author: Klingensmith, J.

text:
    BANK OF NEW YORK MELLON, f/k/a Bank of New York, as Trustee, ON BEHALF OF the REGISTERED HOLDERS OF ALTERNATIVE LOAN TRUST 2007-OA7, Mortgage Pass-through Certificates Series 2007-OA7, Appellant, v. Lisa Kay HEATH, et al., Appellees.
    No. 4D16-1988
    District Court of Appeal of Florida, Fourth District.
    April 26, 2017

      Jacqueline Costoya of Kelley Kronen-berg, Fort Lauderdale, for appellant.
    No appearance for appellees.
   Klingensmith, J.

Bank of New York Mellon (“Bank”) appeals the trial court’s order granting Lisa Kay Heath (“Borrower”) an involuntary dismissal due to Bank’s lack of standing. We find it was error for the court to dismiss the foreclosure action, and reverse for a new trial.

After Borrower defaulted on the loan, Select Portfolio Servicing (“SPS”), on behalf of Bank, filed a foreclosure complaint against Borrower, alleging that Bank was holder of the note and entitled to enforce its terms. A copy of the note was attached to the complaint. Attached to the note was an allonge with three endorsements, one of which was endorsed in blank.

At trial, Bank admitted the original note and allonge into evidence, which were identical to the copies attached to the complaint. A representative of SPS testified that SPS serviced Borrower’s loan, and that Borrower’s note and allonge were in SPS’s possession when the complaint was filed. Bank also admitted two limited power of attorney documents. One of those documents specifically provided SPS the power to initiate foreclosure actions on Bank’s behalf, and both documents referenced the pooling and servicing agreement (“PSA”).

When Bank attempted to introduce the PSA into evidence, Borrower objected on the grounds that at the SPS representative’s deposition, Bank’s attorney prohibited Borrower’s attorney from questioning the SPS representative about the PSA because Bank would not use the PSA at trial. The court agreed with Borrower and precluded Bank from admitting the PSA, as well as the mortgage loan schedule contained therein.

Borrower later moved for involuntary dismissal, arguing that Bank lacked standing because the PSA, which was not admitted into evidence, was the document that specifically authorized SPS to act on Bank’s behalf. Agreeing with Borrower’s reasoning, the court granted the motion for involuntary dismissal without prejudice. This appeal followed.

The standard of review for an order granting a motion for involuntary dismissal is de novo. Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014). “An involuntary dismissal or directed verdict is properly entered only when the evidence considered in the light most favorable to the non-moving" party fails to establish a prima facie case on the non-moving party’s claim.” McCabe v. Hanley, 886 So.2d 1053, 1055 (Fla. 4th DCA 2004) (quoting Hack v. Estate of Helling, 811 So.2d 822, 825 (Fla. 5th DCA 2002)).

“[Standing is a crucial element in any mortgage foreclosure proceeding, and must be established at the inception of the lawsuit.” U.S. Bank Nat’l Ass’n v. Clarke, 192 So.3d 620, 622 (Fla. 4th DCA 2016). A plaintiff has standing to foreclose if the plaintiff is the holder of the promissory note. See § 673.3011(1), Fla. Stat. (2014). A “holder” is defined as “[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.” § 671.201(21)(a), Fla. Stat. (2014), In other words, a plaintiff who is not the original payee has standing to foreclose if the plaintiff, before filing the complaint, possesses the note and the note is endorsed to the plaintiff specifically or in blank.

Here, Bank established standing because the original note and blank-endorsed allonge was properly authenticated and introduced into evidence at trial, which was identical to the copy of the note and blank-endorsed allonge attached to the complaint. See Clarke, 192 So.3d at 622 (holding that a blank-endorsed original note introduced into evidence that matched copy of the note attached to complaint was “sufficient to establish,' absent any testimony of other evidence to the contrary, that [foreclosing bank] had possession of the blank-endorsed note at the time the complaint was- filed and therefore had standing to bring the foreclosure action as the holder of the note”).

Moreover, even though SPS physically possessed the note at the time the complaint was filed, Bank had standing because the testimony and evidence introduced at trial established that SPS, on behalf of Bank, was the servicer for Borrower’s loan. See Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So.3d 1277, 1279 (Fla. 4th DCA 2016) (holding that when bearer paper is at issue and there is an agency relationship, “the element of possession can be met through either actual or constructive possession”). Constructive possession is, “possession in which a person ‘has such control over the property that he may deliver the possession of it, if he so desires, as for example, where an agent holds property for his principal.’” Id. (quoting Bush v. Belenke, 381 So.2d 315, 316 (Fla. 3d DCA 1980)).

Therefore, even without the PSA and mortgage loan schedule, Bank established standing. Accordingly, we reverse the trial court’s involuntary dismissal order and remand this case for a new trial.

Reversed and Remanded for new trial.

Taylor and Gerber, JJ., concur.

      . On appeal, Bank also argues that the trial court abused its discretion when it excluded the PSA and mortgage loan schedule from evidence. We disagree. Allowing the PSA into evidence after Bank's attorney stated at the deposition that the PSA would not be used at trial would have prejudiced Borrower and rewarded Bank for misleading Borrower’s attorney. It does not comport with fundamental fairness for an attorney to mislead an opponent, even unintentionally, and then reap the benefits. Therefore, on remand, Borrower shall have the right to, conduct another deposition of the SPS representative and question the representative about the PSA.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LES CHATEAUX AT INTERNATIONAL GARDENS CONDOMINIUM ASSOCIATION, INC., Appellant, v. CUEVAS & ASSOCIATES, P.A., Appellee.
    No. 3D15-2935
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017
    Rehearing Denied May 25, 2017

      Alba Varela, for appellant.
    Cuevas & Garcia, Jose H. Garcia, Danial R. Moghani and Andrew Cuevas, for ap-pellee.
    Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Upon oúr de novo review, we affirm the trial court’s entry of final summary judgment. As to the sub-claim that the trial court erred’ in denying appellant’s request to consider its untimely affidavit in opposition to the motion for summary judgment, see Florida Rule of Civil Procedure 1.510(c)' (providing that evidence in opposition to summary judgment must be served at least five days prior to the day of the hearing or delivered no later than 5:00 p.m. two business days prior to the day of the hearing), we affirm and note that, in the absence of a transcript of the proceeding at which this request was made and denied, we cannot review whether the trial court abused its discretion in this regard. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979). Finally, appellant’s motion for rehearing, which was accompanied by a new affidavit,, was denied by the trial court, and we find no abuse of discretion in that ruling. See Lufthansa German Airlines Corp. v. Mellon, 444 So.2d 1066 (Fla. 3d DCA 1984); Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla. 1982) (adopting Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 391 So.2d 1164 (Fla. 5th DCA 1980)).

Affirmed.


text:
    Carson H. BROCK, Petitioner, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    Case No. 2D16-4663
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2017.
    P. Hutchison Brock, II of Brock Law, LLC, Wesley Chapel, for Petitioner.
    Christie S. Utt, General Counsel and Monique L’ltalien, Assistant General Counsel, Lake Worth, for Respondent.
   PER CURIAM.

Denied.

KELLY, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ.,- Concur.


author: FERNANDEZ, J.

text:
    DNA SPORTS PERFORMANCE LAB, INC. and Neiman Nix, Appellants, v. CLUB ATLANTIS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D15-2003
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017.

      Damian & Valori, LLP, Peter F. Valori and Amanda L. Fernandez, for appellants.
    Fowler White Burnett, P.A., Alice K. Sum and Stephanie M. Chaissan, for ap-pellee.

      Before SUAREZ, C.J., and ROTHENBERG, and FERNANDEZ, JJ.
   FERNANDEZ, J.

DNA Sports Performance Lab, Inc. and Neiman Nix (“DNA Sports”) appeal the dismissal of their Amended Verified Complaint with prejudice. We reverse the dismissal because an amendment could have supported a cause of action for breach of contract in count one and tortious interference with a business and contractual relationship in count three, and remand to allow DNA Sports to ñle a second amended complaint.

DNA Sports is the tenant of commercial premises within a condominium property, pursuant to a lease agreement with the owner, and appellee Club Atlantis Condominium Association, Inc., operates the association for the subject condominium. The Amended Verified Complaint raises counts for breach of contract, specific performance, tortious interference with a business and contractual relationship, invasion of privacy, and negligent misrepresentation against Club Atlantis.

DNA Sports alleged in count one for breach of contract that Club Atlantis owed them express and implied contractual duties for the exclusive use/rental of between five and twelve assigned parking spaces. They further alleged that Club Atlantis materially breached those contractual duties and caused damage as a direct and proximate result of the breaches.

In count three for tortious interference with a business and contractual relationship, DNA Sports alleged that they had an existing and ongoing business relationship with their landlord, of which Club Atlantis was well aware, since Club Atlantis screened DNA Sports as prospective commercial tenants and expressly approved the commercial lease between DNA Sports and the landlord. DNA Sports further alleged that Club Atlantis intentionally and unjustifiably interfered with the ongoing business and contractual relationships between DNA Sports and their landlord, that Club Atlantis intentionally procured the breach of the Commercial Lease Agreement between DNA Sports and their landlord, and that DNA Sports has been damaged as a direct and proximate consequence of Club Atlantic’s tortious interference.

The trial court dismissed the Amended Verified Complaint with prejudice as to all counts. It was an abuse of discretion to dismiss the Amended Verified Complaint with prejudice as to counts I and III where the complaint is amendable. The standard or review of an order that dismisses a complaint for failure to state a cause of action is de novo. See Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 84 (Fla. 5th DCA 2012).

Count I could be amended to state a cause of action for breach of contract. The elements of a cause of action for breach of contract are: (1) the existence of a contract, (2) a breach of the contract, and (4) damages that resulted from the breach. Progressive Am. Ins. Co. v. Gregory, Inc., 16 So.3d 979, 981 (Fla. 3rd DCA 2009). DNA Sports could allege the existence of an implied-in-fact contract and/or promissory estoppel. DNA Sports alleged that Club Atlantis owed express and implied contractual duties for the exclusive use/rental of assigned parking spaces, which Club Atlantis breached and caused damage resulting from the breach. DNA Sports could also plead additional facts to support the existence of a valid and enforceable contract.

’ Count III could likewise be amended to state a cause of action for tortious interference with a contractual or business relationship. A claim for tortious interference with a contractual or business relationship consists of four elements: 1) the existence of a business relationship between the plaintiff and a third person, not necessarily evidenced by an enforceable contract, under which the plaintiff has legal rights, 2) the defendant’s knowledge of the relationship, 3) an intentional and unjustified interference with the relationship, by the defendant which induces or otherwise causes the third person not to perform, and 4) damage to the plaintiff resulting from the third person’s failure to perform. See Seminole Tribe of Florida v. Times Pub. Co., Inc., 780 So.2d 310, 315 (Fla. 4th DCA 2001). DNA Sports alleged the existence of a business relationship with their landlord and Club Atlantis’ knowledge of the relationship. DNA Sports further alleged that Club Atlantis intentionally and unjustifiably interfered with the ongoing business and contractual relationship between DNA Sports and their landlord that resulted in damages. DNA Sports could- also plead additional facts to support its claim for tortious interference.

We therefore reverse the trial court’s dismissal of DNA Sports’ Amended Verified Complaint with prejudice as to counts I and III and remand with instructions to allow DNA Sports to file an amended complaint.

Reversed and-remanded.

      . DNA Sports consented to the dismissal of count II and focused its appeal on the dismissal of counts I and III.


text:
    David Cletis WALKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2289
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017
    Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

KHOUZAM, MORRIS, and BLACK, JJ., Concur.


text:
    Darron GROOMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2759
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant 'Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed.

VILLANTI, C.J., and WALLACE and BADALAMENTI, JJ., Concur.


text:
    Allen S. ALBERTSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4699
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017
   PER CURIAM.

Affirmed.

NORTHCUTT, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur. ..


author: WETHERELL, J.

text:
    SANTA MONICA BEACH PROPERTY OWNERS ASSOCIATION, INCORPORATED, Joe Bailey, Lew James, Cindy Dood, Janet Dick-Grace, Adrian Holman, Joyce Hoskins, John Hunter, Mark Jamison, Barbara Ramlow, Gary Salter, Steve Sanders, and Bob Whitson, Appellants, v. David ACORD and Wife, Virginia Acord, and William C. Alford, Appellees.
    CASE NO. 1D16-4782
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017
    Rehearing Denied May 12, 2017

      Jeffrey P. Whitton, Panama City, for Appellants.
    Robert L. Kauffman of Dunlap & Ship-man, P.A., Santa Rosa Beach, for Appel-lees.
   WETHERELL, J.

The Santa Monica Beach Property Owners Association and the members of its board of directors (collectively “the Association”) appeal the order dismissing the declaratory judgment action in which they alleged that the use of Appellees’ properties as short-term vacation rentals violates the covenants restricting the properties’ use to residential purposes only and prohibiting their use for business purposes. We affirm.

Factual and Procedural Background

Appellees own two properties in the Santa Monica Beach subdivision in Bay County. The properties are subject to restrictive covenants which provide in pertinent part:

Said land shall be used only for residential purposes, and not more than one detached single family dwelling house and the usual outhouses thereof, such as garage, servants’ house and the like, shall be allowed to occupy any residential lot as platted at any one time; nor shall any building on said land be used as a hospital, tenement house, sanitarium, charitable institution, or for business or manufacturing purposes nor as a dance hall or other place of public assemblage.

(emphasis added).

In December 2015, the Association sent letters to Appellees stating that “it has been observed that the primary use of your property during 2015 seems to have become VACATION RENTAL; advertised on VRBO.” The letters asserted that this use violated the restrictive covenants and requested that Appellees discontinue the “vacation rental business” on their properties by March 2016. The record does not reflect whether Appellees responded to these letters.

Thereafter, in July 2016, the Association filed a complaint for declaratory judgment alleging that Appellees’ use of their properties violates the restrictive covenants quoted above. Specifically, the complaint alleged that Appellees’ properties were being offered and advertised for rent on the internet as transient public lodging establishments; that Appellees were required to collect and remit state sales tax and local bed tax on the rentals; and that the Acords had obtained a license to operate their property as a transient public lodging establishment under the name “Acord Rental.”

Appellees filed a motion to dismiss the complaint for failure to state a cause of action because the uses alleged in the complaint do not violate the restrictive covenants. Specifically, Appellees argued that the short-term vacation rentals were residential uses—and not business uses—because the renters were using the properties for residential purposes: “Critically, the [Association] ha[s] not alleged that the properties are being rented for any purpose other than residential use by residential tenants. ... [T]he fact that this use is residential in character, and not a commercial or ‘business’ use, is conclusively established by the fact that [the Association] repeatedly refer[s] to Florida’s statute concerning ‘public lodging,’ lodging being an inherently residential use of a dwelling” (emphasis in original).

The trial court agreed and dismissed the complaint. The court reasoned that “[t]he critical inquiry is not the duration of the tenancy, ,but the character of the actual use of the property by those residing thereon.” Additionally, the court explained that because the proper focus is on “the actual use which is undertaken on the property,” the nature of the properties’ use is not transformed from residential- to business simply - because the properties., may be subject to a regulatory scheme that requires licensure and Appellees may earn income from the rentals, Finally, the court noted that because the restrictive covenants are silent on the issue of short-term rentals, any ambiguity as to whether that use is permitted must be resolved in favor of Appellees’ free and unencumbered use of their properties.

This appeal follows.

Analysis

Our review of the dismissal order is de novo. See Genesis Ministries, Inc. v. Brown, 186 So.3d 1074, 1076 (Fla. 1st DCA 2016) (“We review the dismissal order under the de novo standard of review because the question of whether a complaint should be dismissed is a question of law. And, like the trial court, our review is confined to the well-pled allegations in the complaint and its attachments.”) (citation omitted).

The specific issue in this appeal—whether short-term vacation rentals violate restrictive covenants requiring property to be used only for residential purposes and prohibiting its use for business purposes— appears to be a matter of first impression in Florida. See generally William P. Sklar & Jerry C. Edwards, Florida Community Associations Versus Airbnb and VRBO in Florida, Fla. Bar. J., Feb. 2017, at 16. However, courts in a number of other states have considered the issue and those courts have almost uniformly held that short-term vacation rentals do not violate restrictive covenants nearly identical to those at issue in this case. See Gadd v. Hensley, — S.W.3d -, 2017 WL 1102982 (Ky. Ct. App. Mar. 24, 2017) (unpublished opinion); Houston v. Wilson Mesa Ranch Homeowners Ass’n, 360 P.3d 255 (Col. App. 2015); Wilkinson v. Chiwawa Communities Ass’n, 180 Wash.2d 241, 327 P.3d 614 (2014) (en banc); Estates at Desert Ridge Trails Homeowners’ Ass’n v. Vazquez, 300 P.3d 736 (N.M. Ct. App. 2013); Russell v. Donaldson, 222 N.C.App. 702, 731 S.E.2d 535 (2012); Slaby v. Mountain River Estates Residential Ass’n, 100 So.3d 569 (Ala. Civ. App. 2012); Applegate v. Colucci, 908 N.E.2d 1214 (Ind. Ct. App. 2009); Mason Family Trust v. DeVaney, 146 N.M. 199, 207 P.3d 1176 (N.M. Ct. App. 2009); Ross v. Bennett, 148 Wash. App. 40, 203 P.3d 383 (2008); Scott v. Walker, 274 Va. 209, 645 S.E.2d 278 (2007); Lowden v. Bosley, 395 Md. 58, 909 A.2d 261 (2006); Mullin v. Silvercreek Condo. Owner’s Ass’n, 195 S.W.3d 484 (Mo. Ct. App. 2006); Pinehaven Planning Bd. v. Brooks, 138 Idaho 826, 70 P.3d 664 (2003); Yogman v. Parrott, 325 Or. 358, 937 P.2d 1019 (1997) (en banc); Catawba Orchard Beach Ass’n v. Basinger, 115 Ohio App.3d 402, 685 N.E.2d 584 (1996); but see Shields Mountain Property Owners Ass’n v. Teffeteller, 2006 WL 408050 (Tenn. Ct. App. Feb. 22, 2006) (unpublished opinion); Benard v. Humble, 990 S.W.2d 929 (Tex. App.- Beaumont 1999).

These decisions explain that in determining whether short-term vacation rentals are residential uses of the property, the critical issue is whether the renters are using the property for ordinary living purposes such as sleeping and eating, not the duration of the rental. See, e.g., Wilkinson, 327 P.3d at 620 (“If a vacation renter uses a home ‘for the purposes of eating, sleeping, and other residential purposes,’ this use is residential, not commercial, no matter how short the rental duration.” (quoting Ross, 203 P.3d at 388)); Slaby, 100 So.3d at 579 (explaining that the cabin at issue is “used for ‘residential purposes’ anytime it is used as a place of abode, even if the persons occupying the cabin are residing there temporarily during a vacation”). The decisions further explain that the nature of the property’s use is not transformed from residential to business simply because the owner earns income from the rentals. See, e.g., Lowden, 909 A.2d at 267 (“The owners’ receipt of rental income in no way detracts from the use of the properties as residences by the tenants.”) (emphasis in original); Slaby, 100 So.3d at 580 (“[Njeither [the] financial benefit nor the advertisement of the property or the remittance of a lodging tax transforms the nature of the use of the property from residential to commercial.”); Mason Family Trust, 207 P.3d at 1178 (“While [the owner’s] renting of the property as a dwelling on a short-term basis may have constituted an economic endeav- or on [his] part, to construe that activity as one forbidden by the language of the deed restrictions [prohibiting use for business or Commercial purposes] is unreasonable and strained. Strictly and reasonably construed, the deed restrictions do not forbid short-term rentals for dwelling purposes.”). We agree with the • analysis' in these decisions.

Here, the Association did not-r-and apparently could not—allege that Appel-lees’ properties were being used by the renters for any nonresidential purpose. Accordingly, consistent with, decisions cited above, we hold that the, use of Appellees’ properties as short-term vacation rentals is not prohibited by the applicable restrictive covenants.

This holding is not inconsistent with Robins v. Walter, 670 So.2d 971 (Fla. 1st DCA 1995). The issue in that case was whether the operation of a bed and breakfast inn violated a restrictive covenant prohibiting the use of the property for business or commercial purposes. Id. at 973. The court held that the inn was prohibited because it was essentially a small motel. Id. at 974. Notably, the inn at issue in Robins had a number of indicia of a business, such a manager to “control the guests,” signs located on the property advertising it as a “Bed and Breakfast Inn,” and five bedrooms each with a separate entrance to the outside of the structure. Id. at 973-74. Here, the complaint does not allege that Appellees’ properties are being operated like the bed' and breakfast in Robins or that they have any other indicia of business use. Cf. Laursen v. Giolli, 549 So.2d 1174, 1175 (Fla. 2d DCA 1989) (holding that owners’ use of their home as an adult congregate living facility violated a residential-use-only deed restriction ‘ because the owners were providing'not only room and- boafd but also transportation, entertainment, and “other services and amenities as are usually found in' a commercial retirement home”).

Nor is this holding inconsistent with Bennett v. Walton County, 174 So.3d 386 (Fla. 1st DCA 2015), That case involved a land development code, not a restrictive covenant, and the issue in the case was whether the code’s prohibition on non-residential uses was sufficiently clear to preclude the owners’ use of their property as a venue for weddings and other events. Id at 388. The court rejected the property owners’ challenge to the code, explaining that although “people throw parties in their homes in residential neighborhoods all the timé,” id. the frequency and intensity of the activities on the property demonstrated that the owners “have essentially introduced a wedding venue business into their [residential] neighborhood,” id. at 389. Here, the complaint contains no allegations regarding the frequency of Ap-pellees’ vacation rentals, but even if the properties are rented to different persons every night, there is no allegation that the renters are using the properties for anything other than ordinary living purposes.

Finally, even if the restrictive covenants were susceptible to an interpretation that would preclude short-term vacation rentals, the omission of an explicit prohibition on that use in the covenants is fatal to the position advocated by the Association in this case because “[t]o impute such a restriction would cut against the principle that such restraints ‘are not favored and are to be strictly construed in favor of the free and unrestricted use of real property.’ ” Leamer v. White, 156 So.3d 567, 572 (Fla. 1st DCA 2015) (quoting Wilson v. Rex Quality Corp., 839 So.2d 928, 930 (Fla. 2d DCA 2003)); see also Moss v. Inverness Highlands Civic Ass’n, 521 So.2d 359 (Fla. 5th DCA 1988) (“Restrictive covenants are to be strictly construed in favor of the landowner and the free use of his property.”). Indeed, the need for explicit language in the covenants is particularly important where the use in question is common and predictable, as is the case with short-term rentals of houses near the beach to vacationers.

Conclusion

For the reasons stated above, we affirm the dismissal of the Association’s declaratory judgment action.

AFFIRMED.

OSTERHAUS and M.K. THOMAS, JJ., CONCUR.

      . One property is owned by Appellees David and Virginia Acord and the other is owned by Appellee William Alford.

      2. VRBO—which is short for “Vacation Rentals by Owner”—is a website on which owners can advertise their houses and other properties for rent. VRBO bills itself as "the world leader in vacation rentals with over 1 million listings in 190 countries.” See Frequently Asked Questions, Who is VRBO?, https:// www.vrbo.com/lyp? (last visited April 11, 2017).

      . "Transient public lodging establishment” is statutorily defined as:
      any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests.
      § 509.013(4)(a)l„ Fla. Stat.; see also § 509.242, Fla. Stat. (classifying and defining the various types of public lodging establishments, including "vacation rentals”).

      .The complaint was dismissed with prejudice because, as explained in the dismissal order, "[c]ounsel for the [Association] indicated that he could not amend the Complaint to allege additional uses of the subject properties which would support the [Association’s] claim of prohibited use.”


author: WALLIS, J.

text:
    Marshall S. VAUGHAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4443
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Rehearing Denied June 1, 2017
    Marshall S. Vaughan, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   WALLIS, J.

Marshall S. Vaughn appeals the trial court’s summary denial of his Second Motion to Vacate and Set Aside a Sentence filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he asserted three claims for relief. We affirm the trial court’s denial of Vaughn’s second and third claims without further discussion. In his first claim, Vaughn argued he involuntarily entered his plea because he was not informed about his possible maximum sentence as a habitual felony offender. “[P]ri- or to acceptance of the plea: 1) the defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences.” Baker v. State, 12 So.3d 281, 282 (Fla. 5th DCA 2009) (quoting Ashley v. State, 614 So.2d 486, 490 (Fla. 1993)). We find that the attached records do not conclusively refute Vaughn’s claim. Accordingly, we reverse the summary denial of the first claim and remand for the trial court to either attach records or hold an evidentiary hearing to conclusively establish that the trial court advised Vaughn of the consequences of his habitualization.

AFFIRMED in part; REVERSED in part; and REMANDED with Instructions.

PALMER and BERGER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Joseph Michael MILICI, Appellee.
    Case No. 5D16-2353
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Jeri M. Delgado, Assistant Public Defender, Daytona Beach, for Appellee.
   WALLIS, J.

The State appeals the trial court’s imposition of downward departure sentences following Joseph Michael Milici’s violation of probation (“VOP”). We reverse Milici’s sentences and remand for resentencing consistent with this opinion.

FACTS'

In May 2011, the State charged Milici by information with principal to robbery with a weapon (count 1) and principal to aggravated assault with a deadly weapon (count 2). The State alleged that Milici obtained a fraudulent prescription for oxycodone that he could not fill at a local pharmacy, despite numerous attempts. Milici and his co-defendant then drove to a nearby department store, where the co-defendant purchased a pellet gun. Milici drove back to the pharmacy and dropped off his co-defendant, who entered the store while Milici waited outside. The co-defendant proceeded to brandish the pellet gun at the clerk and steal eight bottles of oxycodone. Milici served as the getaway driver following the robbery.

In January' 2013, Milici entered a plea of nolo contendere to both counts. The trial court sentenced him to fifteen years’ incarceration, suspended upon completion of two.years’ community control, followed by ten years’ probation (count 1) and five years’ incarceration, suspended upon completion of two years’ community control, followed by two years’ probation (count 2). In March 2013—only two months into his community control—Milici was arrested and charged with sale of a schedule II controlled substance and sale of a schedule IV controlled substance. Thereafter, the State filed a VOP report, but the trial court adjudicated Milici incompetent. The trial court modified the conditions of Mili-ci’s community control, ordering him to remain at a residential facility and comply with their rules. In March 2016, the State filed an addendum to the March 2013 violation report, alleging that Milici violated his community control after being evicted from the residential facility for using controlled substances. The trial court adjudicated Milici competent pursuant to a new competency evaluation.

The trial court held a revocation hearing in April 2016. At the hearing, the State explained that a confidential informant who knew Milici contacted him and requested to purchase two types of prescription drugs. Milici left a bottle of pills by an electrical pole in front of his house and told the confidential informant to take the pills and leave the money in the same place. After completing the transaction, the confidential informant requested more pills. Approximately one hour later, Milici sold the confidential informant additional pills by a hand-to-hand transaction. Law enforcement arrested Milici and charged him with three counts for sale of a controlled substance. The trial court granted the State’s motion to revoke Milici’s community control, and the case proceeded to a VOP hearing.

At the VOP hearing, Milici admitted to violating his probation and entered an open plea of nolo contendere to the three counts for sale of a controlled substance. At the sentencing hearing, Milici presented testimony from several witnesses, including his two sisters, his pastor, a crisis counselor, and the owner of the group home at which he previously resided. Mili-ci’s witnesses testified that Milici was generally a good person who, despite making several errors in judgment, did not pose a danger to the community. Milici’s witnesses believed that he could be rehabilitated into a functioning member of society.

Regarding the robbery, Milici testified that he drove the car without any knowledge that his co-defendant intended to rob the pharmacy. He also minimized the subsequent drug transactions, describing the event as him simply providing the pills to his friend as a favor. Milici rejected the notion that he was a drug dealer by stating, “You- know, I wasn’t out there like selling the. drugs the way [the State’s] making it sound. Somebody asked me for some pills. And I did it.”

Following Milici’s testimony, defense counsel urged the trial court to impose a downward departure sentence. After considering argument from both sides, the trial court ultimately determined that the circumstances justified downward departure. The trial court explained that Mili-ci’s conduct amounted to “an isolated incident for which ... Milici has shown remorse.” The trial court further explained that Milici acted “in an unsophisticated manner.” Based on these findings, the trial court imposed a downward departure sentence of thirty days’ incarceration, followed by one year of community control, followed by three years’ probation. Without the departure, Milici’s scoresheet reflected a minimum sentence of 88.5 months’ incarceration.

The trial court subsequently entered an order detailing the grounds for imposing the downward departure sentences:

1. After an open plea, this court elected to depart from the scoresheet guidelines.
2. The Defendant was on probation for robbery when he was arrested and charged with three counts of sale of a controlled substance.
3. As a backdrop to this entire matter, the Defendant’s mental capacity has been in question. This relates both to his competency and intelligence quotient. The record is replete with the history of evaluations, the Defendant ultimately being found competent to proceed immediately prior to the entry of this plea.
4. As to the robbery, the Defendant never entered the store in question and functioned only as a “getaway” driver. When followed by police, the Defendant immediately pulled over and fully cooperated with law enforcement.
5. As to the Sale of Controlled Substance cases, the Defendant was contacted by a friend (functioning as a confidential informant for law enforcement). The Defendant sold small amounts of controlled substances that he, personally, was lawfully prescribed. At no time did he initiate the transactions, nor did he attempt to purvey them to the general public. The Defendant was extremely apologetic for his actions.

ANALYSIS

We employ a two-step analysis when reviewing a trial court’s imposition of a downward departure sentence. First, we must “determine whether ‘the trial court applied the correct rule of law and whether competent, substantial evidence supports the trial court’s reason for imposing a downward departure sentence.’ ” State v. Browne, 187 So.3d 377, 378 (Fla. 5th DCA 2016) (quoting State v. Leverett, 44 So.3d 634, 636 (Fla. 5th DCA 2010)). Second, if the “trial court’s reason for departure was in accord with the law and supported by competent, substantial evidence, the appellate court must then decide whether the trial court was correct in determining that the downward departure sentence was in the best interest of the defendant.” Leverett, 44 So.3d at 636 (citing State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006)).

Section 921.0026(2), Florida Statutes (2016), sets forth a non-exhaustive list of mitigating circumstances that permit the imposition of a downward departure sentence. In this case, the trial court relied on the following grounds:

(b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
(c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.
(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.

§ 921.0026(2), Fla. Stat. (2016). The burden rests on the defendant to “prove these elements, or other mitigating factors, before the trial court will depart.” Wallace v. State, 197 So.3d 1204, 1205 (Fla. 1st DCA 2016) (citing State v. Jones, 122 So.3d 517, 518 (Fla. 1st DCA 2013)).

We first address the trial court’s departure under section 921.0026(2)(j). This subsection permits downward departure where three elements are present: “(a) the offense must have been ‘committed in an unsophisticated manner,’ (b) the offense must have been ‘an isolated incident,’ and (c) the defendant must have ‘shown remorse’ for the offense.” State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005) (quoting § 921.0026(2)(j), Fla. Stat. (2003). “To justify departure on this basis, all three elements must be articulated by the trial judge and supported by the record.” State v. Cooper, 889 So.2d 119, 119 (Fla. 4th DCA 2004).

Turning to the first element, we note that neither the trial court’s oral pronouncements nor its written order explain how, Milici committed his offenses in an unsophisticated manner, Indeed, the trial court’s written findings do not employ the term “unsophisticated.” The trial, court also failed to make a specific oral finding, stating only, “it was definitely committed in an unsophisticated manner. No one could argue that.” The trial court’s failure to articulate how Milici committed his crimes in an unsophisticated manner alone justifies reversal of the trial court’s downward departure on this ground. See id.

Even if the trial court had entered sufficient findings regarding unsophistication, no competent, substantial evidence supports the trial court’s findings that these offenses were isolated incidents for which Milici showed remorse. Milici’s thirteen prior convictions—which reflect a pattern of crime related to narcotics—should have precluded a finding that his most recent offenses were isolated incidents. Moreover, Milici’s offenses have steadily increased in severity over time; although his original offenses primarily concerned simple possession of narcotics, he has since escalated to obtaining fraudulent prescriptions, attempted trafficking in and sale of narcotics, and even armed robbery. Thus, no competent, substantial evidence supports the trial court’s finding that Milici’s offenses were isolated incidents. See State v. Thompkins, 113 So.3d 95, 99 (Fla. 5th DCA 2013) (“Even if we were to overlook [defendantj’s prior burglary conviction, the remainder of his criminal history would vitiate any suggestion that his current crimes were isolated incidents under the statute.”); State v. Deleon, 867 So.2d 636, 637 (Fla. 5th DCA 2004) (“[Defendantj’s offense could not have been characterized as isolated because his score sheet reflected previous offenses- including four third-degree felonies, one second-degree felony and various misdemeanors.”). •

Addressing the third element, re-morsefulness, the record reflects that Mili-ci refused to accept responsibility for his actions. When testifying about his conviction for armed robbery, Milici maintained that he did not know anything “about fraudulent .prescriptions or anything like that.” Rather, Milici proclaimed that his co-defendant simply asked for a ride. Milici similarly declined to accept responsibility for selling controlled substances, reasoning that he sold prescription ‘drugs to his friend “to do him a favor.” In light of Milici’s testimony, we find that no competent, substantial evidence supports the trial court’s finding that he showed remorse as contemplated by section 921.0026(2)(j). See, e.g., Ayers, 901 So.2d at 945 (“It is impossible for a defendant who refuses to accept responsibility for an offense to show remorse for that offense.”). For these reasons, we find that the trial court abused its discretion insofar as it relied on section 921.0026(2)(j) as a basis for downward departure.

We next address the trial court’s departure under section 921.0026(2)(b), which provides that the trial court may impose a downward departure sentence where “[tjhe defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.” § 921.0026(2)(b), Fla. Stat. Unfortunately, few cases have expanded on what circumstances make one’s participation in criminal activity “relatively minor.” Furthermore, Milici offered no testimony or other evidence supporting the trial court’s departure. on this ground. See State v. Johnson, 197 So.3d 1268, 1269 (Fla. 2d DCA 2016) (reversing downward departure where “[n]o testimony or evidence was presented to support the assertion that [defendant] was a minor participant in the offense”).

Regardless, we disagree that one who obtains a fraudulent prescription, unsuccessfully attempts to fill it, drives his co-defendant to purchase a pellet gun, and drives back to rob the pharmacy is a “minor participant” simply because he or she drove the getaway vehicle in lieu of entering the pharmacy during the robbery. In addition, caselaw supports the State’s position that Milici was not a “relatively minor participant” with regard to his charges for sale of controlled substances simply because he sold narcotics to a confidential informant. See State v. Holsey, 908 So.2d 1159, 1161 (Fla. 1st DCA 2005) (reversing downward departure based upon section 921.0026(2)(b) where defendant sold narcotics to an undercover officer during a sting operation). Accordingly, we find that no competent, substantial evidence supports the trial court’s downward departure under section 921.0026(2)(b).

Finally, we address the trial court’s departure under section 921.0026(2)(e). “For section 921.0026(2)(c) to apply, it is not enough that a defendant simply not know that what he was doing was criminal or wrong; the defendant must have been unable to understand that what he was doing was criminal or wrong.” State v. Johnson, 79 So.3d 146, 148 (Fla. 4th DCA 2012). However, “[t]he fact that the evidence presented the possibility that substance abuse may have been an independent cause of [the defendant]’s impaired capacity does not mean that, as a matter of law, section 921.0026(2)(c) is unavailable as a basis for departure.” Camacho v. State, 164 So.3d 45, 48 (Fla. 2d DCA 2015).

Here, no competent, substantial evidence supports the trial court’s- findings regarding section 921.0026(2)(c). Unlike many cases addressing this issue, Milici presented no expert testimony at the VOP hearing to establish that his alleged mental health issues prevented him from appreciating the criminal nature pf his actions. Cf. id.; State v. Massingill, 77 So.3d 677, 680 (Fla. 3d DCA 2011). The trial court considered expert testimony at the hearing on Milici’s motion to withdraw his plea, but it nonetheless found that he was competent at the time that he entered the plea. In addition, although the trial court noted that Milici had a history of mental ülness, it failed to articulate how that mental illness “substantially impaired” his ability to “appreciate the criminal nature of the conduct.” See § 921.0026(2)(c), Fla. Stat.

CONCLUSION

We recognize that trial courts enjoy a “superior vantage point in assessing the credibility of witnesses and in making findings of fact.” Taylor v. State, 937 So.2d 590, 599 (Fla. 2006) (quoting Stephens v. State, 748 So.2d 1028, 1034 (Fla. 1999)). However, the record in this case reflects that the trial court improperly imposed downward departure sentences not based on the evidence at the hearing, but rather on its own belief that sentencing Milici in accordance with his scoresheet “serve[d] no legitimate purpose.” See State v. Chesney, 509 So.2d 380, 381 (Fla. 2d DCA 1987) (“[T]he judge’s own belief that a reduced sentence is more appropriate is an impermissible reason for departure.” (citing Williams v. State, 492 So.2d 1308, 1309 (Fla. 1986))). Indeed, the trial court’s oral pronouncements at the sentencing hearing demonstrate that it did not truly believe that any enumerated mitigating circumstances justified downward, departure.

Based on the foregoing, we find that no competent, substantial evidence supports the trial court’s reasons for departure. Accordingly, we reverse Milici’s sentences and remand for resentencing. We note that, on remand, the trial court may still impose a downward departure sentence “if such a sentence is supported by valid grounds.” State v. Lindsay, 163 So.3d 721, 725 (Fla. 5th DCA 2015) (citing Jackson v. State, 64 So.3d 90 (Fla. 2011)). Otherwise, the trial court must impose sentences that comport with the applicable statutes.

REVERSED and REMANDED for Re-sentencing.

COHEN, C.J. and LAMBERT, J., concur.

      . The State later nolle prossed count 3 for trafficking in oxycodone,

      . The trial court prefaced its ruling by stating, "Let me tell you something, what I'm doing is probably going to be appealed and probably reversed, but I'm going to do it anyway.”


text:
    Thomas LIN, Appellant, v. Jerry L. DEMINGS, in his official capacity as Sheriff of Orange County, Florida, Appellee.
    Case No. 5D15-4271
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Rehearing Denied May 30, 2017
    Daniel A. Perez, of Hogan & Hogan, P.A., Orlando, for Appellant.
    Marc A. Sugerman and Mark E. Levitt, of Allen, Norton & Blue, PA, Winter Park, for Appellee.
   PER CURIAM.

Deputy Thomas Lin appeals the trial court’s grant of summary judgment in favor of Sheriff Jerry L. Demings in this age discrimination case filed under the Florida Civil Rights Act (“FCRA”). Lin joined the Orange County Sheriffs Department in 1988 and was assigned to the marine unit in 1993. In 2009, Lin turned fifty years old. Lin complained that the Sheriff subjected him to several adverse employment actions because of his age including, among other things, a ten-hour suspension without pay and a transfer out of the marine unit back to road patrol duties. Because disputed issues of material fact exist on the issue of pretext, we reverse.

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)); accord Koresko v. Coe, 683 So.2d 602, 603 (Fla. 2d DCA 1996) (quoting Snyder v. Cheezem Dev. Corp., 373 So.2d 719, 720 (Fla. 2d DCA 1979)). In analyzing a motion for summary judgment, the trial court and the appellate court are not permitted to weigh the evidence nor may they determine the credibility of the witnesses. Jones v. Stoutenburgh, 91 So.2d 299, 302 (Fla. 1956) (citing Yost v. Miami Transit Co., 66 So.2d 214 (Fla. 1953)); Alvarez-Mejia v. Bellissimo Props., LLC, 208 So.3d 797, 799 (Fla. 3d DCA 2016) (citing Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345 (Fla. 3d DCA 1999)).

The burden is on the movant to demonstrate the absence of genuine issues of material fact. See Holl v. Talcott, 191 So.2d 40, 43-44 (Fla. 1966); Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1116-17 (Fla. 2d DCA 2011) (citing Estate of Githens, 928 So.2d at 1274). “[I]f the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Taylor, 74 So.3d at 1117 (quoting Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000)); accord Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000) (citing Hancock v. Dep’t of Corr., 585 So.2d 1068 (Fla. 1st DCA 1991)).

In age discrimination cases under the FCRA, the employee must establish a prima facie case for age discrimination before the burden of production, but not the burden of persuasion, will shift to the employer to produce a legitimate nondiscriminatory reason for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Valenzuela v. GlobeGround N. Am., LLC, 18 So.3d 17, 21 (Fla. 3d DCA 2009). The existence of a prima facie case creates a rebuttable presumption of unlawful discrimination. McDonnell Douglas Corp., 411 U.S. at 802-03, 93 S.Ct. 1817; Valenzuela, 18 So.3d at 22. After the employer produces a legitimate non-discriminatory reason for the adverse employment action, the rebut-table presumption of discrimination ceases to exist, and the employee must demonstrate that the reasons offered by the employer were pretextual. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Valenzuela, 18 So.3d at 22 (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 152, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). The. employee must show that the reasons given by the employer are false and that age discrimination was the real reason for the adverse employment action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 169-70, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009); Burdine, 450 U.S. at 258, 101 S.Ct. 1089; Valenzuela, 18 So.3d at 25.

Although the Sheriff presented evidence suggesting that Lin’s ten-hour suspension without pay and transfer out of the marine unit were the result of legitimate, nondiscriminatory reasons, and, thus, not pretextual, Lin presented conflicting evidence that was susceptible to a reasonable inference that the Sheriffs reasons for instituting the adverse employment action against him were, in fact, pre-textual. As such, it was error to enter summary judgment in this case. See Feizi v. Dep’t of Mgmt. Servs., 988 So.2d 1192, 1193 (Fla. 1st DCA 2008).

Accordingly, we reverse the order granting summary judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

BERGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.

      . § 760.10(1)(a), Fla. Stat. (2009).

      . Because the FCRA was derived from federal statutes, federal case law is applicable to cases brought under the FCRA. See Sunbeam Television Corp. v. Mitzel, 83 So.3d 865, 867 n.3 (Fla. 3d DCA 2012); Valenzuela, 18 So.3d at 21.

      . We also note that the trial court improperly weighed the evidence during certain points of its analysis, including when it dismissed as "too tenuous” Lin’s allegations that his replacement in the marine unit was in turn replaced by a substantially younger deputy. Furthermore, the trial court's use of the stray comment doctrine to label and disregard statements that Lin alleged evidenced discriminatory intent constituted weighing the evidence and was inappropriate at the summary judgment stage. See Reeves, 530 U.S. at 152, 120 S.Ct. 2097; Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115-16 (2d Cir. 2007), abrogated on other grounds by, Gross, 557 U.S. at 176-78, 129 S.Ct. 2343; Usher v. Nipro Diabetes Sys., Inc., 184 So.3d 1260 (Fla. 4th DCA 2016).


author: SALARIO, Judge.

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. UNITED CAPITAL FUNDING CORP., Appellee.
    Case No. 2D14-2249
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017

      . Appeal from the Circuit Court'for Pinel-las County;’ Jack Day, Judge.
    Theodore A. Avellone and Marc Peoples, Assistant General Counsels, Department of Transportation, Tallahassee, for Appellant, .
    Michael Ullmaii of Ullman & Ullman, P.A., Boca Raton, for Appellee.
    Lisa Paige Glass of Glass Law Office, P.A., Boca Raton, for Amicus Curiae, International Factoring Association.
   SALARIO, Judge.

The Florida Department of Transportation appeals from a final summary judgment declaring it legally obligated to United Capital Funding Corp. for the payment of certain accounts receivable that had been assigned to United Capital by one of the Department’s vendors, Arbor One, Inc. The appeal centers on a .provision of Article 9 of the Uniform Commercial Code— codified at section 679.4061, Florida Statutes (2012)—stating that, after receiving notice of an assignment, the debtor on an account receivable can discharge its contractual obligation to pay the account only by making payment to the assignee and not the assignor. The Department was originally under a contractual obligation to pay Arbor One for services Arbor One provided. Arbor One sold its right to be paid for those services to United Capital, but the Department continued to pay Arbor One despite having received notice of that sale. The issues in this case are (1) whether the statute governs when a government agency is the account debtor and, if so, (2) whether sovereign immunity bars a suit against the government agency by an assignee when the agency improperly pays the assignor instead of the assignee.

We answer the first question in the affirmative and the second question in the negative. As a result, we conclude that once Arbor One’s accounts receivable were sold, the Department could discharge its contractual obligation to pay for those services only by paying United Capital as required by section 679.4061 and that sovereign immunity does not bar United Capital’s suit against the Department to enforce its contractual obligation to pay. We therefore affirm the summary judgment in favor of United Capital.

I.

A.

The case involves the business of factoring. Factoring is a financial arrangement through which a business can obtain immediate funding from a third party by using its accounts receivable—sums owed to the business by its customers, usually on invoices for goods sold or services provided—as consideration. In a factoring arrangement, the business sells its accounts receivable to a third party, called a factor, at a discount from their face value. The factor takes ownership of the accounts receivable and, as a consequence, takes the sole right to receive the entirety of payments previously owed to the business. Ordinarily, the factor notifies the debtor on the sold accounts of the change in ownership and thereafter receives payments directly from the account debtor.

Factoring relationships implicate Article 9 of the UCC because Article 9 applies to the sale of accounts, including accounts receivable. § 679.1091(l)(c). In that connection, section 679.4061 defines the rights and obligations of the business that originates and sells the accounts receivable, the debtors on the accounts, and the third parties to whom the accounts are sold. As applied to a factoring arrangement, the statute provides that an account debtor makes payments to the business .originating the account until such time as it is notified by either the business or the factor that the account has been assigned to the factor. § 679.4061(1). Once that notification is given, an account debtor must make all further payments to the factor, subject to a right of the account debtor to demand proof from the business or the factor that the account has in fact been assigned. §§ 679.4061(1), (3). The statute also provides that any term in an agreement between the business originating the accounts and its debtors that prohibits or restricts the assignment of the accounts is ineffective. § 679.4061(4)(a).

One effect of the statute is to place an account debtor at risk if, after it receives notice of the assignment, it continues to pay the business that originated the account instead of the factor who bought the right to be paid under it. The statute provides that a payment made to the business after notice has been given does “not discharge the obligation” owed by the account debtor on the account. § 679.4061(1). An account debtor who continues to pay the business that originated the account after receiving notice that the account has been assigned can be held liable to the factor for the full amount of the account notwithstanding its payment of that same amount to the business. See Bldg. Materials Corp. of Am. v. Presidential Fin. Corp., 972 So.2d 1090, 1092 (Fla. 2d DCA 2008) (“[A] debtor who receives actual notice of the assignment of an account receivable ... may be held liable to the assignee if the debtor later pays the assigned debt to the assignor rather than the assignee.”). This is sometimes referred to as a risk of double payment.

B.

The Department entered into several contracts with Arbor One, pursuant to which Arbor One provided it with roadside maintenance services and the Department agreed to pay Arbor One for services rendered. The Department became, in UCC terms, an account debtor with an obligation to pay Arbor One. Arbor One later entered into a factoring arrangement with United Capital. Under that arrangement, Arbor One assigned the accounts receivable generated under its contract with the Department to United Capital, making Arbor One the assignor of those accounts and United Capital the assignee.

United Capital notified the Department of the assignments in writing. The written notifications described the arrangement between Arbor One and United Capital, explained that Arbor One had assigned its accounts receivable to United Capital, stated that all future payments should be made to United Capital, and stated that payment to any other party would not discharge the Department’s obligations on the accounts. Although it received the notices, the Department nonetheless continued to pay Arbor One and refused to pay United Capital.

In response, United Capital filed this declaratory judgment action against the Department seeking to enforce its rights to payment of the accounts receivable that Arbor One assigned to it, which in its view was required by section 679.4061(1). It later filed a motion for summary judgment that, as relevant here, the Department opposed on two principal grounds. First, the Department argued that section 679.4061(1) does not apply where, as here, a government agency is the account debtor on assigned accounts receivable. Second, the Department argued that it was entitled to sovereign immunity because the Department had not originally contracted with United Capital and had not otherwise agreed to make contract payments to it.

The trial court rejected the Department’s arguments, granted United Capital’s motion for summary judgment, and entered a final judgment in United Capital’s favor. The Department timely appealed.

II.

In this case, there is no dispute as to any of the salient facts. The trial court’s determinations that the Department was obligated under section 679.4061(1) to make payments directly to United Capital and that sovereign immunity did not bar United Capital’s claims against the Department resolved pure questions of law. Our review is de novo. See Shaw v. Tampa Elec. Co., 949 So.2d 1066, 1069 (Fla. 2d DCA 2007); Allstate Ins. Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006).

A.

■ We first consider whether section 679.4061(1) applies when a government body like the ■ Department stands in the role of account debtor. We hold that it does.

Section 679.4061 is titled “Discharge of account debtor; notification of assignment; identification and proof of assignment; restrictions on assignment of accounts, chattel paper, payment intangibles, and promissory notes ineffective.” Overall, the statute provides for free alienability of accounts, chattel paper, and payment intangibles by invalidating certain contractual and legal restrictions on their sale and specifies the rights and obligations ,of the parties when a sale of such assets occurs. §§ 679.4061(1), (4), (6). As concerns the rights and obligations of the parties, subsection (1) of section '679.4061 provides as follows:

[A]n account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, .that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.

If the statute governs here, the Department, as an account debtor on the accounts receivable Arbor One assigned to United Capital, could discharge its contractual obligation to pay those accounts receivable only by paying,United Capital as-the as-signee, and its failure to do so would subject the Department to liability to United Capital.

On the face of it, there is no question that section 679.4061(1) is by its terms operative on these facts because there is no question that the statutory term “account debtor”—which identifies the category of persons obligated to make payment to an assignee of accounts receivable— reaches government agencies like the Department, Article 9 of the UCC defines “account debtor” as “a person obligated on an account, chattel paper, or géneraí intangible.” § 679.1021(1)(c). The general definitions section of the UCC, in turn, defines “person” to- include a “government” or “governmental subdivision, agency, or instrumentality” unless the context in which it is used indicates otherwise. § 671.201(30), Fla. Stat. (2012). We see nothing in sections 679.1021(c) or 679.4061(1) to indicate that the terms “account debtor” and “person” do not mean what the definitions say they mean. As such, we give, the term “account debtor” the meaning the legislature gave it. See Nicholson v. State, 600 So.2d 1101, 1103 (Fla. 1992). That meaning includes the Department, which renders 679.4061(1) operative as to the Department’s discharge of its obligation on assigned accounts receivable.

The Department argues, however, that another provision of Article 9 places governmental account debtors outside the reach of that statute. It points to section 679.1091, titled “Scope,” and in particular to subsection (4)(n), which states that “[t]his chapter does not apply to ... [a]ny transfer by a government or governmental unit.” It asserts that because its payments on the accounts receivable at issue involve transfers of money by a governmental unit, the so-called government-transfer exception in section 679.1091(4)(n) prevents section 679.4061(1) from regulating how it may discharge its contractual obligation to make payment for the services Arbor One rendered to it. If the provisions of section 679.4061(1) could be read to “apply to” a “transfer” by a governmental unit where the governmental unit is merely an account debtor making a payment to the assignee of an account receivable rather than the assignor of that account, then the Department’s argument here would be correct. But, as we explain, the plain language of section 679.1091 excludes this construction.

The only published decision to address this question is MP Star Financial, Inc. v. Cleveland State University, 107 Ohio St.3d 176, 837 N.E.2d 768 (Ohio 2006), which held - that Ohio’s analog to section 679.4061(1) does not apply to governmental account debtors. In MP Star, a vendor to a state university sold its accounts receivable to a factor. Although the factor provided notice of the assignment to the university, the university continued paying the original vendor. The factor sued the university asserting that Ohio’s codification of Article 9’s provision governing discharge upon assignment—identical to Florida’s—required that the university pay it rather than the vendor. The university moved to dismiss on the grounds that Ohio’s codification of the government-transfer exception—also identical to Florida’s—precluded the factor’s claim. The trial court dismissed the action, and the intermediate appellate court affirmed. Id. at 760.

The Ohio Supreme Court also affirmed in favor of the university based on its interpretation of the term “transfer.” Id. at 762. It noted that the statute did hot define “transfer” and reasoned that it must therefore give that term its “common, everyday meaning.” Id. at 761. It consulted two dictionaries, which variously defined “transfer” as “[t]he conveyance or removal of something” from one person to another and “[a]ny mode of disposing of or parting with an asset ..., including the payment of money.” Id. (alterations in original). Applying those definitions, the court held that the government’s payment on an account receivable involves a transfer of money and was thus outside the' scope of Ohio’s analog to section 679.4061(1). Id.

Unsurprisingly, the Department argues that MP Star got it right, while United Capital says the opposite. Although we agree with MP Star on the basic principles of statutory interpretation that resolve the case—that we apply unambiguous statutory language as written, see Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984), and give undefined statutory terms their common, everyday meaning, see Am. Heritage Window Fashions, LLC v. Dep’t of Revenue, 191 So.3d 516, 520 (Fla. 2d DCA 2016)—we disagree that these principles lead to the conclusion that section 679.4061(1) is inoperative in circumstances where a governmental unit is merely the account debtor.

We think that MP Star’s interpretation of the statute, is incomplete. It construed only one word in the government-transfer exception—it held that the word “transfer” includes a payment of money— without regard to. the remaining text of that section. See Am. Heritage Window Fashions, LLC, 191 So.3d at 521 (stating that statutory provisions must be construed as a whole). By its express terms, however, the government-transfer exception is implicated only in circumstances where Article 9 otherwise “applies to” a transfer by the government. § 679.1091(4)(n) (“This chapter does not apply to ... [a]ny transfer by ... a governmental unit.” (emphasis added)). That requires that we determine whether holding that section 679.4061(l)’s provisions regulating discharge of an obligation upon assignment of an account receivable are operative as against a governmental account debtor is to “apply” Article 9 to a government transfer. MP Star neither asked nor answered that question.

In everyday usage, section 679.1091(4)(n)’s provision that “[t]his chapter does not apply to .... [a]ny transfer ... by a governmental unit” is understood this way: “[t]his chapter” is the subject of the sentence; “does not apply” is the predicate verb phrase; and the noun phrase “[a]ny transfer ... by a governmental unit” is the object of that predicate. See Mark Lester & Larry Beason, The McGraw-Hill Handbook of English Grammar and Usage, 33 (2d ed. 2013). “This chapter” clearly encompasses all of section 679.4061(1). “[D]oes not apply to” then clearly restricts applying section 679.4061 to government transfers that would otherwise be included. We are left with addressing whether an account debt- or’s payments on accounts receivable in accord with section 679.4061 are transfers to which Article 9 is being applied. Put differently, the question is whether an account debtor’s payments on accounts receivable are objects of section 679.4061.

The text of section 679.1091—the statute that defines the scope of Article 9 and of which the government-transfer exception is a part—makes clear that the answer to that question is no. Section 679.1091(1) defines the scope of Article 9—i.e., it defines the things to which Article 9 applies. As relevant here, that subsection states that “[tjhis chapter applies to ... a sale of accounts, chattel paper, payment intangibles, or promissory notes.” § 679.1091(l)(c) (emphasis added). Although the statute unambiguously says that it applies to sales of accounts like Arbor One’s sale of accounts receivable to United Capital, it does not say that Article 9 applies to money or transactions in money as such, like the Department’s transfer of money to discharge its contractual obligation on an account. In other words, the plain terms of section 679.1091(1) establish that Article 9 does not apply as an initial matter to the transfer of money involved when an account debtor pays on an account receivable in order to discharge its contractual obligation to make that payment.

Because transfers of money to pay accounts receivable are not within the defined scope of Article 9—i.e., are not something to which Article 9 applies—the government-transfer exception cannot be deemed to exclude that transfer from a scope of operation to which it never belonged. Section 679.1091(1) states that the items it lists are within the scope of Article 9 “except as otherwise provided in subsections (3) and (4).” (Emphasis added.) That necessarily means that the exceptions stated in section 679.1091(4), which include the government-transfer exception, are items to which Article 9 would have applied had the legislature not removed them from its scope. Transfers of money to make payment on an account, chattel paper, or payment intangible—as distinguished from the sales of such assets themselves—are not something to which Article 9 applies as an initial matter. See § 679.1091(1). As a result, we can only interpret section 679.4061(l)’s regulation of an account debtor’s obligations upon assignment of an account, chattel paper, or payment intangible as applying to the transfer of the asset itself (here, the sale of the accounts receivable by Arbor One to United Capital), which is within the scope of Article. 9, and not as applying to the transfer of money involved in discharging the account debtor’s contractual obligation to make payments on that account, chattel paper, or payment intangible (here, the Department’s payments on accounts receivable), which is not.

This interpretation is confírméd by the text of section 679.4061, which governs sales of accounts, chattel paper, and payment intangibles and contains the discharge-upon-assignment provision to which the Department objects. Section 679.4061 invalidates restrictions on sales of those assets, specifies the various parties involved in such sales, and defines their rights and obligations vis-á-vis each other. As implicated here, it identifies the person to wl]om an account debtor owes performance both before and after the sale and directs performance to that person in order for the account debtor’s obligation to be discharged. § 679.4061(1) (“After receipt of the notification, the account debtor may discharge its obligation .... ”). To be sure, the manner in which an account debt- or discharges its obligation is by paying the money it owes on the account, chattel paper, or payment intangible, which MP Star regards as a type of transfer. But defining a transfer to include a payment does not mean that the payment is the transfer to which the statute applies. On the contrary, the statutory text shows that the transfer to which the statute applies— the transfer that is the object of the statute—is a transfer of accounts, chattel paper, or payment intangibles, not a transfer of money as payment- to satisfy an account debtor’s obligation on one of those items.

In sum, then, the government-transfer exception created by section 679.1091(4)(n), by its own terms, is not implicated by the mere fact that the government happens to be an account debtor required to make a payment on an account, chattel paper, or payment intangible that has been assigned. If a government actor sold such assets, that would be a different story. Article 9 generally applies to such sales, and the sale of an account, chattel paper, or payment intangible by a governmental body would be a transfer of that asset, which would be a transfer by a governmental unit within the meaning of section 679.1091(4)(n). That circumstance, however, is not what the facts of this case present. Here, the accounts receivable were sold by Arbor One to United Capital, and the Department, as the governmental account debtor, was owed notice of the sale under the statute for the purpose of sending the same payments it always owed. The text of section 679.4061 shows that its object—the thing it applies to—is the assignment of accounts, chattel paper, and payment intangibles. In this case, that occurred through a sale of accounts receivable, by a nongovernmental entity, not the payment on those accounts by a governmental one.

B.

The Department contends that even if it is governed by section 679.4061(1), sovereign immunity affords it a complete defense to United Capital’s claims. It argues that sovereign immunity prevents it from becoming obligated to pay United Capital, notwithstanding Arbor One’s assignment of accounts to United Capital, because it never entered into a contract with United Capital. We disagree and hold that the Department, having entered into a contract with Arbor One, was bound by the rules governing assignment of Arbor One’s express contract rights in the same way that any other contracting party would have been bound.

Sovereign immunity affords the government a privilege not to be sued without its consent. See City of Ft. Lauderdale v. Israel, 178 So.3d 444, 446 (Fla. 4th DCA 2015). Our constitution allows the legislature to waive that immunity by general law. Art. 10, § 13, Fla. Const. Here, the legislature has by general law waived the Department’s immunity on contract claims:

Suits at law and in equity may be brought and maintained by and against the department on any contract claim arising from breach of an express provision or an implied covenant of a written agreement .... In any such suit, the department and the contractor shall have all of the same rights and obligations as a private person under a like contract ....

§ 337.19(1), Fla. Stat. (2012). The question is whether a claim by an assignee of contractual accounts receivable—here, United Capital—based on the Department’s failure to payas required by the contract falls outside of this waiver. We think that it does not.

The supreme court discussed the doctrinal basis for sovereign immunity waivers in contract cases in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4 (Fla. 1984). There, a vendor to the Department of Corrections (DOC) sued for breach of contract, seeking lost profits as damages'. The trial court granted summary judgment to DOC baséd on sovereign immunity, holding that the- legislature had not adopted a statute authorizing contract suits against it. The First District affirmed and certified a question as to whether sovereign immunity bars a claim for breach of contract by a private vendor who has suffered -lost profits against a- state agency. 1⅛ at 5. .

The supreme court answered that question in the negative and quashed the First District’s decision. Id It reasoned that although the legislature had not explicitly waived sovereign immunity for contract claims against DOC, it had by general law both empowered it to enter into contracts and also authorized certain activities'that required it to have the power to contract. Id. It explained that if sovereign immunity barred a contract claim against DOC, the contracts it entered would be invalid and unenforceable in circumstances where the legislature, by authorizing DOC to enter into those contracts, plainly contemplated that the contracts should be valid and enforceable. Id The codrt thus held that “where the state has entered into a contract fairly authorized by . general law, the defense of sovereign immunity will not protect the state from action arising from the state’s breach of the contract.” Id

A necessary implication of Pan-Am’s sovereign immunity analysis is that, unless, the legislature has specified that different standards apply, the government’s obligations under the terms of an express written contract it was authorized by law to enter are subject to the same standards of contract performance and enforcement that would apply to a private party. See also Chiles v. United Faculty of Fla., 615 So.2d 671, 679 (Fla. 1993) (Shaw, J., concurring in part and dissenting in part) (“Once the State enters the arena of formal contracts, it waives any right to special treatment when it reneges on its promises”). Pan-Am hinges on the notion that when the legislature authorizes the government to make a contract, it intends for the contract to be performed and for nonperformance to be enforceable in a civil action against the government. 471 So.2d at 5. An established body of common law and statutory rules governing contracts serves that function. Without that law or a legislative alternative to it, the perform-anee and enforcement of contracts to which the government is a party would at best be indeterminate and thus contrary to the statutory authorization allowing the government to make contracts in the first place. As such, where the government has entered into an express written contract that it is statutorily authorized to enter, sovereign immunity cannot protect it from thé same contract rules that govern the performance of the express written contract obligations of a private party to a contract.

Since Pan-Am, Florida courts have regularly considered sovereign immunity defenses in contract suits consistent with the notion that the government is subject to the same terms of contract performance and enforcement as a private party. For example, the supreme court has recognized that, like a private party, the government can be held liable for its breach of covenants that are implied by law into “Virtually every contract.” Cty. of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049, 1050 (Fla. 1997) (quoting Champagne-Webber, Inc. v. City of Fort Lauderdale, 519 So.2d 696, 697-98 (Fla. 4th DCA 1988)). It has also , held that the government is liable .for prejudgment interest in a breach of contract action in the same way that a private party is. Broward Cty. v. Finlayson, 555 So.2d 1211, 1213 (Fla. 1990). And, most relevant to the facts of this case, in Kohl v. Blue Cross & Blue Shield of Florida, 988 So.2d 654, 659 (Fla. 4th DCA 2008), the Fourth District relied on Ban-Am to hold that sovereign immunity did not protect the State from a contract claim based on allegations that a state-run health insurer continued paying medical benefits directly to patients after being informed that the patients had assigned their contractual rights to those payments to the doctor who had provided the medical, services to them.

The same .result applies in this case. Section 679.4061(1)⅛ provision governing discharge upon assignment establishes a rule of contract performance: it determines how a party to a contract may discharge an obligation to make payment on an account created by virtue of that contract—i.e., how it can perform its contractual obligation to pay—after the party has been notified the account has been assigned. Cf. Bldg. Materials Corp., 972 So.2d at 1092 (applying section 679.4061(1) in the context-of a claim for'breach of contract). The 'Department all but concedes that this rule would govern in a contract dispute between private parties. For the reasons we have explained, the rule governs here as well. See also Mooney v. Univ. Sys. of Md., 178 Md.App. 637, 943 A.2d 108, 110-12 (2008) (holding that sovereign immunity did not protect state agency from liability based on failure to pay assignee of contractual account receivable), reversed on other grounds, 407 Md. 390, 966 A.2d 418 (2009).

The Department relies on cases like Israel, 178 So.3d 444, and City of Orlando v. West Orange Country Club, Inc., 9 So.3d 1268 (Fla. 5th DCA 2009), to argue that sovereign immunity prevents it from having to pay United Capital. Those cases are inapposite. In each ease the Department cites, a party sought to compel a government agency to perform an obligation that was not stated in an express written contract. Since Pan-Am and, as applicable here, section 337.19(1) waive sovereign immunity only as to an express written contract, sovereign immunity bars an action to enforce obligations not contained in such a contract. See Israel, 178 So.3d at 447; West Orange Country Club, 9 So.3d at 1272-73. But those are not the circumstances of this case. The Department’s written contract expressly requires the Department to pay for the services Arbor One rendered, and sovereign immunity does not protect the Department.

III.

In sum, we hold that the government-transfer exception in. Article 9 of the UCC does not exempt a government agency in its role as account debtor from the discharge upon assignment provision of section 679.4061(1). We. further hold that assuming that the other requirements of section 679.4061(1) have been satisfied, where a government agency enters into an authorized and express written contract containing a payment obligation, sovereign immunity does not protect the agency from a claim by the assignee of contractual accounts receivable for failure to pay. Finding ho merit in the Department’s remaining arguments, we affirm the trial court’s final summary judgment.

Affirmed.

CASANUEVA and WALLACE, JJ., Concur.

      . The Department also asserts that the trial court erred by denying its motion to transfer venue, denying its motion to dismiss in favor of arbitration, and in granting summary judgment because United Capital had not complied with conditions precedent to suit. Without further comment, we find no merit in these issues.

      . We note that even if section 67.9.4061(1) does not govern the manner in which the Department discharges its payment obligation after an assignment, it is quite possible that ordinary contract law would command the same result. See generally Restatement (Second) of .Contracts, § 338(1) (Am, Law Inst. 1977). Although the briefs allude to this possibility, the argument was not developed either in the trial court or here. Accordingly, we decline to address it.

      . United Capital does not dispute, and we agree, that the Department is a "governmental unit” within the meaning of section 679,’1091(4)(n). See § 679.1021(1)(ss) (defining "governmental unit” to include “a department ... of ... a state”).

      . The Department also notes that its contract with Arbor One contained an antiassignment clause, The' clause appears to be contained in ’' certain standard contract specifications developed by the Department. We agree with United Capital that the Department on our record fails to establish that these standard specifications applied to its roadside maintenance contracts with Arbor One.


text:
    Julius Erwin BLACK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4327
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017

      Julius Erwin Black, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel Perrone, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Julius Erwin Black appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Because the trial court lacked jurisdiction to rule on the motion, we reverse.

In March 2016, Black filed a rule 3.850 motion raising nine claims of ineffective assistance of counsel, which the trial court summarily denied on all grounds. He appealed the summary denial in case number 5D16-1952. Black then filed two successive motions to amend his original 3.850 motion, which the trial court denied. He appealed these denials in case number 5D16-3695.

Our court first ruled on Black’s appeal of the summary denial (5D16-1952), affirming all claims except claim 7, in which Black argued trial counsel provided ineffective assistance by not calling his co-defendant, Phillip Snead, as a defense witness. Black v. State, 202 So.3d 466, 467 (Fla. 5th DCA 2016). We reversed the denial of claim 7 and remanded for the trial court to attach records conclusively refuting the claim or to hold an evidentiary hearing. Id. On remand, the trial court entered a new order, once more summarily denying claim 7. Black then filed the instant appeal, with his second appeal (5D16-3695) still pending.

We find that the trial court lacked jurisdiction to consider claim 7 of Black’s rule 3.850 motion on remand while his appeal in case number 5D16-3695 remained pending. Generally, “a trial court has authority to consider or to defer ruling and stay a subsequently filed postconviction motion that raises unrelated issues notwithstanding the pendency of an appeal of an order on a previously filed postcon-viction motion.” Jackman v. State, 88 So.3d 325, 327 (Fla. 4th DCA 2012). However, “if the subsequent motion raises the same or related issues to those on appeal, the trial court may not consider the merits while the related appeal is pending.” Id. Here, the trial court lacked jurisdiction to consider claim 7 on remand because Black’s pending appeal in case number 5D16-3695 also concerned the merits of claim 7. Accordingly, we reverse the trial court’s summary denial of claim 7 and remand with instructions to consider that claim in conjunction with the second motion to amend.

REVERSED and REMANDED with Instructions.

SAWAYA, BERGER and WALLIS, JJ., concur.

      . Our court has since ruled on this appeal.


author: PALMER, J.

text:
    INTERNATIONAL SPECIAL EVENTS AND RECREATION ASSOCIATION, INC., Prime Insurance Company and Certain Underwriters at Lloyd’s London Subscribing to Policy Number LAP0334, Petitioners, v. Matthew BELLINA and Surf Slide, LLC, Respondents.
    Case No. 5D16-4021
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Erin M. Raschke, Matthew L. Litsky, and Sarah B. Van Schoyck, of Phelps Dunbar LLP, Tampa, and Elizabeth K, Russo, of Russo Appellate Firm, P.A, Miami and Green & Ackerman, P.A., Boca Raton, for Petitioners.
    Robert P. Major, of Ver Ploeg & Lump-kin, P.A., Orlando, for Respondent Matthew Beilina.
    No appearance for other respondents.
   PALMER, J.

International Special Events and Recreation Association, Inc. (ISERA), Prime Insurance Company (Prime), and Certain Underwriters at Lloyd’s London Subscribing to Policy1 Number LAP0334 (Underwriters) (collectively, Insurers), filed a petition seeking a writ of certiorari quashing the disposition portion of the circuit court’s order which addressed their respective motions to dismiss the complaint for declaratory relief filed by Respondent, Matthew Behind (Beilina). We grant the petition and quash the disposition portion of the trial court’s order.

Beilina filed a personal injury lawsuit against Surf Slide, contending that he was injured, in part, as a result of Surf Slide’s negligence. While that suit was pending, Beilina filed a Complaint for Declaratory Relief alleging, in pertinent part, that:

[a]s a third party beneficiary under the [Insurance] Policy [issued by Insurers to Surf Slide], Matthew Beilina is entitled to bring this action in this Court, to obtain a judicial declaration resolving the question whether the [Insurance] Policy issued by the [Insurers] to Surf Slide provides coverage to Surf Slide for Matthew Beilina's bodily injury claim and suit against Surf Slide.

The complaint acknowledged the existence of Florida’s Nonjoinder Statute, section 627.4136,Florida Statutes (2016), which provides, in pertinent part:

627.4136.Nonjoinder of Insurers
(1) It shah be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(2) ... No person who is not an insured under .the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a settlement or verdict against a person who is an insured under, the terms of such policy for a cause of action which is covered by such policy.

However, the complaint averred that sec-tibn 627.4136 did not apply to the instant law suit because Insurers are surplus lines insurers governed by section 626.913(4) of the Florida Statutes (2016). That statute provides:

626.913 Surplus Lines Law; short title; purposes
(4) Except as may be specifically stated to apply to surplus lines insurers, the provisions of chapter 627 do not apply to surplus lines insurance ...

Insurers filed motions to dismiss the complaint, arguing that Beilina-had no right or standing' to file a suit raising insurance coverage issues given his failure to comply with the presuit requirements of section 627.4136.Upon review, the trial court correctly held that the language of section 627.4136 is sufficiently specific to apply to actions brought against surplus lines insurers pursuant to section 626.913(4) and, as such, Beilina must comply with the conditions precedent of section 627.4136(1) before he can pursue an action against Insurers. Yet, instead of granting Insurers’ motions to dismiss, the court denied the motions and abated/stayed Beilina’s action pending his compliance with section 627.4136(1).

Insurers filed a petition for writ of certiorari, seeking to quash the disposition portion of the trial court’s order, arguing that the disposition should have been dismissal. Wé agree.

Generally, a party may not obtain a writ of certiorari to quash an order .de- . nying a motion to dismiss. See Universal Sec. Ins. Co. v. Spreadbury, 524 So.2d 1167, 1167 (Fla. 2d DCA 1988). But where an insurer asserts that the pre-suit requirements of section 627.4136 have not been met, certiorari review is appropriate. See id.; Cincinnati Ins. Co. v. Moffett, 513 So.2d 1345, 1346 (Fla. 1st DCA 1987). We believe that the irreparable harm in such cases arises from the fact that an insurer is being forced to litigate an action brought by a third-party plaintiff which would be barred if, in fact, the requirements of section 627.4136 have not been met.

S. Owners Ins. Co. v. Mathieu, 67 So.3d 1156, 1157-58 (Fla. 2d DCA 2011).

Accordingly, we grant the petition and remand this matter for the entry of a dismissal order.

Petition GRANTED; Trial Court Order QUASHED in part; Cause REMANDED.

COHEN, C.J. and LAMBERT, J., concur.