having access to the anticipated amenities that would be included in the development on the North Island. In January 2013, after consulting with counsel, Cohen prepared and presented a plan to the other homeowners of the South Island for their consideration of a Shared Maintenance Association. The plan was emailed to the homeowners with a notice of an upcoming meeting where the plan would be subject to a vote. Also included in the email were details of the planned development on the North Island and a draft of the Easement, Operating and Development Agreement (the "EODA"), which agreement was necessary for creating the Shared Maintenance Association.

The meeting for the vote on the Shared Maintenance Association was initially scheduled for February 21, 2013, but some homeowners expressed that they needed more time to consider the plan and materials submitted. At their request, Cohen continued the meeting and the vote to February 28, 2013. At the February 28 meeting, the Shared Maintenance Association and plans contained therein were approved by a vote of 11-0, with the balance of the eligible homeowners electing to exercise their right not to vote. Pursuant to the vote, on March 7, 2013, Cohen-in his capacity as president of the IEHOA, the trustee of the Trust, and president of Two Islands Development-executed the EODA. Relevant to this appeal, the EODA (attached as an exhibit to the complaint) provides:

D. Two Islands, Association and Trust, and their respective successors (each a "Party " and collectively, the "Parties ") desire to grant, re-grant or re-affirm, as applicable, easements (each an "Easement Area " and collectively the "Easement Areas ") over certain portions of the North Island and the South Island, for the mutual benefit of the Parties, as well as for the benefit of the owners (each a "Parcel Owner " and collectively, the "Parcel Owners ") of the individual single-family homes ("Dwellings ") and/or condominium units ("Units ") now or hereafter located within the South Island or the North Island (collectively, the "Properties "), including (without limitation), easements from Two Islands and the [IEHOA] which are being granted pursuant to Section 1(d) of Article IV of the Island Estates Declaration.

The EODA contains the following covenants at issue:

13. Covenants of Further Assurances. From time to time, at the request of any of the Parties or Associations, the other Parties or Associations shall, without further consideration, promptly agree to execute and deliver any and all other instruments which may be reasonably arising hereunder, including but not limited to any additional easements and other instruments required for the location, installation, construction, maintenance, repair and/or replacement of any and all facilities for water, sewer, electric, other public utilities and surface water management relating to all or any portion of the Properties, and any and all governmental applications, permits, approvals and covenants required in connection with the development, maintenance and operation of any portion of the Properties.
15. Reservation of Development and Other Rights; Ratification of Easements .... The Associations each agree, on their own behalf and on behalf of their respective members, to execute any joinders, consents, applications, permits, easements, unity of title, declaration or covenant running with the land in lieu of unity of title, or other documents which may be necessary or desirable to obtain or transfer any governmental approvals in connection therewith, and to otherwise fully utilize, enjoy or transfer the Development Rights.... The Parties hereto ratify and reaffirm the easements set forth in the Island Estates Declaration and all easements or rights of record affecting the South Island as of the date of this Agreement, as recorded in the Public Records of Miami-Dade County.
17. Covenants Running with the Land. The easements hereby granted, the restrictions hereby imposed, and the agreements herein contained shall be easements, restrictions and covenants running with the land and shall inure to the benefit of and be binding upon the Associations, the Marina Slip Holders and the Parties hereto, and their respective heirs, successors and assigns, including, but without limitation, all subsequent owners of portions of the Properties and all persons claiming under them.

Appellants alleged that, in reliance in part on the EODA, Príve Developers proceeded with the development of the Príve at Island Estates on the North Island. Also in reliance in part on the EODA, Príve Developers took steps toward preselling condominium units. As of the filing of the Amended Complaint, 79 of the 160 units had been sold with approximately $222 million in sales under contract with a total amount of approximately $63 million being held in escrow for the purchasers who were originally told to expect delivery of their units by the first quarter of 2016, but now will not take possession until the second quarter of 2017.

Appellants also alleged that the Williams Island Defendants purchased their properties subject to the vested rights to build high-rise condominium buildings on the North Island and subject to express contracts recorded in the public records and included in their title policies, including one titled "Agreement Not to Object," which prohibits the Williams Island Defendants from objecting to development on the North Island, and requires their cooperation if needed.

Appellants alleged that, despite having agreed to the EODA and the Agreement Not to Object, the South Island Defendants and the Williams Island Defendants breached their obligations and have taken steps to protest or otherwise interfere with the development of the North Island. Specifically, this lawsuit is the fifth in a series of cases in the trial court arising from the development of the North Island, which includes:

1. Clarke, et al. v. Two Islands Dev. Corp., et al., lower court case number 14-21513 (the "Trespass Action").
2. Island Estates Homeowners Ass'n, Inc. v. Two Islands Dev. Corp., Gary Cohen as Trustee of Trust No. 75-LT-21 , and NI Holdings, LLC, lower court case number 13-35005 (the "IEHOA Action").
3. Príve Dev., LLC v. City of Aventura, lower court case number 15-000898.
4. Williams Island Prop. Owners Ass'n Inc. v. City of Aventura, lower court case number 13-015004 (the "Vested Rights Action").

Appellants allege that by failing to abide by their agreements and choosing instead to protest the development of Príve at Island Estates by instituting lawsuits, lobbying city officials, and interfering in and preventing a settlement of the Vested Rights Action, appellees improperly caused significant delays to the project. Príve Developers alleges that, as a result of these lawsuits and protests, appellants incurred unnecessary expenses and lost sales due to potential buyers' concerns about the pace of the construction and the uncertainty of ongoing litigation. Appellants also allege that these unforeseen delays caused by appellees' breaches have damaged Príve Developers' reputation.

The Causes of Action

Accordingly, appellants filed their original complaint (and an amended complaint) seeking $30,000,000 in alleged damages from appellees. The Amended Complaint contains the following claims:

Count I: Breach of covenant against the South Island Defendants;
Count II: Specific performance of covenant against the South Island Defendants;
Count III: Breach of the duty of good faith and fair dealing against the South Island Defendants;
Count IV: Slander of title against individual South Island defendants Feder, Sawicki, Kleiman and Coba;
Count V: Tortious interference with settlement agreement against Feder and the Williams Island Defendants.

In response, all appellees filed motions to dismiss the Amended Complaint and adopted various arguments advanced in the motions to dismiss filed by other appellees. Appellants filed an omnibus response to the motions to dismiss.

On December 3, 2015, the day before the hearing scheduled on the motions to dismiss, the Williams Island Defendants filed a joint notice to defer the hearing on their motions to dismiss the Amended Complaint, but the trial court went ahead with the hearing the next day. At the conclusion of the hearing, the trial court found the following:

The Court has had an opportunity to review all of the defendants' motion to dismiss. And I reviewed the response, as well, of the plaintiff, the omnibus response. I have looked at the amended complaint. Also I've looked at the [the EODA], which we all know is operative as far as some critical issues in this case.
At this time the Court grants the motion to dismiss.
First I'm going to refer to [the EODA] ....
I have actually looked at, during the course of this argument, [the EODA] and the three operative pages that has only Mr. Gary Cohen's signature I find cannot bind or bound the defendants, the individual defendants to this contract.
It's for that reason-one of the reasons why I dismissed this case against these individual defendants, because they did not enter this contract, they are not, as the Court finds, a party to this contract and cannot be legally obligated to abide by it.
I do also find, based on this Court's familiarity with this case, that the litigation privilege and the anti-SLAPP privilege applies in this case.
So all counts are dismissed ... with prejudice.

On December 23, 2015, after the trial court's oral ruling, but before the final order of dismissal was entered, appellants filed a notice of voluntary dismissal of the Amended Complaint without prejudice as to the Williams Island Defendants.

On January 13, 2016, the trial court entered its written final order of dismissal. The order provides that the trial court reviewed "all of the motions to dismiss and joinders filed by all the Defendants (including the Williams Island Defendants)" and that the court finds "that none of the Defendants signed [the EODA]" and because of that "they are not parties to it, they are not bound by it, and they have no legal obligations under it." The order further states "that the litigation privilege and anti-SLAPP statute ( § 720.304, Fla. Stat. (2015) ) apply to the claims asserted in the Amended Complaint." The order concluded that the case is dismissed "in its entirety with prejudice as to all Defendants." (Emphasis added.)

This appeal follows.

ANALYSIS

This Court reviews de novo the trial court's final order dismissing appellants' Amended Complaint with prejudice, Schilling v. Herrera, 952 So.2d 1231, 1234 (Fla. 3d DCA 2007), and the well-pleaded allegations in the complaint must be accepted as true for the purposes of a motion to dismiss and for our review of the trial court's order of dismissal. Morin v. Fla. Power & Light, 963 So.2d 258, 260 (Fla. 3d DCA 2007).

1. Whether the trial court erred in entering its written order dismissing the amended complaint as to the Williams Island Defendants, where appellants had already voluntarily dismissed those defendants as parties to the action.

A hearing was scheduled for December 4, 2015 on all motions to dismiss filed by all appellees. However, the day before that scheduled hearing, the Williams Island Defendants filed a joint notice of deferral of hearing on their motions to dismiss. The deferral was raised at the beginning of the hearing by an attorney for one of the appellees:

Your Honor, one further thing. After we met yesterday there have been developments between the plaintiff and the Williams Island defendants, who include the gentlemen that you just named, Fels, Shelley, Josephs, Shanker and White.
We have requested and we filed late-I apologize for the timing of it, but it is when we learned-filed late yesterday afternoon a request to defer the motion as it relates to the Williams Island defendants.
Plaintiff is agreeable. As a matter of fact, they met directly before we even became involved.
During the hearing, a second counsel for one of the appellees stated:
We're here today on behalf of-and I want to get the names right for purposes of making this argument-Rubin Salant Revocable Trust under Agreement dated October 20, 2009; Mr. and Mrs. Odulate and Todd Schwartz as trustee of Trust Seven Hundred Thirty.
We're not here today on behalf of two other defendants we represent for the reasons you heard about deferral.
(Emphasis added.)

During appellants' argument in opposition to the pending motions to dismiss, counsel for appellants stated:

And the last [claim] is tortious interference. And with regard to the tortious interference, the only defendant that that's applicable to today would be Mr. Feder because the other defendants would be the WIPOA-it's an acronym-who we've agreed for purposes of today we're not going to proceed forward with.

Thus both sides had agreed that the Williams Island Defendants' motions to dismiss were being deferred and would not be considered or ruled upon that day; in fact the trial court was not presented with argument specifically addressing the motion to dismiss filed by those defendants.

At the conclusion of the December 4th hearing, the trial court granted the motion to dismiss and orally pronounced that "all counts are dismissed ... with prejudice." The trial court's oral pronouncement did not directly address whether this ruling applied to the Williams Island Defendants.

On December 23, before the trial court entered a written order of dismissal, appellants filed a notice of voluntary dismissal without prejudice of the Williams Island Defendants. On January 13, 2016, the trial court entered a written order of dismissal, stating that the case is dismissed "in its entirety with prejudice as to all Defendants."

On January 27, 2016, appellants filed a motion to vacate the January 13, 2016 order, arguing that the dismissal with prejudice of the Williams Island Defendants was improper because, among other things, appellants had filed a voluntary dismissal of those parties prior to rendition of the final order. That motion was never heard by the trial court and was subsequently withdrawn by appellants.

Appellants contend, under these circumstances, the trial court was without authority to enter its final order of dismissal as to the Williams Island Defendants. We agree.

Florida Rule of Civil Procedure 1.250(b) provides that "parties may be dropped by an adverse party in the manner provided for voluntary dismissal in rule 1.420(a)(1) subject to the exception stated in the rule." Thus, a plaintiff has a right to take a voluntary dismissal against less than all defendants in an action. Gonzalez v. Turner, 427 So.2d 1123, 1124 (Fla. 3d DCA 1983). The method for doing so is provided in Florida Rule of Civil Procedure 1.420(a)(1) :

(a) Voluntary Dismissal.
(1) By Parties. Except in actions in which property has been seized or is in the custody of the court, an action, a claim, or any part of an action or claim may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (B) by filing a stipulation of dismissal signed by all current parties to the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.

(Emphasis added.)

As a general rule, the effect of a plaintiff's announcement of a voluntary dismissal is "immediate, final, and irreversible," terminating the trial court's authority to enter further orders as to that defendant who has been dropped from the action.

Kelly v. Colston, 977 So.2d 692, 694 (Fla. 1st DCA 2008). Such a rule applies even where (as here) appellants filed the notice of voluntary dismissal after the trial court had orally announced its ruling dismissing the entire action but before the court entered its written order of dismissal. See Freeman v. Mintz, 523 So.2d 606 (Fla. 3d DCA 1988) ; Gonzalez v. Mulreany, 375 So.2d 621 (Fla. 3d DCA 1979).

Because no written order was entered until after appellants had voluntarily dismissed the Williams Island Defendants, that voluntary dismissal rendered the subsequently-entered order of dismissal ineffective as to the Williams Island Defendants, as the trial court was without authority to enter any further order as to those defendants.

We therefore reverse that portion of the trial court's order which dismissed all claims against the Williams Island Defendants. The remaining discussion therefore addresses the trial court's order, and appellants' claims on appeal, as they relate only to the South Island Defendants.

2. Whether appellees were bound by the Easement, Operating and Development Agreement (the "EODA").

Appellants contend that appellees were bound by the EODA, forming a basis for appellants' causes of action in Count I (breach of covenant against the South Island Defendants), Count II (specific performance of covenant against the South Island Defendants) and Count III (breach of the duty of good faith and fair dealing against the South Island Defendants). However, the EODA specifically provided that "in no event shall any of the South Island easement areas include any portions of the individual lots within the South Island, other than the easements and rights of record existing as of the date of this agreement."

In the instant case, a central focus of appellants' claims involved the construction of a sidewalk over the individual lots of the South Island Defendants. Because any portion of the individual lots within the South Island (other than easements and rights of record existing as of the date of the EODA) were expressly excluded, the South Island Defendants were entitled to contest or protest such activity occurring on or planned for their property.

We further conclude that the trial court correctly determined that the South Island Defendants were not parties or signatories to the EODA and were not bound by its terms. As discussed earlier, the EODA defined the term "Parties" as Two Islands Development Corp., Island Estates Homeowner's Association, Inc., and Gary Cohen as Trustee under the Trust Agreement dated December 22, 1995, and their respective successors. On its face, while the South Island Homeowner's Association was a party to the EODA, the individual owners (i.e., the South Island Defendants) were not, and in fact were separately defined in the EODA as "Parcel Owners."

Nor can appellants prevail upon their argument that the EODA is a covenant running with the land, therefore binding the South Island Defendants even though they were not parties or signatories to the EODA. A covenant running with the land must create an interest in the property itself and affect the mode and use or enjoyment of the premises. Suniland Assocs., Ltd. v. Wilbenka, Inc., 656 So.2d 1356 (Fla. 3d DCA 1995) ; Maule Indus. v. Sheffield Steel Prod., 105 So.2d 798 (Fla. 3d DCA 1958). The South Island Defendants' individual lots are specifically excluded from the EODA. As a result, the EODA cannot and did not create an easement on those individual lots and therefore cannot create an "interest" in those lots such that it could constitute a covenant running with the land. The trial court properly dismissed Counts I, II and III against the South Island Defendants on this basis.

3. Whether appellants' remaining claims are barred by the litigation privilege.

Additionally, we hold that the trial court properly determined that, as to individual South Island defendant Feder, the tortious interference with a settlement claim (Count V) was barred by the litigation privilege.

As a general rule, Florida's litigation privilege affords absolute immunity for any act occurring during the course of judicial proceedings, so long as the act is "relevant or material to, the cause in hand or subject of inquiry." Myers v. Hodges, 53 Fla. 197, 44 So. 357, 361 (1907) ; Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 383 (Fla. 2007) ; Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994).

In Levin, 639 So.2d at 608, the Florida Supreme Court extended the litigation privilege, finding that "absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding." Levin further held that "[j]ust as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct." Id.

The Florida Supreme Court in Echevarria, 950 So.2d at 384, further extended the litigation privilege, holding that "[t]he litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or some other origin. Absolute immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding."

In the instant case, the alleged actions by Feder and others, which form the basis for the claim of tortious interference with settlement agreement (Count V), constitute protected communicative acts. Appellants alleged that Feder made representations which "intentionally and unjustifiably interfered with the Settlement Agreement [in the Vested Rights Action involving the Williams Island Property Owners' Association], after Feder convinced the Williams Island Defendants to join forces in the litigation filed by the IEHOA [the Island Estates Homeowners Association]." Appellants further allege that, as a result of Feder's representations, the "Williams Island Property Owners' Association breached the Settlement Agreement and joined IEHOA in litigation against Plaintiffs," resulting in damages.

The tortious interference claim against Feder is barred by the litigation privilege because the alleged representations and actions by Feder "occur[ed] during the course of a judicial proceeding" and these alleged acts "ha[ve] some relation to the proceeding." Levin, 639 So.2d at 608. Thus, dismissal of this count with prejudice, based on the litigation privilege, was proper.

However, we hold that the trial court erred in dismissing Count IV, alleging slander of title against four individual South Island defendants. In that count, Cohen (as trustee of the Trust) alleges that he is the owner of the North Island; that Cohen was currently developing Príve at Island Estates on the North Island, and that four individual South Island defendants (Feder, Sawicki, Kleiman and Coba), in an effort to thwart Cohen's planned development of Príve at Island Estates, made false and malicious statements about the nature of Cohen's interest in the North Island, including false and malicious statements to prospective buyers that Cohen did not have the right to build the planned development and that people coming to sales events should "turn around their cars" because no multi-family project would be built on the North Island. Count IV further alleges that these defendants published these misrepresentations to third parties, causing damages which include lost sales and reduced marketability of the property.

"An action for slander of title is based upon the false and malicious statement, oral or written, made in disparagement of a person's title to real or personal property, or of some right of his, causing him special damages."

Old Plantation Corp. v. Maule Indus., Inc., 68 So.2d 180, 181 (Fla. 1953) (internal citations omitted). Given the allegations of the complaint, and the present stage of the proceedings, we conclude that the trial court erred in dismissing appellants' claim that these four individual South Island Defendants made false and slanderous statements and misrepresentations regarding Cohen's ownership rights to the property.

CONCLUSION

We affirm the trial court's order dismissing with prejudice counts I, II and III against the South Island Defendants, and dismissing with prejudice Count V against individual South Island defendant Feder.

We reverse those portions of the trial court's order that dismissed with prejudice all counts against the Williams Island Defendants, and that dismissed with prejudice Count IV against individual South Island defendants Feder, Sawicki, Kleiman and Coba.

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

      This agreement stated that the permitted density for any development is seventeen units per acre and cannot exceed a maximum height of 290 feet. Both islands encompass a total of twenty-four acres, allowing for a total of 408 units for the Two Islands. There remains a permissible density of 386 units after subtracting the twenty-two homes built on the South Island. The Príve at Island Estates project consists of 160 total units between two towers with a height of 201 feet.

      In the Trespass Action, the South Island Defendants sought a temporary injunction to challenge the construction of a sidewalk along the outer boundaries of the South Island Defendants' properties. The trial court granted the temporary injunction and also denied Two Islands' motion for the Trust and Príve Developers to intervene in the underlying proceedings. Two Islands appealed. This Court vacated the temporary injunction finding that it directly interfered with the rights of parties who were not before the trial court, and who were specifically not permitted to intervene. Two Islands Dev. Corp. v. Clarke, 157 So.3d 1081, 1084 (Fla. 3d DCA 2015). This Court also found that the temporary injunction delayed the Trust's and Príve Developers' receipt of a building permit for the development of the Príve at Island Estates on the North Island. Id.

      In case number 15-000898, the WIPOA seeks a declaratory judgment regarding the vested rights of appellants to build on the North Island.

      Count IV was filed only on behalf of appellant/plaintiff Gary Cohen, as Trustee of the Trust and owner of the North Island.

      In fairness to the trial court, however, the appellees/defendants had filed motions adopting portions of each other's motions to dismiss, and appellants and appellees had agreed that a single attorney would present arguments on behalf of all plaintiffs and a single attorney would present arguments on behalf of all defendants.

      There are exceptions (not applicable here) in which the trial court retains case jurisdiction to, inter alia , address attorney's fees and costs, enforce its own orders, or to consider a narrow range of circumstances for relief under Florida Rule of Civil Procedure 1.540. See, e.g., Pino v. Bank of New York, 121 So.3d 23 (Fla. 2013) ; Giuffre v. Edwards, 226 So.3d 1034 (Fla. 4th DCA 2017).

      Therefore, and as a practical matter, appellants' notice of voluntary dismissal of the Williams Island Defendants operated as a dismissal without prejudice, and the trial court's subsequent order dismissing all claims against the Williams Island Defendants with prejudice was of no force and effect.

      We therefore express no opinion whether, or the extent to which, our affirmance of the remaining portion of the trial court's dismissal order would apply with equal force to the Williams Island Defendants had appellants not voluntarily dismissed them as parties to the action.

      We also reject appellants' contention that the trial court acted prematurely in dismissing the action based upon its construction of the EODA. The EODA was attached as an exhibit to the Amended Complaint and is considered a part of the "four corners" of the pleading in the context of ruling on a motion to dismiss. See Fla. R. Civ. P. 1.130(b) (providing that "[a]ny exhibit attached to a pleading must be considered a part thereof for all purposes"); Santiago v. Mauna Loa Invs., LLC, 189 So.3d 752 (Fla. 2016) ; Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157 (Fla. 3d DCA 2008) ; Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994).

      We further hold, without additional discussion, that the trial court properly dismissed Counts I, II and III against the South Island Defendants upon a determination that those counts were barred by Florida's anti-SLAPP statute, section 720.304, Florida Statutes (2015).

      Because we have already determined, on other grounds, that the trial court properly dismissed Counts I, II and III, see discussion supra , we do not reach the question of whether the litigation privilege barred these claims as well.

      Though not directly relevant to our decision, we note that the Florida Supreme Court recently held that the litigation privilege did not bar the filing of a malicious prosecution claim that was based upon the act of adding a party defendant to a civil suit. Debrincat v. Fischer, 217 So.3d 68 (Fla. 2017).

      Count V set forth a claim of tortious interference against Feder and the Williams Island Defendants.

      Our court, in the recent case of Arko Plumbing Corp. v. Rudd, 230 So.3d 520 (Fla. 3d DCA 2017) distinguished communicative and noncommunicative acts in delineating the proper boundaries for application of the litigation privilege. We held under the facts in Arko that the attorney's noncommunicative acts fell outside the protection of the litigation privilege. Arko, 230 So.3d at 526.

      We affirm without further discussion the remaining issues raised by appellants.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric MCDADE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2642
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018
    Eric McDade, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   PER CURIAM.

Defendant/appellant Eric McDade appeals the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850(b), on the grounds that McDade's motion was time-barred. We reverse and remand for further consideration of the motion, concluding that it was timely under the terms of Rule 3.850.

Rule 3.850(b) provides a two-year period for the filing of a motion for post-conviction relief "after the judgment and sentence become final." For purposes of that provision, a judgment and sentence become final "when any such direct review proceedings have concluded and jurisdiction to entertain a motion for post-conviction relief returns to the sentencing court." Mullins v. State, 974 So.2d 1135, 1137 (Fla. 3d DCA 2008) (quoting Ward v. Dugger, 508 So.2d 778, 779 (Fla. 1st DCA 1987) ). Where there has been a direct appeal, the judgment and sentence become final upon the issuance of the appellate court's mandate on the direct appeal. See Beaty v. State, 701 So.2d 856, 857 (Fla. 1997) ("[T]he district court of appeal's opinion became final when no petition for rehearing was filed within fifteen days, and the two-year period for filing a motion for post-conviction relief began to run upon the issuance of that court's mandate.").

In the underlying case, McDade's post-conviction motion, filed on August 30, 2016, was not untimely, as it was filed within the two-year period provided by Rule 3.850(b). Specifically, since McDade filed a direct appeal, this Court's affirming mandate, issued on June 5, 2015, triggered the two-year time period for McDade to file a motion under Rule 3.850(b). See Beaty, 701 So.2d at 857 ; see also Rogers v. State, 146 So.3d 1263 (Fla. 2d DCA 2014) ; Mullins, 974 So.2d 1135 ; Jones v. State, 602 So.2d 606 (Fla. 1st DCA 1992). McDade's post-conviction motion, dated August 30, 2016, was filed well within the Rule's two-year limitation period. Accordingly, the order denying appellant's motion for post-conviction relief is reversed and remanded for consideration of the merits of the allegations.

      The trial judge relied on an erroneous computation of the applicable time period in the State's response to McDade's motion in the circuit court.

      We express no opinion regarding the merits and substance of McDade's motion.


author: Winokur, J.

text:
    Henry Damon PAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-732
    District Court of Appeal of Florida, First District.
    January 29, 2018 Rehearing Denied April 6, 2018
    Andy Thomas, Public Defender, and Terry P. Roberts, Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Henry Damon Payton appeals his conviction and his judgment and sentence, raising three issues: whether the trial court erred in denying Payton's motion for judgment of acquittal, whether the trial court erred in excluding a third-party confession, and whether a scrivener's error occurred in the judgment and sentence. We affirm on the first two issues, but write to address Payton's claim that the trial court abused its discretion in excluding the third-party confession. On the last issue, we remand to the trial court with instructions to correct the scrivener's error on Payton's judgment and sentence.

I.

Payton was convicted of two counts of first-degree murder and was sentenced to two consecutive life sentences. Before trial, Payton filed a motion to admit the testimony of Randy Byous regarding an alleged confession to the murders by John Bicknas as a statement against penal interest pursuant to section 90.804(2)(c), Florida Statutes, and on due process grounds pursuant to Chambers v. Mississippi , 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

During deposition, Byous testified that a few weeks after the murders, he was fishing with Bicknas. Both Byous and Bicknas were drinking alcohol, and Bicknas was under the influence of methamphetamine. According to Byous, Bicknas confessed to the murders during the fishing trip. Byous was not sure whether Bicknas was bragging or trying to be a "tough guy" or "bad ass." In addition, Byous said that a week before the murders, he observed an enraged Bicknas beating on the steering wheel of his car, claiming that the victims had not paid him an outstanding drug debt. Byous also stated that he reported these encounters with Bicknas to the Crimestoppers hotline. Byous was interviewed by police on January 22, 2014. Bicknas was also interviewed by police, and during the interview, Bicknas denied any involvement in the murders and invoked his right to silence.

The trial court ruled that Byous' testimony would be excluded for lack of trustworthiness. Specifically, the trial court stated as follows:

THE COURT: The Court had the opportunity to review case law; review the deposition of Mr. Byous. At the end of the day, I think both parties agree the issue is whether the statement is trustworthy. It was a hearsay statement made by Mr. Bicknas to Mr. Byous about something to the effect of, you know, I did it; you know, I shot one of them and the other one didn't suffer.
And the reasons for the Court's decision to exclude that and the reasons why the Court believes it's not trustworthy is, one, the setting in which the statement was made, it was made among friends, it was while they were engaged in some kind of a fishing activity; and it's undisputed in the deposition that Mr. Bicknas had a drug problem, that he was under the influence of drugs at the time he made the statement, that the drug he was using was methamphetamines and that he was clearly high on that particular evening.
....
THE COURT: -that the Defendant's drug problem had been increasing. I think the witness testified that the-that since the last time that they had really been together-
[PAYTON'S COUNSEL]: You mean Mr. Bicknas, not the-
THE COURT: That was Mr. Bicknas' drug problem had gotten worse over the years. Again, he was under the influence. Also, the witness said that he thought the Declarant Mr. Bicknas was joking about the matter and also that-I think he even made the comment that Mr. Bicknas was just trying to be a, in his words, a bad ass and just bragging about something that wasn't true.
Also, the witness-if I recall there's no physical evidence that links Mr. Bicknas to the scene of the crime or to any of the personal property that belonged to the victims.
And then there was-there was case law or at least suggestions in case law where someone just bragging to somebody, you know, wasn't enough or would indicate a lack of trustworthiness, and so the Court looked at that language. And there was a specific case, I think, that was cited or else I found-I can't remember which-but I think supports the Court's opinion.
And there's no-and there's no corroboration of Mr. Bicknas' statement to Mr. Byous. All we've got when you really boil it down is someone who was high on methamphetamine, talking to his friends and just bragging about something having no idea what he was really communicating because he was under the influence. And even the friend Mr. Byous thought that the Declarant, that being Mr. Bicknas, was, again, simply bragging, and in his words, just trying to be a bad ass.
So for all those reasons, the Court's going to find that, that hearsay statement is not trustworthy and is, therefore, inadmissible.

At trial, Payton again moved for admission of the third-party confession. The trial court reaffirmed its exclusion of the confession.

II.

Payton argues that Bicknas' confession was admissible as a statement against penal interest under the Florida Evidence Code and under Federal due process grounds. A trial court's ruling regarding the admissibility of evidence will not be disturbed absent an abuse of discretion. Pantoja v. State , 59 So.3d 1092, 1095 (Fla. 2011). A trial court abuses its discretion when the decision is "arbitrary, fanciful, or unreasonable." Huff v. State , 569 So.2d 1247, 1249 (Fla. 1990). However, a court's discretion is limited by the Evidence Code and applicable case law, and a court's erroneous interpretation of these authorities is reviewed de novo . McCray v. State , 919 So.2d 647, 649 (Fla. 1st DCA 2006). Similarly, review of a constitutional question is de novo . Henry v. State , 134 So.3d 938, 944-47 (Fla. 2014).

A.

Section 90.804, Florida Statutes, sets forth hearsay exceptions that require a declarant's unavailability, including the common-law hearsay exception regarding "declarations against interest:"

A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

§ 90.804(2)(c), Fla. Stat. (emphasis added).

The admission of a statement against interest hinges on "whether (1) the declarant is unavailable, (2) the statements are relevant, (3) the statements tend to inculpate the declarant and exculpate the defendant, and (4) the statements are corroborated." Dort v. State , 175 So.3d 836, 840 (Fla. 4th DCA 2015) (citing Voorhees v. State, 699 So.2d 602, 613 (Fla. 1997) ). In addition, Florida courts have held that trial courts "should consider 'the language used and the setting in which the statement was made,' and decide whether the statement is 'consistent with both the defendant's general version of events and the other evidence presented at trial.' " Dewolfe v. State , 62 So.3d 1142, 1145 (Fla. 1st DCA 2011) (quoting Masaka v. State, 4 So.3d 1274, 1282 (Fla. 2d DCA 2009) ). This is consistent with the fourth prong of the Dort test, as well as the trustworthiness requirement found in the text of section 90.804(2)(c).

B.

Notwithstanding these requirements, this Court has made it clear that "judges have a duty to admit evidence that does not fit neatly within the confines of the Evidence Code in order to protect the defendant's right to a fair trial." Curtis v. State , 876 So.2d 13, 19 (Fla. 1st DCA 2004). This rule is rooted in the United States Supreme Court's decision in Chambers noting that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." 410 U.S. at 302, 93 S.Ct. 1038. Consequently, Chambers held that the exclusion of a third-party confession may violate a defendant's constitutional rights to due process and a fair trial. Id. at 302-03, 93 S.Ct. 1038.

The Chambers Court articulated a four-factor test for the admission of a third-party confession: "(1) the confession or statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the confession or statement is corroborated by some other evidence in the case; (3) the confession or statement was self-incriminatory and unquestionably against interest; and (4) if there is any question about the truthfulness of the out-of-court confession or statement, the declarant must be available for cross-examination." Bearden v. State , 161 So.3d 1257, 1261 (Fla. 2015) (citing Chambers , 410 U.S. at 300-01, 93 S.Ct. 1038 ).

III.

In this case, the State argues that Payton did not show whether Bicknas was "unavailable" pursuant to section 90.804(2)(c). However, the record is clear that Bicknas invoked his right to silence when police interviewed him about his statement to Byous. A declarant who asserts the Fifth Amendment right against self-incrimination is "unavailable." Henyard v. State, 992 So.2d 120, 126 n.3 (Fla. 2008).

Even if Bicknas were available, the constitutional mandate of Chambers , as recognized by this Court in Curtis , dispenses with any formalistic requirement that the declarant of a third-party confession be unavailable. Therefore, the question before this Court is whether Bicknas' statement to Byous carries the indicia of trustworthiness required by both section 90.804(2)(c) and Chambers .

Bicknas was under the influence of methamphetamine and alcohol when he allegedly told Byous, "[y]ou know I did it, don't you?" Byous also believed that Bicknas was trying to come across as a tough guy. The statement was spontaneous and not prompted by Byous in any way. In addition, on a prior occasion Bicknas alluded to the fact that the victims owed him a drug debt.

While the first, third, and fourth prongs of the Chambers test seem to favor Payton's position that the statement should have been admitted into evidence, the second prong of the test weighs heavily against its admission. 410 U.S. at 300-01, 93 S.Ct. 1038. Similarly, the fourth prong of the Dort test also militates against the admission of Bicknas' statement. 175 So.3d at 840.

At bottom, this is a third-party confession that was made by a declarant under the influence of narcotics and alcohol. Furthermore, Payton concedes that there is no evidence linking Bicknas to the murders. The trial court did not abuse its discretion in determining that the evidence here does not satisfy the corroboration prongs of the Chambers and Dort tests, particularly in light of our ruling in Dewolfe that the trial court must determine whether the statement is consistent with other evidence presented at trial. 62 So.3d at 1145.

Moreover, this Court has noted that a third-party confession made in the context of a declarant bragging to friends must be viewed cautiously. See Curtis , 876 So.2d at 21 (noting that the court "would be more concerned if Butler had been bragging to his friends" in determining whether to admit Butler's confession to law enforcement). It is clear from the record that Byous and Bicknas were long-time friends.

Payton argues that the trial court abused its discretion because it impermissibly weighed Byous' credibility in excluding the statement. Indeed, Florida courts have consistently held that the "trial judge exercises only gatekeeping function, by deciding whether corroborating circumstances show the declaration's 'trustworthiness.' " Dewolfe , 62 So.3d at 1145. As a result, it is the jury's duty to "assess the credibility of an in-court witness who is testifying about [a statement against penal interest]." Bearden , 161 So.3d at 1264 (emphasis added).

In this case, however, the trial court only considered the context, setting, and language of Bicknas' statement. The trial court made no judgment as to Byous' credibility. Again, this is entirely consistent with a trial court's analysis of the trustworthiness of a third-party confession pursuant to Chambers , Dort , and Dewolfe .

IV.

Payton claims that a scrivener's error occurred on the judgment and sentence where it found that Payton committed "first degree murder with a firearm" and, as such, the court erred in denying Payton's motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). A motion to correct a sentencing error is reviewed de novo . Willard v. State , 22 So.3d 864 (Fla. 4th DCA 2009). Rule 3.800(b) allows a defendant to file "[a] motion to correct any sentencing error ... only if the correction of the sentencing error would benefit the defendant or to correct a scrivener's error."

Both Payton's grand jury indictment and the judgment and sentence state that Payton was charged with two counts of "first degree murder with a firearm." The jury verdict form simply found Payton guilty of two counts of first-degree murder, and the jury made no finding that Payton possessed or discharged a firearm. In addition, the trial court did not apply any firearm-related sentencing enhancement pursuant to section 775.087, Florida Statutes. There is no crime entitled "first degree murder with a firearm" in the State of Florida.

Based on these facts, the language of "first degree murder with a firearm" on Payton's judgment and sentence constitutes a scrivener's error. Therefore, we remand with instructions that the trial court enter a corrected judgment and sentence indicating that Payton was convicted of "first-degree murder."

V.

In conclusion, the trial court did not abuse its discretion or violate Payton's constitutional right to a fair trial in excluding the third party confession. Thus, we affirm Payton's conviction and only remand with instructions that the trial court enter a corrected judgment and sentence consistent with this opinion.

AFFIRMED ; REMANDED for correction of scrivener's error in judgment and sentence.

Rowe and Osterhaus, JJ., concur.

      Regarding the judgment of acquittal issue, we find that this case is factually distinguishable from Knight v. State , 186 So.3d 1005 (Fla. 2016) ; Hodgkins v. State , 175 So.3d 741 (Fla. 2015) ; Ballard v. State , 923 So.2d 475 (Fla. 2006) ; and Cox v. State, 555 So.2d 352 (Fla. 1989).


author: Per Curiam.

text:
    Fred Lee CASON, II, Appellant, v. STATE OF FLORIDA DEPARTMENT OF REVENUE CHILD SUPPORT PROGRAM and Tylsha Tongail Garcia, Appellees.
    No. 1D17-4996
    District Court of Appeal of Florida, First District.
    January 30, 2018 Rehearing Denied April 6, 2018
    Fred Lee Cason, II, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee State of Florida Department of Revenue Child Support Program. No appearance for Appellee Tylsha Tongail Garcia.
   Per Curiam.

DISMISSED. See Raysor v. Raysor , 706 So.2d 400, 401 (Fla. 1st DCA 1998).

Roberts, Rowe, and Winokur, JJ., concur.


author: ROTHENBERG, C.J.

text:
    Derek Lorenzo JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-536
    District Court of Appeal of Florida, Third District.
    Opinion filed January 31, 2018
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LUCK, JJ.
   ROTHENBERG, C.J.

Derek Lorenzo Johnson ("the defendant") was convicted of attempted second degree murder on August 25, 2004. After his conviction and sentence were affirmed on appeal, see Johnson v. State, 930 So.2d 668 (Fla. 3d DCA 2006), the defendant filed: (1) a petition for a writ of certiorari with the United States Supreme Court, which was denied in Johnson v. Florida, 549 U.S. 1121, 127 S.Ct. 940, 166 L.Ed.2d 719 (2007) ; (2) a pro se motion to vacate, set aside, or correct the judgment and sentence; (3) a petition for writ of habeas corpus with this Court, requesting that his sentence be vacated and remanded for resentencing, which was denied in Johnson v. State, 990 So.2d 1075 (Fla. 3d DCA 2008) ; (4) a pro se motion to correct an illegal sentence, which was denied by the trial court and affirmed by this Court in Johnson v. State, 11 So.3d 957 (Fla. 3d DCA 2009) ; and (5) a verified amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court consolidated the defendant's pro se motion to vacate, set aside, or correct the judgment and sentence with his subsequently filed motion for postconviction relief, and after conducting an evidentiary hearing, issued a lengthy well-written order denying the defendant's motions. The order includes a very thorough analysis and recitation of the evidence relied upon by the trial court in reaching its conclusions.

Although the consolidated motions raised several grounds, on appeal the defendant raises only one ground for reversal-that trial counsel "effectively deprived Mr. Johnson of the ability to make a knowing and voluntary decision about testifying." This claim, however, was not raised below in either of the motions filed by the defendant and was not litigated by the parties. What the defendant argued below was that his trial counsel provided ineffective assistance of counsel by advising the defendant not to testify at his trial and misadvising the defendant that if he testified, the details of his prior convictions could potentially be disclosed to the jury. However, because the record reflects that the voluntariness of the defendant's decision not to testify was indirectly raised during the evidentiary hearing, and the State has, in the abundance of caution, addressed the merits of this claim in its answer brief, we too will address the merits of this unpreserved claim, but only within the narrow confines of the evidence and arguments offered below.

THE EVIDENCE

The defendant claims that he wanted to testify at his trial in order to refute the testimony of the victim, Timothy Davis, who is also the defendant's half-brother. Davis was shot in the head twice while sitting with the defendant in the front seat of the defendant's car by a man known as "Black Boy," who was sitting directly behind Davis in the back seat of the defendant's car.

According to Davis, the defendant was a drug dealer. Davis testified that he wanted to purchase two kilograms of cocaine. He, therefore, contacted the defendant, who arranged to purchase the cocaine from Ramses Hankerson, who is also known as Moochie, in Miami. Davis, who lived in Virginia, drove to Tampa, Florida, to meet with the defendant, and together, they drove in the defendant's car to Miami. In exchange for his services, the defendant was to receive a $2,000 fee from Davis.

After arriving in Miami, the defendant and Davis met with Moochie. Moochie brought a sample of the cocaine for Davis and the defendant to inspect. After the inspection, Moochie delivered approximately one kilogram, or one-half of the two-kilogram purchase, to the defendant and Davis in the defendant's car in exchange for the $40,000 in cash Davis had brought for the purchase, with the promise that he would retrieve the remainder of the cocaine from a nearby apartment and bring it down to the defendant's car. Moochie, however, fled with the $40,000 and did not deliver the remainder of the cocaine. After attempts to locate Moochie were unsuccessful, Davis called a friend who knew Moochie to complain about the theft of his money, and several phone calls were made in an attempt to get Moochie to return Davis's money or to deliver the remainder of the cocaine purchased.

Davis testified that after these calls were made, the defendant began "acting strange." The defendant called someone on his cell phone, and although Davis wanted to leave Miami, the defendant drove to the defendant's girlfriend's apartment, met briefly with his girlfriend, used the restroom, and then drove back to the area where they had originally met with Moochie. When they arrived at that location, the defendant exited his car and met with two unknown men on the street. Although Davis could not hear their conversation, he did hear one of the men tell the defendant: "No, no, no, man; no man. That is your people ...." Davis testified that this same man then looked into the defendant's car and said, "no, no, I ain't got nothing to do with that there," and then the man walked away. Davis testified that the second man who was speaking with the defendant pulled the hood of his hoodie over his head and got into the backseat of the car behind Davis, who was in the front passenger seat. The defendant identified the man in the hoodie as his "cousin." Davis, who was the defendant's half-brother, testified that he had never met the man the defendant claimed was his cousin.

Davis testified that after the three men drove around for a while, and made a brief stop, Davis, who had already noticed that the defendant was acting strangely, became suspicious and increasingly nervous and called his girlfriend to tell her that he loved her. While Davis was speaking to his girlfriend, he saw the defendant pound the steering wheel of the car and heard the defendant say: "God damn man, what you gonna do?" Immediately thereafter, the man in the hoodie, who the defendant had identified as his "cousin," shot Davis in the back of the head. Blood started coming out of Davis's ears and mouth. Davis fell forward, dropping his telephone, pushed himself up, and then looked at the defendant, who looked back at him with an expression on his face, which Davis described as, "Like he ain't dead yet?" As Davis was trying to reach for the door handle, he was shot in the head again. Davis then heard the defendant tell his "cousin" to get Davis out of his car because "he is bleeding all over my shit," which Davis explained meant the defendant's car.

Thereafter, the defendant and the defendant's "cousin" dumped Davis in a ditch on the side of a road. When the defendant's "cousin" considered shooting Davis again, Davis pretended to be dead, and the defendant told his "cousin," "No, no, no, no, no. He is dead. He is dead. Come on, let's go, let's go," and they left. Davis was able to make it to a nearby house, knock on the door, and ask for help. He was rushed to the hospital, where he underwent surgery and survived.

The State also introduced evidence that after the shooting, the defendant had the blood-stained carpeting and seatbelt removed from his car, and he had the vehicle cleaned and painted. The person who worked on the car called the police and the defendant was arrested. Davis's and the State's position at trial was that the defendant was involved in the "rip-off" of Davis's money and that the defendant either procured his "cousin" to shoot and kill Davis or that the defendant willingly assisted in the attempted murder of Davis.

At trial, the defendant did not dispute the evidence regarding the drug transaction or the "rip-off" by Moochie. His defense was that he had no knowledge of, nor participation in, the attempted murder of Davis. In support of his defense, the defendant called Moochie as a defense witness. Moochie confirmed the evidence regarding the events surrounding the drug transaction and his theft of Davis's money, but testified that the defendant did not know that Moochie intended to steal Davis's money. Moochie disavowed any involvement with the shooting and denied having knowledge of the shooter's identity. The defendant did not call any other witnesses, and he did not testify at the trial.

ANALYSIS

A. The advice of counsel

The defendant claimed below that his trial counsel provided ineffective assistance of counsel by advising him not to testify on his own behalf. Based on the evidence at the evidentiary hearing, which clearly reflects that trial counsel's advice to the defendant that he not testify was a strategic one, the case law, and the trial court's factual and credibility determinations, appellate counsel appears to have properly abandoned this argument on appeal.

As the trial court noted, a strategic or tactical decision, which in this case was whether the defendant should testify in his own defense, is not a valid basis for an ineffective assistance of counsel claim unless the defendant is able to show that no competent trial counsel would have utilized the tactics employed. Windom v. State, 886 So.2d 915, 922-23 (Fla. 2004) ; see also Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that the defendant must overcome the strong presumption that counsel's performance fell within the wide range of reasonable professional assistance, and that, under the circumstances, the challenged action might be considered sound trial strategy).

The defendant's trial counsel testified at the evidentiary hearing that he strongly advised the defendant against testifying. This advice, which he conveyed to the defendant when they discussed whether the defendant should take the stand in his defense during the trial, was based on his belief that: (1) the trial was going well, and that the defendant's testimony and the cross-examination from the very experienced and effective prosecutor trying the case would hurt, not help the defendant; (2) the jury would learn that the defendant was a convicted felon with six prior felony convictions; and (3) the defendant would not be a good witness.

"[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). Because the defendant's trial counsel's strategic decision to advise the defendant not to testify was not unreasonable, we conclude that the trial court did not err by denying the defendant's ineffective assistance of counsel claim on this basis.

B. The voluntariness of the defendant's decision not to testify

The only issue actually raised in this appeal is whether the defendant's decision not to testify at his trial was freely and voluntarily made. The argument made below as to the voluntariness of the defendant's decision not to testify was premised on the forcefulness of trial counsel's advice to the defendant and trial counsel's demeanor in conveying that advice. Although the trial court found that the discussion between the defendant and his trial counsel about whether the defendant should testify was "heated and intense, and [trial counsel] made his opinion known loudly and strongly to [the defendant]," the trial court nevertheless found that the defendant's decision not to testify was voluntarily made. This finding is supported by the record.

The record reflects that the defendant was thoroughly questioned by the trial court about his decision not to testify prior to submitting the case to the jury. The trial court specifically advised the defendant that despite whatever advice trial counsel may have given him about testifying, the decision was the defendant's to make. The defendant stated that he understood that the decision was his to make, but he had decided not to testify, and he had made that decision freely and voluntarily:

THE COURT: Mr. Johnson, it is my understanding that since [trial counsel] has just rested the case in front of the jury that you do not wish to be a witness on your own behalf; is this correct?
THE DEFENDANT: Yes, sir.
THE COURT: Now while you have an excellent lawyer, [ ], and he may have given you advice on whether you should or should not [testify] but the ultimate advice about whether you testify is your decision, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Are you making a decision not to be a witness on your own behalf freely and voluntarily?
THE DEFENDANT: Yes, sir.

The trial court even took a recess to allow the defendant to speak with his trial counsel privately in the jury room to address any questions or concerns he may have had, and after that recess, the trial court re-affirmed with the defendant that he did not wish to testify and that his decision not to testify was freely and voluntarily made:

THE COURT: Okay, Mr. Johnson, I have now had you go back with [trial counsel] to ask any other questions that you may have. Are you satisfied with any discussion that you have reached back there?
THE DEFENDANT: Yes, sir.
THE COURT: You are still under the opinion that you do not wish to be a witness; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: This is of your own free will? No matter what was said back there, this is your choice?
THE DEFENDANT: Yes, sir.
THE COURT: Court finds that [Mr.] Johnson is alert and intelligent, and does understand his right to waive his right to testify. The defendant is fully informed of it and is doing it freely and voluntarily and that all witnesses and defenses have been put on and so forth. Thank you, Mr. Johnson.
THE DEFENDANT: You are welcome, sir.

We, therefore, find that the trial court's finding that the defendant's decision not to testify was freely and voluntarily made is supported by the record.

The defendant, however, claims on appeal that trial counsel's failure to prepare the defendant for cross-examination in the event he did testify and failure to discuss the possibility of the defendant testifying prior to trial in a calmer setting to allow the defendant to "calmly consider his options" resulted in a decision that was not voluntary. Because these claims were not raised or litigated below, they were not preserved for appellate review, and thus, we decline to address them on appeal.

Affirmed.


author: WALLIS, J.

text:
    John D. FIELDING, Appellant, v. PNC BANK NATIONAL ASSOCIATION, Successor by Merger to National City Bank Successor by Merger to Fidelity Federal Bank and Trust, Harbour Lights Homeowners Association, et al., Appellees.
    Case No. 5D16-440
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    Beau Bowin, of Bowin Law Group, Indialantic, for Appellant.
    Gabriel M. Hartsell and William L. Grimsley, of McGlinchey Stafford, Jacksonville, for Appellee, PNC Bank National Association.
    No Appearance for other Appellees.
   WALLIS, J.

John Fielding ("Borrower") appeals the entry of final judgment of foreclosure in favor of PNC Bank, National Association, successor by merger to National City Bank, successor by merger to Fidelity Federal Bank and Trust ("Appellee"). Because Appellee did not establish standing at the inception of the case, we reverse and remand with instructions for the trial court to enter an involuntary dismissal.

In August 2003, Borrower executed a note and mortgage agreement with Fidelity Federal Bank and Trust ("Original Lender"). In April 2007, Original Lender converted to a national bank, assumed the name Fidelity Bank, National Association, and then merged into National City Bank ("NCB"). In July 2008, National City Mortgage ("NCM") filed a foreclosure complaint against Borrower. In November 2009, NCB merged with Appellee. In June 2010, NCM moved to substitute Appellee as plaintiff as the successor by merger to NCB, which was successor by merger with Original Lender.

At trial, Appellee called its records custodian, Omar Jerome, who testified that Original Lender merged with NCB and then NCB merged with Appellee. Jerome identified two documents relevant to the merger chain and central to this appeal: (1) a copy of the certificate of merger for Original Lender, Fidelity Federal Bank and Trust, renamed Fidelity Bank, to NCB; and (2) a copy of certificate of merger for NCB to Appellee from the comptroller of currency. The trial court ultimately entered a final judgment of foreclosure for Appellee.

"A trial court's decision as to whether a party has satisfied the standing requirement is reviewed de novo." Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla. 5th DCA 2015) (quoting Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011) ). "A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose." Id. at 45-46 (quoting McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) ). "A foreclosure plaintiff must have standing at both the time when the foreclosure complaint is filed and when the final judgment is entered." Bowmar v. SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA 2016). "[T]he mortgage follows the note." US Bank, NA for Truman 2012 SC2 Title Tr. v. Glicken, 228 So.3d 1194, 1196 (Fla. 5th DCA 2017). As such, a party entitled to enforce the note has standing to foreclose on a mortgage. Id.; Khan v. Bank of Am., N.A., 58 So.3d 927, 928 (Fla. 5th DCA 2011).

According to Florida Statutes, a party entitled to enforce an instrument is: "(1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; or (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4)." § 673.3011, Fla. Stat. (2016). Holder is defined as, inter alia , "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." Id. § 671.201.

The rights to enforce the note may be transferred through assignment, purchase, or other effective transfer. Segall v. Wachovia Bank, N.A., 192 So.3d 1241, 1243 (Fla. 4th DCA 2016). "One type of such an 'effective transfer' is a corporate merger, whereby a surviving entity may enforce the note and mortgage of the predecessor." Id. When a merger becomes effective, the party corporations of the merger merge into the surviving corporation, and the surviving corporation owns all real estate and other property and is liable for all the liabilities and responsibilities of each corporation party to the merger. § 607.1106, Fla. Stat. (2016). However, to establish standing by merger in a foreclosure action, "the surviving entity [must] prove that it 'acquired all of [the absorbed entity's] assets, including [the] note and mortgage, by virtue of the merger.' " Segall, 192 So.3d at 1245 (quoting Fiorito v. JP Morgan Chase Bank, Nat'l Ass'n, 174 So.3d 519, 521 (Fla. 4th DCA 2015) ).

Here, NCM filed its initial complaint of foreclosure with a lost note count and attached a copy of the note payable to Original Lender. Borrower raised standing as an affirmative defense. To establish standing at the inception of the case, Appellee must show that NCM, its predecessor, was entitled to enforce the lost note at the time NCM filed the complaint. See Bowmar, 188 So.3d at 988. Appellee failed to provide evidence of NCM's entitlement to enforce the note. Instead, Appellee established that Original Lender merged with NCB, which then merged with Appellee, leaving NCM out of the merger chain at trial. Based on the trial evidence, NCM has no connection to Original Lender, NCB, or Appellee.

Our court has recently held, on multiple occasions, that banks must establish and explain the relationship between the entities in the entire chain of mergers in order to establish standing. See, e.g., Green v. Green Tree Servicing, LLC, 230 So.3d 989, 991 (Fla. 5th DCA 2017) ("The merger involved BAC and CHL Servicing, LP, while the original note listed CHL, Inc., as the original lender. Neither Green Tree nor its witness explained the relationship between these two distinct entities."); Wisman v. Nationstar Mortg., LLC, --- So.3d ----, ----, 42 Fla. L. Weekly D2251, D2252, 2017 WL 4699718 (Fla. 5th DCA Oct. 20, 2017) ("While Nationstar claims that CHL Inc., CHL Servicing, LP and BAC are the same entity, its own evidence demonstrates otherwise. ... [T]he evidence fails to show that CHL Inc. was affiliated with either CHL Servicing, LP or BAC."). Therefore, this absence of proof is fatal to establishing standing. See Green, 230 So.3d at 991 ; Wisman, --- So.3d at ----, 42 Fla. L. Weekly at D2252 ; Bowmar, 188 So.3d at 988. Accordingly, we reverse and remand with instructions for the trial court to enter an involuntary dismissal.

REVERSED and REMANDED with Instructions.

COHEN, C.J. and ORFINGER, J., concur.

      Because we reverse and remand on the issue of standing, we decline to address the remaining issues on appeal.

      Appellee asserts that Borrower did not properly preserve this precise issue for review. However, we find the issue reviewable pursuant to Florida Rule of Civil Procedure 1.530(e). "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." Winchel v. PennyMac Corp., 222 So.3d 639, 644 (Fla. 2d DCA 2017). Here, the issue goes to the sufficiency of the evidence because Appellee became obligated to prove its standing in order to win when Borrower raised standing in his answer. See id.; see also Delia v. GMAC Mortg. Corp., 161 So.3d 554, 555 n.1 (Fla. 5th DCA 2014) ; Lacombe v. Deutsche Bank Nat'l Tr. Co., 149 So.3d 152, 153 (Fla. 1st DCA 2014).


text:
    Deano S. ESPOSITA, Appellant, v. SUNTRUST BANK, Amy C. Esposita, Regions Bank d/b/a Amsouth Bank and Magnolia Plantation Homeowners Association, Inc., Appellees.
    Case No. 5D17-3552
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018 Rehearing and Rehearing En Banc Denied March 26, 2018
    Deano S. Esposita, Lake Mary, pro se.
    Charles P. Gufford, of McCalla Raymer Leibert Pierce, LLC, Orlando, for Appellee, SunTrust Bank.
    No appearance for other Appellees.
    ON CONFESSION OF ERROR
   PER CURIAM.

Pursuant to SunTrust Bank's Confession of Error, we reverse the Summary Final Judgment of Foreclosure, as the trial court lacked jurisdiction to enter the judgment because the case had been removed to federal court. We remand this matter to the trial court for further proceedings.

REVERSED and REMANDED.

SAWAYA, ORFINGER, and LAMBERT, JJ., concur.


text:
    Justis MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1247
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   PER CURIAM.

Affirmed. See Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996) (holding, inter alia, that peremptory challenges are presumed to be exercised in a nondiscriminatory manner, and that the focus of the inquiry "is not upon the reasonableness of the asserted nonracial motive ... but rather the genuineness of the motive ... a finding which turns primarily on an assessment of credibility") (additional citations omitted); Alonzo v. State, 46 So.3d 1081, 1084 n.2 (Fla. 3d DCA 2010) (holding that pretext may be established where a prospective juror is struck for a reason equally applicable to an unchallenged juror; where the alleged disparate treatment of jurors is based on racial grounds and "the record fails to identify the respective race of the challenged and unchallenged jurors, the appellate court cannot determine if pretext exists") (citing Davis v. State, 691 So.2d 1180 (Fla. 3d DCA 1997) ).


author: EMAS, J.

text:
    Alex GUTIERREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2673
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018
    Alex Gutierrez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   EMAS, J.

Alex Gutierrez appeals the trial court's order summarily denying his motion to correct illegal sentence. Gutierrez contends that his habitual violent felony offender sentences are illegal under Heggs v. State, 759 So.2d 620 (Fla. 2000) and that his crimes were committed on February 20, 1997, within the Heggs window.

While Gutierrez is correct that he committed his crimes within the Heggs window, he is incorrect in asserting that the sentences are illegal, because Heggs is inapplicable to a defendant who was sentenced as a habitual violent felony offender.

Section 775.084(4)(e), Florida Statutes (1994), which provision existed prior to the unconstitutional 1995 amendments to the sentencing guidelines, provided that a defendant who is sentenced as a habitual felony offender or a habitual violent felony offender is not subject to the sentencing guidelines provisions of section 921.001, Florida Statutes. Therefore, the 1995 sentencing guidelines, and the Heggs decision striking down those guidelines as unconstitutional, has no application to the non-guidelines sentences imposed on Gutierrez in the instant case. De La Rosa v. State, 979 So.2d 1089 (Fla. 3d DCA 2008) (holding that the Florida Supreme Court's decision in Heggs does not affect a defendant who was properly sentenced as a habitual violent felony offender); Stanley v. State, 947 So.2d 627 (Fla. 3d DCA 2007) (holding that defendant's sentence was not illegal under Heggs where defendant was sentenced as a habitual felony offender); Jefferson v. State, 826 So.2d 1006 (Fla. 3d DCA 2001) (affirming denial of a Heggs challenge to the legality of a sentence where defendant designated and sentenced as a habitual violent felony offender).

Affirmed.

      In Heggs, the Florida Supreme Court held that the 1995 sentencing guidelines (chapter 95-184, Laws of Florida) were unconstitutional, having been adopted in violation of the single-subject rule contained in Article III, section 6 of the Florida Constitution.

      See Trapp v. State, 760 So.2d 924 (Fla. 2000) (applying Heggs to offenses committed between October 1, 1995 and May 24, 1997).


text:
    Eugene BARDAKJY, Appellant, v. EMPIRE INVESTMENT HOLDINGS, LLC, etc., Appellee.
    No. 3D17-2270
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018
    Rafool, LLC, and David R. Hazouri, for appellant.
    Waldman Barnett, P.L., and Glen H. Waldman and Benjamin L. Keime, for appellee.
    Before FERNANDEZ, LOGUE and LINDSEY, JJ.
   PER CURIAM.

This is before us on the motion of Appellee, Empire Investment Holdings, LLC ("Empire"), to dismiss this appeal for lack of jurisdiction. In this appeal, Appellant, Eugene Bardakjy ("Bardakjy"), appeals the trial court's order entitled, Final Judgment Against Plaintiff, Eugene Bardakjy, on His Claim for Breach of Contract, entered in favor of Empire on Bardakjy's complaint for breach of contract. Empire's counterclaims for breach of fiduciary duty and unjust enrichment remain pending below. These counterclaims form the basis for Empire's motion to dismiss. Bardakjy argues in opposition to the motion to dismiss that Empire's counterclaims involve Bardakjy's alleged conduct as an employee of Empire prior to his resignation and, thus, involve two distinctly separate and independent transactions and occurrences.

In its amended counterclaim, Empire alleged that subsequent to Bardakjy's resignation, it learned that Bardakjy had committed acts of negligence and mismanagement with respect to the plan to redesign and reengineer one of the manufacturing lines at one of the plants (the "Manufacturing Line Conversion") and then concealed its complete failure from Empire. Empire allegedly discovered that the redesign and reengineering of the Manufacturing Line Conversion was fatally flawed from inception and that Bardakjy neither sought the consultation of others with the requisite expertise nor allowed anyone with such expertise who desired to participate to have a voice.

Empire claimed that Bardakjy breached his fiduciary duty to Empire by failing to act in good faith and with the best interests of Empire when designing and implementing the Manufacturing Line Conversion, and by the reckless design and concealment of its failure. Empire further claimed that Bardakjy was unjustly enriched by receiving the severance package in light of his actions with respect to the Manufacturing Line Conversion. Upon learning of Bardakjy's failure to perform his duties with respect to the Manufacturing Line Conversion, Empire rescinded the severance package and ceased making payments to Bardakjy. Although Bardakjy's alleged misconduct was not discovered until his employment had terminated, it nonetheless involves conduct pre-termination.

Issues and facts related to Empire's pending counterclaims, which involve conduct by Bardakjy prior to his resignation that subsequently resulted in Empire's rescission of the severance package, are intertwined with the claims and defenses raised in this appeal. As such, we conclude that the order on appeal is not a "partial final judgment" under Florida Rule of Appellate Procedure 9.110(k) and, therefore, we dismiss this premature appeal. See Almacenes El Globo De Quito, S.A. v. Dalbeta L.C., 181 So.3d 559, 561-62 (Fla. 3d DCA 2015) (internal citations omitted) (" Rule 9.110(k) provides for appellate jurisdiction to hear a partial final judgment only when the claims adjudicated by that order are separate and independent from the portion of the case still to be adjudicated. If all claims arise from the same set of facts, an order resolving fewer than all of the counts is not appealable under Rule 9.110(k).").

ORDERED that Empire's Motion to Dismiss Appeal for Lack of Jurisdiction is granted without prejudice to the parties' rights on appeal after the trial court enters a final judgment on the pending and interrelated counterclaims.


author: SALTER, J.

text:
    Omar RODRIGUEZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-1633
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018
    Ross Amsel Raben Nascimento, PLLC, and Alan S. Ross, Miami; Gail S. Grossman, P.A., and Gail S. Grossman (Oxford), for petitioner.
    Pamela Jo Bondi, Attorney General, and Amit Agarwal (Tallahassee), Solicitor General, and Marlon J. Weiss, Assistant Attorney General, for respondent.
    Ricardo J. Bascuas, for Amicus Curiae University of Miami School of Law Federal Appellate Clinic.
    Cooper & Kirk, PLLC, and David H. Thompson, Davis Cooper and Haley N. Proctor (Washington, DC), for Amicus Curiae The NRA Freedom Action Foundation.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa and John Eddy Morrison, Assistant Public Defenders, for Amicus Curiae Florida Public Defender Association, Inc.
    Reed Smith LLP and Edward M. Mullins, Miami, Lisa M. Baird, Los Angeles, CA, and Brandon White, West Palm Beach, for Amicus Curiae Brady Center to Prevent Gun Violence.
    Shutts & Bowen LLP and Jason Gonzalez (Tallahassee); Stephen P. Halbrook (Fairfax, VA), for Amicus Curiae Unified Sportsmen of Florida, Inc.
    Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., and Glenn Burhans, Jr., and Kelly A. O'Keefe (Tallahassee), for Amicus Curiae Law Center for the Prevention of Gun Violence.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   SALTER, J.

Omar Rodriguez seeks a writ of prohibition to prevent the trial court from proceeding with a "Stand Your Ground" ("SYG") immunity hearing based on Rodriguez's argument that a trial court ruling has erroneously denied Rodriguez the benefit of the recent legislative amendment. Because we conclude that the trial court has not acted or attempted to act outside its jurisdiction in issuing the challenged order and preparing to conduct the SYG immunity hearing, we dismiss Rodriguez's petition for lack of jurisdiction.

Factual and Procedural History

Rodriguez was indicted for first-degree murder and aggravated assault with a firearm. The date of the alleged crime was June 20, 2015. The effective date of the amendment creating subsection 776.032(4) of the 2017 SYG Law was June 9, 2017. That subsection provides:

(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in [ section 776.032(1) ].

Before the amendment, the Florida Supreme Court interpreted the self-defense and SYG statute (including the use of deadly force provisions) to establish procedures for pretrial immunity hearings. Dennis v. State, 51 So.3d 456 (Fla. 2010) ; Bretherick v. State, 170 So.3d 766 (Fla. 2015). Of particular pertinence here, Bretherick placed "the burden of proof on the defendant to establish entitlement to Stand Your Ground immunity by a preponderance of the evidence at the pretrial evidentiary hearing, rather than on the State to prove beyond a reasonable doubt that the defendant's use of force was not justified ...." 170 So.3d at 779.

On June 20, 2017, Rodriguez filed an SYG immunity motion to dismiss the charges against him. He contended that his non-jury SYG hearing would be subject to the parties' burden of proof under the 2017 SYG Law rather than the Crime Date SYG Law and the burden of proof standards otherwise applicable under Bretherick. Although the alleged crime date in his case was two years before the amendment, Rodriguez sought the benefit of (1) the amendment's shift of the burden of persuasion from himself as defendant to the State, and (2) the amendment's imposition of a higher standard of proof upon the State-"clear and convincing"-rather than the "mere preponderance" standard previously applicable to defendants moving before trial for SYG immunity and discharge.

The State contended that the Crime Date SYG Law, as interpreted in Bretherick, governed the burden of persuasion and standard of proof applicable to Rodriguez's motion. The trial court promptly ordered briefing on the applicability of the 2017 SYG Law, including the constitutionality of the amendment under Article V, sections 2 and 3 of the Florida Constitution.

On July 3, 2017, the trial court issued a one-page "Order on 'Stand Your Ground' Hearing," which adopted a 14-page order entered the same day by the same Judge on the same issues, but in another pending criminal case. Both orders concluded that the new statute was an unconstitutional violation of the separation of powers mandated by Article V, section 2(a) of the Florida Constitution. The trial court held that questions regarding the burden of proof are procedural in character rather than substantive, such that the Legislature could only override the Florida Supreme Court's procedural burden and standard of proof rulings in Dennis and Bretherick by the two-thirds supermajority votes in each house of the Legislature in accordance with Article V, section 2(a). No such supermajority was obtained in the case of the legislative amendment under consideration.

The order further held that the hearing on Rodriguez's SYG motion for dismissal would be conducted under the pre-amendment procedures regarding the burden and standard of proof. Rodriguez's petition for prohibition followed.

Analysis

"Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction." English v. McCrary, 348 So.2d 293, 296 (Fla. 1977) ; Roberts v. Brown, 43 So.3d 673, 677-78 (Fla. 2010) ; School Bd. of Miami-Dade Cty. v. C.A.F., 194 So.3d 493, 496 (Fla. 3d DCA 2016). The appellate courts of Florida have concluded that a petition for prohibition is the appropriate vehicle for consideration of a trial court's order denying SYG immunity following a defendant's motion and an evidentiary hearing. Mobley v. State, 132 So.3d 1160, 1161 (Fla. 3d DCA 2014) ; Bretherick v. State, 135 So.3d 337, 339 (Fla. 5th DCA 2013).

In the present case, however, the trial court has not heard or ruled on Rodriguez's motion for SYG immunity; to the contrary, the trial court has only indicated that the motion will be heard and that the Crime Date SYG Law will be applied. Rodriguez's complaint is not that he has been wrongfully denied immunity, but rather that he has been denied what he perceives to be favorable tactical, procedural advantages (arguably inherent in the 2017 SYG Law) by the trial court for the upcoming hearing.

We conclude that we lack jurisdiction to address such a petition on its merits before the trial court hears Rodriguez's SYG motion and issues its ruling. The trial court did not enter its order in excess of its jurisdiction or in an attempt to do so.

Nor, in considering our obligation under Florida Rule of Appellate Procedure 9.040(a) to consider an alternative basis for jurisdiction "as may be necessary for a complete determination of the cause," do we find that the present petition provides a basis for jurisdiction and relief in certiorari. Also an extraordinary writ granted in very limited circumstances, certiorari jurisdiction would require Rodriguez to establish a departure from the essential requirements of the law, resulting in material injury for the remainder of the case, which cannot be remedied on post-judgment appeal. Coral Gables Chiropractic PLLC v. United Auto. Ins. Co., 199 So.3d 292, 294 (Fla. 3d DCA 2016). The last two requirements-material injury for the remainder of the case, and harm which is not remediable on appeal-are jurisdictional. Id. Rodriguez's petition, appendix, and reply fail to satisfy these requirements.

For these reasons, we lack jurisdiction at this procedural point to address the merits of Rodriguez's claim of constitutionality and his claim for retrospective application of the 2017 SYG Law to his 2015 case.

Petition dismissed.

      Section 776.032, Florida Statutes (2015), as used in this opinion, and for clarity, the "Crime Date SYG Law"; and section 776.032, Florida Statutes (2017), the "2017 SYG Law".

      The amendment embodied in the 2017 SYG Law was enacted by Chapter 2017-72, § 1, Laws of Florida. Section 2 of Chapter 2017-72 specified that "This act shall take effect upon becoming a law," and the act became a law when the Governor signed it on June 9, 2017. The enactment was otherwise silent regarding its application to claims of SYG immunity in cases with crime dates preceding that effective date.

      Article V, "Judiciary," specifies in section 2 (a) that (among other things) "The supreme court shall adopt rules for the practice and procedure in all courts ...," and "Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature." Section 3 (b) details the jurisdiction of the Florida Supreme Court.

      State v. Rutherford, Case No. F16-12827 (Fla. 11th Jud. Cir. 2017).

      We have jurisdiction to both question our own jurisdiction and to determine that question, as we do here. See State v. Barati, 150 So.3d 810, 813 (Fla. 1st DCA 2014) ; Spear v. Spear, 516 So.2d 1132, 1132 (Fla. 3d DCA 1987).

      We appreciate the amici briefs filed by numerous non-profit associations and the University of Miami School of Law Federal Appellate Clinic. The research and legal theories advanced by the amici will not be discarded. There are presently pending numerous other SYG appellate cases, not only in this court but also in others throughout the State, relating to the June 2017 amendment, its alleged unconstitutionality (on at least two separate legal theories), and its applicability to prosecutions for crimes allegedly committed before enactment.


text:
    Argilio DIAZ and America Diaz, Appellants, v. U.S. BANK, N.A., etc., et al., Appellees.
    No. 3D17-930
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018
    Rieger Law, P.L., and Thomas F. Rieger (Naples); Niles B. Whitten (Gainesville), for appellants.
    Weitz & Schwartz, P.A., and Sarah T. Weitz, Steven C. Weitz, and Nathan L. Wood (Fort Lauderdale), for appellee U.S. Bank, N.A.; The Griffith Law Firm, P.A., and Derek R. Griffith, for appellee MHR Group, LLC.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   EMAS, J.

Argilio and America Diaz appeal (1) the February 7, 2017 final judgment of foreclosure (following trial) in favor of U.S. Bank, N.A.; (2) the April 20, 2017 order denying the Diazes' motion for rehearing of the final judgment; (3) the April 20, 2017 order denying the Diazes' objection to, and motion to vacate, the foreclosure sale; and (4) the April 20, 2017 order granting third-party purchaser MHR Group, LLC's motion for certificate of title and writ of possession. We affirm in part and reverse in part.

As to the final judgment of foreclosure, we hold that the trial court erred in including attorney's fees and costs as a part of that judgment. Although U.S. Bank, prior to trial, filed affidavits attesting to the amount and reasonableness of the attorney's fees and costs incurred, U.S. Bank acknowledges that these affidavits were not introduced into evidence (assuming their admissibility at trial), and no testimony or evidence regarding attorney's fees and costs was presented at the trial. Under these circumstances, the trial court erred in including in the final judgment an award of attorney's fee and costs. See Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280 (Fla. 2d DCA 2014). As to the remaining issues raised by the Diazes against the final judgment, we affirm without further discussion, and we also affirm the order denying the Diazes' motion for rehearing.

However, we reverse the order denying the Diazes' objection to, and motion to vacate, the foreclosure sale and the order granting MHR Group, LLC's motion for certificate of title and writ of possession. As U.S. Bank properly and commendably concedes, the trial court erred in denying the objection to and motion to vacate the sale and in ordering the clerk to issue the certificate of title, where the foreclosure sale was conducted on March 22, 2017, while the Diazes' motion for rehearing, directed to the final judgment, remained pending. Enforcement of the final judgment was suspended until the trial court disposed of the timely filed motion for rehearing directed to the final judgment. See 944 CWELT-2007 LLC v. Bank of Am., N.A., 194 So.3d 470 (Fla. 3d DCA 2016) ; United Invs. Ltd. P'ship v. Resolution Tr. Corp., 566 So.2d 370 (Fla. 3d DCA 1990) ; Hoffman v. BankUnited, N.A., 137 So.3d 1039 (Fla. 2d DCA 2014).

In doing so, we decline the invitation of the third-party purchaser, MHR Group, LLC, to affirm on the basis that the Diazes did not act with reasonable diligence in securing a hearing and ruling on the motion for rehearing prior to the scheduled foreclosure sale date.

Instead, we would urge trial courts in these circumstances to ensure that any pending motion for rehearing has been resolved prior to the scheduled foreclosure sale. This could be accomplished rather straightforwardly: when the trial court enters the final judgment of foreclosure (which judgment may include a specific date for the foreclosure sale), the trial court can also schedule a status conference to be held at least fifteen days from the date of the filing of the final judgment (i.e., the time within which a motion for new trial or rehearing must be served pursuant to Florida Rule of Civil Procedure 1.530(b) ). If no motion for new trial or rehearing has been served by the time of the status conference, the scheduled foreclosure sale can proceed as scheduled. If a motion for new trial or rehearing has been served by that date, the trial court can consider and rule on the motion at that time and, if denied, the scheduled foreclosure sale can proceed as scheduled. If the motion cannot be disposed of at the status hearing, and further proceedings may extend beyond the scheduled foreclosure sale date, the trial court can reschedule the foreclosure sale to ensure that the motion is resolved prior to that rescheduled sale date.

We reverse the final judgment of foreclosure insofar as it contained an award of attorney's fees and taxable costs, and remand for entry of an amended final judgment. We affirm the final judgment in all other respects, and affirm the order denying the motion for rehearing. We reverse the order denying the Diazes' objection to, and motion to vacate, the foreclosure sale and the order granting MHR Group, LLC's motion for certificate of title and writ of possession and directing issuance of the certificate of title and writ of possession. We remand with instructions for the trial court to set a new foreclosure sale date, and for further proceedings consistent with this opinion.

      U.S. Bank N.A. as Trustee on behalf of the holders of the J.P. Morgan Mortgage Acquisition Trust 2006-CH1 Asset Backed Pass-Through Certificates Series 2006-CH1.

      See Beltway Capital, LLC v. Nigel Lucombe, 211 So.3d 328 (Fla. 2d DCA 2017) (holding that section 702.015, Florida Statutes does not impose an additional element in a mortgage foreclosure cause of action); Campbell v. Wells Fargo Bank, N.A., 204 So.3d 476 (Fla. 4th DCA 2016). See also Ortiz v. PNC Bank, N.A., 188 So.3d 923 (Fla. 4th DCA 2016).