author: Per Curiam. Forst, J., dissenting.

text:
    Christopher D. FREEMAN, Appellant, v. OMEGA CONDOMINIUM NO. 10, INC., Appellee.
    No. 4D17-1320
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    Christopher Freeman, Plantation, pro se.
    No appearance for appellee.
   Per Curiam.

The parties entered into a settlement agreement in 2016, whereby Appellant Christopher Freeman agreed to provide access to his unit on a particular day. The settlement agreement stated that, following inspection by Appellee Omega Condominium No. 10, Inc., the trial court would "hold a hearing to determine if [Appellee was] entitled to fees and costs" and the amount awardable. There is no indication in the record that the issue of Appellee's entitlement to prevailing party fees was ever subjected to an evidentiary hearing. Therefore, we reverse.

The dissent focuses on the fact that the transcript of the May 17, 2016 hearing before Judge Lynch in the appellate record is an excerpt. However, we are satisfied that the excerpt pages are sequentially numbered, with no pages missing, and the flow of the dialogue in those pages does not appear to skip over a portion of the hearing. We acknowledge that at the hearing to determine the amount of fees, Appellee's counsel argued to Judge Bidwill that the transcript of the May 17 hearing is missing sixty pages, the accuracy of which we question. We conclude that the alleged missing pages could not have recorded the presentation of evidence on entitlement for two reasons. First, the trial clerk's progress notes submitted as part of the appellate record does not indicate any evidence was presented at the May 17 hearing. Second, and more importantly, the statements of Judge Lynch in the transcript excerpt strongly negate the conclusion that evidence on entitlement was heard earlier in the hearing.

A review of the first five pages of the excerpt clearly shows a discussion by Judge Lynch about what was actually set for a hearing that day, including discussion about a motion for protective order and motion to compel. There was also discussion about what was heard during proceedings on May 9. Immediately thereafter, Judge Lynch asked Appellee's counsel, "So it is your position that we are here today on the entitlement issue," to which Appellee's counsel replied, "Yes." Judge Lynch then turned to Appellant in inquire about his motion to continue the entitlement hearing, which Judge Lynch received the night before or that morning, as follows:

My question is real simple once I figure out what we probably are here for. We are here for his motion to determine entitlement to attorney's fees and costs. And you tell me that you are requesting that I not go forward with that hearing and you want to continue it for what reason?

(emphasis added). It is difficult to read that portion of the excerpt and conclude that, many pages above that portion of the transcript, there was testimonial or documentary evidence presented on the issue of entitlement to fees. It defies logic that the parties would be clarifying to the judge what was to be heard that day if evidence of entitlement had been presented earlier in the proceedings that day. The discussion about the motion to continue the hearing was not in the context of Appellant seeking to present more evidence; instead, the discussion was in the context of postponing the hearing altogether. Thus, it defies logic that such a discussion would occur if evidence had already been presented. The combination of Judge Lynch's comments lead us to conclude that no evidence was presented earlier in the hearing on the motion to determine entitlement.

Accordingly, we remand this case to the trial court for the purpose of conducting an evidentiary hearing on the issue of Appellee's entitlement to fees and costs. Should the trial court determine that Appellee is the prevailing party and entitled to fees and costs, it may incorporate the calculations and findings from the March 31, 2017 hearing regarding the amount of fees and costs without the necessity of further evidence on that issue.

Reversed and Remanded.

Damoorgian and Conner, JJ., concur.

Forst, J., dissents with opinion.

Forst, J., dissenting.

I respectfully dissent. The parties appeared before Judge Lynch at a hearing on May 17, 2016. The hearing was scheduled to consider Appellee Omega's motion to determine entitlement to attorney's fees and costs, as well as two motions filed by Appellant Freeman. There is no indication in the transcript provided in the record submitted by the Seventeenth Circuit Clerk that the trial court addressed Appellee's motion during this hearing. However, the transcript submitted to the Court is an excerpted copy. Thus, on November 21, 2017, we ordered Appellant to submit "the full transcript (as opposed to 'excerpts') for the hearing held before Judge Lynch on May 17, 2016."

Notwithstanding the specificity of this request, Appellant once again submitted "an excerpt of the hearing proceeding." This is consistent with the contention of Appellee's counsel at the March 31, 2017 hearing before Judge Bidwill concerning the amount of fees and costs. At that hearing, Appellee's counsel argued that the transcript Appellant provided to Judge Lynch at a 2016 hearing regarding entitlement to fees was only a "partial transcript of the prior hearing, in which 60 pages of the transcript are cut out." Appellant agreed at the March 31, 2017 hearing that he had only ordered "excerpts from the Court Reporter."

In light of Appellant's failure to provide us with the full transcript of the May 17, 2016 hearing, I do not believe that we are able to contradict Appellee's claim at the March 31, 2017 hearing that, in 2016, Judge Lynch heard evidence regarding the issue of entitlement to fees. See Wofford v. Wofford , 20 So.3d 470, 473 (Fla 4th DCA 2009) ("A trial court's ruling is presumed correct, and where no transcript is provided, the appellate court cannot determine whether the evidence supports the trial court's rulings or the court misconceived the law."); see also Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory."). Accordingly, I would affirm the trial court's final judgment against Appellant.


source: Caselaw Access Project

author: Belanger, Robert E., Associate Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Barry Michael SCHULTZ, Appellee.
    No. 4D16-227
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   Belanger, Robert E., Associate Judge.

Appellant, the State of Florida, appeals the downward departure sentence imposed by the trial court below. Appellee, Barry Michael Schultz, cross appeals his convictions for trafficking in oxycodone. This Court has jurisdiction under Florida Rules of Appellate Procedure 9.140(b)(1)(A) and (c)(1)(N). For the reasons discussed, we affirm the conviction, but we reverse the departure sentence and remand for resentencing.

A jury found Schultz guilty of 55 counts of drug trafficking. Given the number of charges, the defendant scored 2549 sentencing points. The lowest permissible sentence under the criminal punishment code was 1890.75 months in prison, approximately 157.5 years. At sentencing, the State requested concurrent life sentences on each count, with concurrent 25 year mandatory minimum sentences. In contrast, the defense requested that Schultz be concurrently sentenced to the bottom of the guidelines as opposed to the life sentence sought by the State. The defense had no objection to the scoresheet and requested that his mandatory minimums run concurrently. The trial court then sentenced Schultz to the 25 year minimum mandatory sentence on each count to run concurrently. The State objected to the sentences arguing that there was no basis for a departure from the bottom of the guidelines. Nevertheless, the trial court proceeded with the sentence as imposed. Thereafter, the State gave notice of appeal.

On appeal, the State argues that, under State v. Murray , 161 So.3d 1287 (Fla. 4th DCA 2015), the trial court erred in sua sponte entering a downward departure sentence on Schultz's convictions. It argues that the trial court failed to articulate any basis for the departures and that no evidence was presented at the sentencing hearing to support a departure. The State further argues that the trial court failed to articulate in writing the basis for the downward departures pursuant to section 921.002(3), Florida Statutes ("Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.").

"Whether there is a valid legal ground for a downward departure is a question of law, to be reviewed de novo. " Wynkoop v. State, 14 So.3d 1166, 1171 (Fla. 4th DCA 2009) (citing State v. Walker , 923 So.2d 1262, 1264 (Fla. 1st DCA 2006) ). "A trial court's legal ground for a departure must be valid and supported by competent substantial evidence." Id. at 1171-72 (citing State v. Schillaci , 767 So.2d 598, 600 (Fla. 4th DCA 2000) ).

Murray is exactly on point. Murray held that "[d]epartures below the lowest permissible sentence established by the code must be articulated in writing by the trial court judge and made only when circumstances or factors reasonably justify the mitigation of the sentence." Id. at 1289-90 (citing § 921.002(1)(f), Fla. Stat. (2013) ; § 921.002(3), Fla. Stat. (2013) ("Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge.")). In Murray , this Court concluded that, in the absence of written or oral findings, a downward departure sentence was improper and remanded for resentencing within the guidelines. Id. at 1290. Based upon the holding in Murray , we determine that the trial court here erred in sua sponte entering a downward departure sentence on Schultz's convictions without articulating any basis for the departures. Notably, as in Murray , Schultz did not file a motion for downward departure, but merely requested a sentence at the bottom of the guidelines. Thus, no evidence was presented at the sentencing hearing to support a departure. Further, the trial court failed to articulate in writing the basis for the downward departures pursuant to section 921.002(3), Florida Statutes (2016) ("Any sentence imposed below the lowest permissible sentence must be explained in writing by the trial court judge."). Therefore, the trial court erred by not stating it was departing, not orally articulating reasons for doing so, and failing to enter a written order memorializing the reasons for departure. See Murray , 161 So.3d at 1290. As such, we reverse and remand the departure sentence for resentencing within the guidelines.

Schultz's arguments on cross appeal are without merit and require no further discussion.

Accordingly, we affirm Schultz's conviction, but we reverse the departure sentence and remand for resentencing within the guidelines.

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

Ciklin and Klingensmith, JJ., concur.


author: Gross, J.

text:
    Jennifer M. WOODWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2413
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Jennifer Woodward appeals a circuit court order finding her in both direct and indirect criminal contempt. We reverse the finding of indirect criminal contempt because the pertinent hearing transcript fails to disclose the conduct the judge identified as the basis of the contempt. We affirm the finding of direct criminal contempt.

The contempt proceedings in this case arose in a probate action involving the estate of Woodward's deceased aunt.

The March 2, 2016 Hearing

At a March 2, 2016 hearing on a motion for appointment of administrator ad litem, Woodward interrupted with commentary about the "ridiculous" nature of the proceeding. The petitioner's attorney complained about Woodward's comments from the "peanut gallery." The trial judge warned Woodward that any further outbursts when it was not her turn to speak would result in her removal from the courtroom.

After Woodward butted in again, the trial court gave her a "second and last" warning. He said that if she continued to speak out of turn, "then you're out of here. It's as simple as that."

Woodward continued to heckle the petitioner's attorney, stating that she "could have been to Disney World four times with my ninety-year-old dad," apparently a reference to the glacial pace of the probate proceeding. As she continued to talk over everyone, including the judge, the judge said "You are out.... You're out.... Get your face out of here."

On her way out of the courtroom, Woodward stated, "Fort Lauderdale came to my son and abducted my son out of my house in Oakland Park in 2013. I got bigger fish to fry." She added, "You can have the pictures and the real estate card and the Jesus stuff, because you need it." It is unclear what she meant by these observations. Woodward did not return to the courtroom for the remainder of the hearing.

After Woodward's exit, the petitioner's attorney discussed the necessity of an administrator for certain "property [that] is now vacant." Another attorney at the hearing also said "the house is supposed to be vacant." The trial court ultimately appointed an administrator ad litem for the limited purpose of listing the property for sale.

The March 17, 2016 Hearing

After the March 2 hearing, the petitioner's attorney learned that the property was not vacant, but that Woodward was residing there with her son. Petitioner's attorney moved for the initiation of contempt proceedings and the court held a hearing on the motion on March 17, 2016. He argued that Woodward lied to the court by representing that the house was vacant, when she was in fact residing there. Under questioning, Woodward admitted to residing at the property with her son. However, she denied that she lied to the court about the status of the house, reminding the court that she was asked to leave at the last hearing and did not get a chance to speak to the court. The trial judge instructed Woodward multiple times to answer the questions asked of her, and at one point warned her that if she was going to call people names, she would be held in immediate contempt of court.

The Show Cause Order

On March 21, 2016, the trial court entered an order directing Woodward to show cause why she should not be held in contempt or monetarily sanctioned for misrepresenting to the court on March 2, 2016 that "the subject residence was vacant when, in fact, [Woodward] and her son ... were inhabiting the residence without a Court Order."

The June 17, 2016 Show Cause Hearing and Contempt Order

The show cause hearing was conducted on June 17, 2016. A court reporter was not present for the proceeding. As a result, there are no transcripts of the hearing in the appellate record.

On June 17, the trial court entered an order adjudicating Woodward guilty of direct and indirect criminal contempt. As to the indirect criminal contempt, the order stated in pertinent part:

Woodward is also in indirect contempt of court and sentenced to 15 days in the Broward County Jail for misrepresenting to the Court on March 2, 2016 that the residence of the decedent was vacant when in fact she and her son Paul Woodward were inhabiting the residence without court order until at least March 17, 2016 and thereby impeding the ability of the administrator ad litem of the estate to sell the subject property.

The order also found Woodward in direct criminal contempt for "repeatedly" refusing to answer questions posed to her under oath after being directed to do so by the court, and other disruptive behavior.

The court ordered that the two 15-day jail sentences would run concurrently.

There Can Be No Indirect Criminal Contempt Because the Transcript of the March 2 Hearing Discloses No Misrepresentations About the Subject Property

The indirect criminal contempt finding for her misrepresentations at the March 2 hearing is subject to Florida Rule of Criminal Procedure 3.840. The contempt is "indirect" because whether Woodward and her son were actually living in the house in question did not occur in the presence of the court. Indirect contempt occurs

not in the presence of a court or of a judge acting judicially, but at a distance under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge.

Forbes v. State , 933 So.2d 706, 711 (Fla. 4th DCA 2006) (quoting Ex parte Earman , 85 Fla. 297, 95 So. 755, 760 (1923) ).

The transcript of the March 2 hearing reveals that Woodward made no representations concerning the occupancy of the property at issue. In fact, she was removed from the courtroom before there was any mention of occupancy of the house. We reverse that finding of contempt because there is no factual basis for it. On remand, the court shall discharge the order to show cause.

A Court Reporter is not Required to be Present at a Direct Criminal Contempt Proceeding

The second contempt finding challenged in this appeal is for direct criminal contempt, "where the misconduct occurred within the court's direct view and interfered with the court's ability to discharge its essential functions." Plank v. State , 190 So.3d 594, 601 (Fla. 2016).

Woodward's sole ground for reversal is that there was no transcript of the proceedings because the trial court failed to secure the presence of a court reporter. She argues for a rule of automatic reversal of a direct criminal contempt where there is no record of the proceedings.

In Martin v. State , 743 So.2d 591 (Fla. 4th DCA 1999), we rejected the notion that a court reporter was required in a case involving direct criminal contempt. We noted that direct criminal contempt operates under Florida Rule of Criminal Procedure 3.830, which provides that such contempt "may be punished summarily." Id. The unique aspect of direct criminal contempt is that it occurs within the presence of the court and justifies immediate action "to ensure the court's authority is vindicated and the court can conduct its necessary functions." Plank , 190 So.3d at 603. "[T]he court must be able to act swiftly to ensure it can fulfill its obligations and preserve the dignity of court proceedings." Id. at 604. Direct criminal contempt can arise in civil proceedings where, unlike a criminal proceeding, the onus is on the parties to provide a court reporter. The need to quickly reassert order in the courtroom justifies immediate action, instead of a delay, to ensure the existence of a record of the proceeding. Rule 3.830 accommodates the need for some judicial review of a direct criminal contempt by requiring a judgment of guilt to "include a recital of those facts on which the adjudication of guilt is based." We decline Woodward's invitation to revisit Martin . The finding of direct criminal contempt is affirmed.

Affirmed in part, reversed in part and remanded .

Forst and Kuntz, JJ., concur.


author: Forst, J.

text:
    Brian HARRINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1084
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Brian Harrington appeals from the trial court's final order revoking probation for his failure to complete a sexual offender treatment program, a condition of his probation. He argues that the trial court's finding of a willful and substantial violation of probation is not supported by competent, substantial evidence. Appellant also argues, and the State agrees, that the trial court failed to hold a required sentencing hearing following the finding of a violation of probation. As discussed below, we affirm the trial court's determination that there was a willful and substantial violation, but reverse and remand for a proper sentencing hearing.

Background

Pursuant to a guilty plea to three counts of sexual activity with a child, Appellant was sentenced to prison in 1998 to three concurrent sentences of ten years in prison. After serving eight years of the sentence, he was released and placed on probation. One of the conditions of Appellant's probation was that he complete a sexual offender treatment program.

In late 2013, the initial sexual offender treatment program to which Appellant was assigned was closed after six years. Appellant was transferred to the Comprehensive Outpatient Recovery, Treatment and Evaluation, Inc. (CORTE) program to attend treatment once a week in a group therapy setting led by Dr. Johnson. At the end of each month that Appellant was enrolled in CORTE, a progress report was prepared and sent to Appellant's probation officer detailing his participation, motivation, attitude, attendance, and any other relevant information. These progress reports allowed for four possible ratings: 1) Excellent, 2) Satisfactory, 3) Marginal or Borderline, and 4) Poor or Unacceptable.

The stated purpose of the group therapy was to create a safe environment in which the participants could share experiences, discuss and prevent triggers, and talk about what was happening in their lives. An expert in sexual offender treatment, testifying as a defense witness, described this group therapy as an "ebb and flow" process, stating patients would have good and bad days and that what was most crucial for success was to get them to "engage" and "buy in" to the program.

Appellant's initial reluctance to fully participate at group therapy sessions in CORTE earned him "marginal" or "poor" ratings in attitude and motivation during his first three months in this program; however, he subsequently was deemed to have improved his behavior and he received higher, "satisfactory" ratings. Dr. Johnson acknowledged in her testimony that group therapy patients normally experience a difficult initial adjustment period, requiring time to become comfortable and non-hostile and to trust the therapy and therapist.

By his sixth month in CORTE, Appellant was receiving "satisfactory" appraisals in all respects, which he successfully maintained for six consecutive months, and Dr. Johnson's reports suggest Appellant's successful participation in therapy during that timeframe, with improved behavior and apparent "buy in" to the therapeutic program. The reports further noted that Appellant was "increasingly receptive" to group therapy, contributing in "increasingly productive" ways, and was "meaningfully engaged." These contemporaneous comments and ratings notwithstanding, Dr. Johnson testified that there was hesitation in giving Appellant these ratings and that "he was superficially engaged since his enrollment" in CORTE, had a negative attitude during meetings, was both challenging and resistant, and had failed to actively participate on numerous occasions. Dr. Johnson was also critical of Appellant's failure to disclose a relationship he was engaged in with another group member.

During Appellant's final six weeks in CORTE, his participation and attitude toward treatment and the group regressed, and he reverted to behavior similar to when he began the CORTE program. Dr. Johnson and Appellant's expert witnesses provided testimony linking this regression to a situation involving the death of Appellant's father and what the defense experts perceived as Dr. Johnson's mishandling of the situation. Dr. Johnson conceded that this situation was a "clinically significant event" for Appellant.

Appellant was ultimately discharged from the CORTE group. Dr. Johnson did not refer him to another group or offer additional counselling to him. Dr. Johnson's discharge summary stated Appellant was terminated from the program for two principal reasons: willful treatment resistance and ongoing disruption of the treatment process for other members.

Despite his discharge, Appellant nevertheless continued to attend the group meetings for two or three more weeks. However, as a consequence of his discharge from the treatment group, the State asserted that he had violated his probation for failing to complete all recommended treatment. The trial court agreed, relying upon Dr. Johnson's testimony and conclusions, in finding Appellant willfully and substantially violated his probation by "consistently resisting treatment, failing to successfully complete treatment, and being discharged from sexual offender treatment." Without holding a second hearing focused on the appropriate sentence in the wake of the violation, the trial court sentenced Appellant to nearly forty-two years in prison for this violation of probation.

Analysis

A. Violation of Probation

"The trial court has broad discretion to determine whether there has been a willful and substantial violation of a term of probation and whether such a violation has been demonstrated by the greater weight of the evidence." State v. Carter , 835 So.2d 259, 262 (Fla. 2002) ; see also Mata v. State , 31 So.3d 257, 259 (Fla. 4th DCA 2010) (the State must prove by a preponderance of the evidence the probationer willfully and substantially violated the terms of probation).

" 'When a decision in a non-jury trial is based on findings of fact from disputed evidence, it is reviewed on appeal for competent, substantial evidence' because 'the trial judge is in the best position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.' " Oertel v. State , 82 So.3d 152, 156-57 (Fla. 4th DCA 2012) (quoting Acoustic Innovations, Inc. v. Schafer , 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) ).

If a revocation is based on failure to complete a rehabilitation program, there must be a showing that the probationer was responsible for such failure. See Rainer v. State , 657 So.2d 1230, 1230 (Fla. 4th DCA 1995). As such, "reasonable efforts to comply with a condition of probation cannot be deemed a willful violation."

Odom v. State , 15 So.3d 672, 675 (Fla. 1st DCA 2009) ; see also Thomas v. State , 672 So.2d 587, 589 (Fla. 4th DCA 1996) ("If a probationer makes reasonable efforts to comply, his failure will not be considered willful.").

Following his placement on probation, Appellant was successful in a program for over six years prior to the transfer to the CORTE program. However, by Dr. Johnson's account, Appellant "was superficially engaged since his enrollment" in CORTE, did not fully dedicate himself to the program, and his failure was willful and not the product of circumstances beyond his control. Supporting that conclusion was testimony that Appellant had a negative attitude during meetings, was both challenging and resistant, and had failed to actively participate on numerous occasions. In his final progress report, Appellant received a "poor" rating in participation, a "borderline" score in motivation, and an "unacceptable" rating in attitude. His group leader, Dr. Johnson, described Appellant as "more argumentative, more hostile, increasingly disruptive ... not receptive to any of the feedback regardless of who was providing it or the format that it was provided in." As noted above, Dr. Johnson's discharge summary stated Appellant was terminated from the program for two principal reasons: willful treatment resistance and ongoing disruption of the treatment process for other members.

Although there was a great deal of testimony from Appellant's expert witnesses that questioned the treatment and observations of Dr. Johnson, she was the sole witness who directly observed Appellant during his one-year treatment in CORTE and the trial court afforded substantial reliance to her observations and conclusions in determining there was a willful violation of the terms of Appellant's probation. Hence, under our standard of review, we affirm the trial court's holding that Appellant violated probation. See Savage v. State , 120 So.3d 619, 622 (Fla. 2d DCA 2013) ("The competent substantial evidence standard defers to the trial court's judgment because the trial court is in the best position 'to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.' " (quoting In re Estate of Sterile , 902 So.2d 915, 922 (Fla. 2d DCA 2005) ) ).

B. Revocation of Probation

In the same "Order finding Violation of Probation," the trial court, "[b]ased on the willful and substantial violation, and the nature and severity of the underlying charged crimes," revoked Appellant's probation and sentenced him to nearly forty-two years in prison (with credit for time served). It did so without holding a separate sentencing hearing.

We review a trial court's decision to revoke probation for an abuse of discretion. Grace v. State , 198 So.3d 945, 947 (Fla. 4th DCA 2016) ; M.A.L. v. State , 110 So.3d 493, 498 (Fla. 4th DCA 2013). "If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980). Trial courts are granted "broad discretionary power" to both "grant the privilege of probation" and to revoke it. Lawson v. State , 969 So.2d 222, 229 (Fla. 2007). "Although the power of the trial court in the area of probation revocation is broad and extensive, it 'is not unbridled and should not be arbitrarily exercised.' " Id. (quoting State ex rel. Roberts v. Cochran , 140 So.2d 597, 599 (Fla. 1962) ).

Upon finding a violation of probation, the court must decide whether to revoke, modify, or continue the probation.

See § 948.06(2)(e), Fla. Stat. (2016). The Second District Court of Appeal characterizes this as "Step Two " of the process. Savage , 120 So.3d at 623. If the trial court chooses revocation, it may "impose any sentence it might have originally imposed before placing the probationer or offender on probation or into community control." § 948.06(2)(e). As discussed in Estevez v. State , 705 So.2d 972 (Fla. 3d DCA 1998), the consideration of and determination as to whether to revoke probation is a process separate from a violation hearing:

In Black v. Romano , 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985), the Supreme Court stated:
In identifying the procedural requirements of due process, we have observed that the decision to revoke probation typically involves two distinct components:
(1) a retrospective factual question whether the probationer has violated a condition of probation; and
(2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation.
Id. at 611 (citations omitted).
The Court went on to say that "the final revocation of probation must be preceded by a hearing," id. , at which the defendant must have, among other things, "an opportunity to be heard in person...." Id. at 612, 105 S.Ct. 2254. This means that the defendant must have an opportunity to be heard on both issues: (1) whether defendant has violated a condition of probation, and (2) what sentence should be imposed. This hearing may be informal in nature, but there must be a reasonable opportunity to be heard. See id. at 614, 105 S.Ct. 2254 (where the court has sentencing discretion, probationer must have an opportunity to present mitigating evidence and argue for sentencing alternatives); Scull v. State , 569 So.2d 1251, 1252 (Fla. 1990) ; McCloud v. State , 653 So.2d 453, 455 (Fla. 3d DCA 1995) ; ABA Standards for Criminal Justice, Standard 18-7.5(d)(iii), (e)(iv).

Estevez , 705 So.2d at 973 (alterations in original) (citations omitted).

In the instant case, Appellant was afforded a hearing as to whether he violated a condition of probation. As the State concedes, he was not afforded a hearing as to what sentence should be imposed. On remand, following a secondary hearing as discussed in Black and Estevez , the trial court is to first determine whether to revoke, modify or continue Appellant's probation. If the court chooses the revocation option, it must then determine the appropriate sentence, and set forth the reasons for revoking probation in a written order. Defrank v. State , 886 So.2d 253, 253-54 (Fla. 4th DCA 2004) (citing Black , 471 U.S. at 612, 105 S.Ct. 2254 ).

Conclusion

Although there was mixed evidence as to both the willfulness and the extent (substantial or less-than-substantial) of Appellant's failure/inability to remain in the CORTE program (a condition of Appellant's probation), "the evidence relied upon to sustain the ultimate finding [was] sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." De Groot v. Sheffield , 95 So.2d 912, 916 (Fla. 1957). Accordingly, we affirm the trial court's judgment finding Appellant in violation of his probation.

We remand to the trial court for a hearing on whether revocation, modification or continuation of Appellant's probation is the appropriate course of action and, if either revocation or modification is selected, the contours of any sentence imposed. While we take no position on what the trial court's ultimate decision should be, it should afford due consideration of Appellant's record during his earlier prison sentence and in his first six years on probation, along with the mixed record during his time in the CORTE program, including any issues that may have contributed to Appellant's unsatisfactory conduct immediately preceding the termination of his group therapy enrollment.

Affirmed in part and Reversed and Remanded in part.

Conner and Klingensmith, JJ., concur.

      In his initial brief, Appellant requests a different judge for the revocation hearing. The initial trial judge retired subsequent to this judgment. Therefore, the issue is moot.


author: Per Curiam.

text:
    James LEVELL, III, Appellant, v. William D. SNYDER, Sheriff of Martin County, Appellee.
    No. 4D17-2736
    District Court of Appeal of Florida, Fourth District.
    [February 14, 2018]
    James Levell, III, Stuart, pro se.
    Brittany Brooks of Martin County Sheriff's Office, Stuart, for appellee.
   Per Curiam.

Affirmed without prejudice to Appellant filing a timely Rule 1.540 Motion for Relief from Judgment.

Affirmed.

Warner, May and Damoorgian, JJ., concur.


author: Klingensmith, J.

text:
    Antonnine SCOTSMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2729
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant, Antonnine Scotsman, appeals his convictions and sentences for three counts of armed robbery and one count of aggravated assault. He claims detectives violated his Miranda rights by continuing to engage with him after he invoked his right to counsel, which led to a confession that was used against him at trial. We agree and reverse.

Almost two weeks after appellant was taken into custody for an unrelated offense, the investigating detective visited appellant at the housing facility to ask if he had any information about an armed robbery. Appellant was not a suspect at the time. One week later, appellant and other individuals were transferred to the Broward County Sheriff's Office for questioning as possible suspects in the crime. When they arrived, they were placed in separate interrogation rooms.

Videotapes and voice recordings from the interrogation rooms allow us to understand what occurred there. The lead detective, along with a second detective, entered the interrogation room, and initiated a conversation explaining the need to go over the Miranda waiver form again before continuing to speak with appellant. The lead detective started by asking appellant for his name. When the detective was unable to understand his response, appellant asked, "[T]hey sending me a lawyer?" The detective then explained, if "you want to at any time like I told you before, you can say let's stop right now." The detective further clarified, "You don't want to do it this time? This is very important, man." The detective said he could not force appellant to talk, but showed appellant pictures of the other suspects and said, "They're talking. First one talks, deals."

Before leaving the interrogation room, the second detective asked appellant if he knew how much time he was facing, and both detectives commented on appellant's young age. When appellant asked what he was facing, the lead detective told him, "Good luck to you man. These guys already talk. All right. So don't say I didn't give you a chance." Appellant asked for a second time what he was facing, at which time the lead detective pointed to a picture of one of the other suspects and said:

I'm going to tell you [what I] was telling you about, it was him [calling you], you know how I know? He already told me. Okay? All right?
No more breaks after this. The gloves come off. After we leave here, today it's a done deal. I'm not going to be friendly anymore. Because he told me-

After appellant attempted to respond, the lead detective said, "Man, you got some explaining to do," and told appellant he was going to be "charged with armed robbery with a firearm.... You might not be coming home anytime soon." Appellant was then given a cellphone and left alone in the room to call his grandmother. He talked with her for approximately fourteen minutes before the lead detective abruptly re-entered the interrogation room and took the phone, leaving the room once again. Appellant was left alone in the interrogation room for about forty minutes until another officer came in. At that point, appellant asked to use the bathroom, and complained about the temperature in the interrogation room. After the officer departed, appellant was left alone in the room once more.

An hour later, appellant repeatedly knocked on the door, and appeared visibly in need of the bathroom. Appellant attempted to get the attention of an officer for two minutes before urinating in the corner of the interrogation room. An officer responded to appellant's knocking a short time later, and told him that they would clean it up. After this, appellant was, again, left alone in the interrogation room.

Two hours later an officer checked on appellant and told him they were "almost done." Appellant was left alone in the room once again. Another hour passed before an officer opened the door to the interrogation room and asked appellant if he needed to use the bathroom before departing. Thirty minutes later, the lead detective re-entered the room and told appellant they would feed him before taking him back to jail. As he escorted appellant from the interrogation room, the detective said, "I know you asked for your attorney; I'm not going to talk to you, but I'm going to let you know that you are being charged with armed robbery."

Appellant was then escorted to another room where he sat with one of the other suspects for approximately thirty minutes. After appellant was given food, he asked who was being charged with armed robbery. The detective asked appellant several times, "You want to talk to me?" before appellant finally responded by nodding his head.

After leaving the interrogation room to use the phone, the lead detective returned and led the other suspect out. When they were alone, the lead detective then stated, "All right, real quick, when I was speaking to you a moment ago you said you want to talk to me." He once again informed appellant that before they could talk he would have to go over the Miranda form again. After the detective explained the Miranda form to appellant, the following exchange took place:

DETECTIVE: All right. Number eight. This is very important. When we first approached you hours ago talking, you said no. You weren't going to talk to me. On your own free accord, now you are saying you are going to talk to me, right?
APPELLANT: Yes.
DETECTIVE: Okay, (inaudible). Have you previously requested any law enforcement officer allow you to speak with your attorney?
APPELLANT: Yeah.
DETECTIVE: You have. But you still want to make a statement with me, right?
APPELLANT: Okay.

Appellant was then taken out of the interrogation room to speak with the second detective, to whom he admitted that he drove his car along with the other suspects, and helped them commit the robbery. In all, appellant was at the station for more than eight hours when he finally confessed his involvement in the crime to the second detective.

The State charged appellant with three counts of armed robbery with a firearm and mask while in actual possession of a firearm and one count of aggravated assault with a firearm while in actual possession of a firearm. Prior to trial, defense counsel argued appellant's confession should be suppressed because appellant invoked his Miranda rights and law enforcement engaged in a series of improper tactics to get appellant to confess. The trial court denied the motion to suppress, and an audio recording of appellant's confession was entered into evidence and played for the jury. The jury returned a verdict of guilty on all counts. This appeal followed.

"A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." Jackson v. State , 18 So.3d 1016, 1027-28 (Fla. 2009). Generally, appellate courts should give deference to the trial court's findings of fact if the findings are supported by competent and substantial evidence. See Pierre v. State , 22 So.3d 759, 765 (Fla. 4th DCA 2009). However, when the findings are based on evidence other than live testimony and the evidence is available to the appellate court in the same form that was available to the trial court, the appellate court will review the trial court's application of the law to the facts de novo, independently reviewing mixed questions of law and fact that ultimately determine constitutional issues. See id. (relying on the Florida Supreme Court's exception to the complete deference standard when findings are based on evidence other than live testimony in Parker v. State , 873 So.2d 270, 279 (Fla. 2004) ).

The Fifth Amendment to the United States Constitution and Article I, section 9 of the Florida Constitution provide that persons shall not be compelled to be witnesses against themselves in any criminal matter. "[A]n individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.... [T]his warning is an absolute prerequisite to interrogation." Miranda v. Arizona , 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If the suspect requests a lawyer, then interrogation must not commence, and if any such interrogation has already begun, then it must immediately stop until a lawyer is present. See Traylor v. State , 596 So.2d 957, 966 (Fla. 1992).

Whether an interrogation must stop often depends on whether the suspect has made an "unequivocal" request for counsel. See Moss v. State , 60 So.3d 540, 543 (Fla. 4th DCA 2011) (holding that "I want a lawyer" and "I want to talk to a lawyer" were unequivocal requests); Black v. State , 59 So.3d 340, 345 (Fla. 4th DCA 2011) (holding that the defendant's response of "no" when asked "are you willing to answer my questions without an attorney?" was an unequivocal request).

Here, the State concedes that appellant initially made an unequivocal request for counsel at the start of his interrogation, but contends that he later changed his mind, and agreed to voluntarily speak with the detectives. However, the law is clear that once a suspect makes an unequivocal request for counsel, the police must scrupulously honor that request, and immediately cease the interrogation. See Cuervo v. State , 967 So.2d 155, 164 (Fla. 2007).

In Cuervo , after the defendant invoked his right to remain silent, the police told him that he still had the opportunity to tell "his side of the story." Id. The Florida Supreme Court held, "These remarks undermined the warning to [the defendant] that anything he said could be used against him in a court of law." Id. at 165. Furthermore, the officer's failure to scrupulously honor the defendant's decision to remain silent and persistent questioning nudged the defendant into waiving his Miranda rights. Id. Ultimately, the court concluded the trial court's failure to suppress the defendant's confession was not harmless and there was a reasonable possibility that the error affected the verdict. Id. at 167.

Given appellant's clear invocation of his right to counsel, the detective's follow-up comments and statements effectively wore down appellant's resistance and made him change his mind. See Black , 59 So.3d at 346. In Black , after the defendant invoked his right to counsel, the detective continued to ask him whether he wanted to talk to them about the crimes. Id. This court concluded that any of the "statements that resulted from the failure to respect [the defendant]'s right to counsel are-by definition-in violation of Miranda ." Id.

Once a suspect invokes his or her right to speak to counsel, any responses resulting from further police questioning can be admissible "if the accused initiates further conversation, is reminded of his rights, and knowingly and voluntarily waives those rights...." Welch v. State , 992 So.2d 206, 214 (Fla. 2008). However, this applies only if the police scrupulously honor the suspect's request for counsel and immediately cease the interrogation prior to the suspect voluntarily re-engaging with them. See State v. Brown , 592 So.2d 308, 309 (Fla. 3d DCA 1991).

In Brown , the court held that the defendant's confession was not freely and voluntarily given, even though the defendant reinitiated conversation. Id. at 308-309. When the defendant unequivocally invoked his right to counsel, the officer continued to discuss the evidence they had against the defendant in his presence. Id. The officer ended the interrogation, and left the defendant alone for approximately an hour and a half. Id. When the defendant was later removed from the interrogation room for booking, he told the officer he wanted to tell "his side of the story." Id. at 308. The trial court concluded that, regardless of the lapse of time between the officer's statements and the defendant's waiver, this did not render the defendant's confession as freely and voluntarily made. Id. The officer's statements to defendant after he invoked his rights were both "protracted and evocative," and were likely to prompt incriminating responses. Id. at 308-09.

Similarly, though several hours passed between appellant's request for a lawyer and his apparent change of mind, the reinitiated communication with the detective was a delayed product of the coercive tactics employed following the detective's failure to scrupulously honor appellant's request for counsel. The record does not reflect that appellant ever asked to speak with the detective of his own volition. The detective continued to engage with appellant after he invoked his Miranda rights at the start of the interrogation when he told appellant about the evidence against him and continued to question him. Later, the detective asked appellant several times if he wanted to talk, abruptly left the interrogation room to answer a call, and subsequently engaged in dialogue with appellant when he returned.

From this record, there is no indication that appellant actively or voluntarily sought to re-engage in a conversation with the detective. Admitting the statements obtained from appellant under these circumstances constituted harmful error and requires a new trial. See Calder v. State , 133 So.3d 1025, 1032 (Fla. 4th DCA 2014). Because we remand this case for a new trial, it is unnecessary to address the other issues raised on appeal.

Reversed and remanded.

Gross and May, JJ., concur.


text:
    Daniel Edward PANARO, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-1179 4D16-1180
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

We conditionally affirm appellant's sentences for dealing in stolen property and giving false information to a pawnbroker, imposed after a jury trial. See Alfonso-Roche v. State , 199 So.3d 941, 945 (Fla. 4th DCA 2016).

As the state concedes, there is a problem surrounding the issue of appellant's competency.

In this case, defense counsel moved to appoint an expert to examine appellant for his competency to proceed. The trial court ordered a mental examination of appellant. It is unclear from the record as to whether the trial court made an independent determination of appellant's competency. According to appellant's initial brief, defense counsel informed the trial court that appellant was found competent following an evaluation, and the progress notes state, "Court minute: defendant present with attorney; attorney given court date in open court, competency evaluation completed-found competent per defense attorney, docket sounding 11/17/15 at 2 p.m." Thus, it appears that defense counsel may have stipulated to appellant's competency based on the court-ordered evaluation.

Such a stipulation does not "absolve[ ] the trial court from making an independent determination regarding a defendant's competency to stand trial."

Dougherty v. State , 149 So.3d 672, 678 (Fla. 2014). "A trial court has the duty to make an independent determination of a criminal defendant's competency to proceed." Charles v. State , 223 So.3d 318, 329 (Fla. 4th DCA 2017). "A defendant cannot stipulate to the ultimate issue of competency, because '[a]ccepting a stipulation improperly absolves the trial court from making an independent determination regarding a defendant's competency to stand trial.' " Id. at 329 (quoting Dougherty , 149 So.3d at 678 ). "Although the trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant's competency, and must enter a written order if the defendant is found competent to proceed." Dougherty , 149 So.3d at 679 ; see also Fla. R. Crim. P. 3.212(b) ("The court shall first consider the issue of the defendant's competence to proceed. If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.").

This is not a case where the record contains the trial court's oral ruling determining competency. See Holland v. State , 185 So.3d 636, 637 (Fla. 2d DCA 2016) (case remanded because there was no written order memorializing the trial court's oral determination of defendant's competency, as required by law, with directions for the trial court to enter a nunc pro tunc order finding defendant competent).

"Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for the defendant to receive a new trial, if deemed competent to proceed on remand." Dougherty , 149 So.3d at 678-79. "A new trial is not always necessary where the issue of competency was inadequately determined prior to trial; a retroactive determination of competency is possible." Id. at 679.

"[W]here the issue of competency was inadequately determined below, a retroactive determination of competency may be possible where there are enough expert and lay witnesses who examined or observed the defendant contemporaneous with the relevant stage of the proceeding and are available to offer pertinent evidence at a retrospective hearing." Presley v. State , 199 So.3d 1014, 1019 (Fla. 4th DCA 2016) (citing Dougherty , 149 So.3d at 679 ). "Thus, on remand, if the court is able to make a nunc pro tunc finding as to the [defendant]'s competency in a manner which comports with due process considerations, then it should do so and enter a written order accordingly." A.L.Y. v. State , 212 So.3d 399, 404 (Fla. 4th DCA 2017). "On the other hand, if the court should find, for any reason, that an evaluation of the [defendant]'s competency at the time of the [trial] cannot be conducted in such a manner as to assure the [defendant] due process of law, then the court should hold a new [trial] upon the court determining that the [defendant] is competent to proceed." Id.

Therefore, consistent with Dougherty and our precedent, we reverse and remand for a nunc pro tunc competency determination. If, however, the trial court cannot determine appellant's competency at the time of trial consistent with due process guarantees, the trial court should vacate appellant's judgment and sentence and hold a new trial if appellant is deemed competent to proceed on remand.

Reversed and remanded .

Forst and Kuntz, JJ., concur.


text:
    Jefro T. PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4006
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Tirado v. State, 219 So.3d 146, 148 (Fla. 4th DCA 2017) (the "trial court did not err in giving the standard jury instruction that 'union means contact.' "), review denied, SC17-1263, 2017 WL 4404116 (Fla. Oct. 4, 2017).

Gerber, C.J., Gross and Kuntz, JJ., concur.


text:
    Jean C. NOEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-4247
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

The Supreme Court held that Jean Claude Noel was "entitled to a resentencing." Noel v. State , 191 So.3d 370, 380 (Fla. 2016). On remand to this court, we sent the case to the circuit court for resentencing. Noel v. State , 192 So.3d 90, 91 (Fla. 4th DCA 2016).

Back in the circuit court, a public defender was appointed to represent Noel. The newly appointed counsel noticed a status hearing for November 2, 2016, before the circuit court.

At the status hearing, Noel was resentenced by the court. Defense counsel adequately preserved an objection to sentencing at a status conference not noticed as a sentencing hearing.

A defendant has "the right to notice of the sentencing hearing and notice that any new sentence is appealable." Stang v. State , 24 So.3d 566, 570 (Fla. 2d DCA 2009) ; see also Frison v. State , 76 So.3d 1103, 1104 (Fla. 5th DCA 2011). "A defendant must receive notice before the sentencing hearing, so that defense counsel can prepare any challenges to the evidence the state plans to offer in support." Brown v. State , 189 So.3d 837, 840 (Fla. 4th DCA 2015). An essential part of due process is that "any relief granted at a hearing be within the kind of relief sought by the notice given for hearing." Khan v. Dep't of Revenue , 901 So.2d 992, 993 (Fla. 4th DCA 2005).

The November 2, 2016 hearing was noticed as a status check, not a sentencing.

We reverse the sentence and remand to the circuit court for de novo resentencing at a noticed sentencing hearing. See State v. Fleming , 61 So.3d 399, 406 (Fla. 2011).

Reversed and remanded .

Forst and Kuntz, JJ., concur.


text:
    Peter J. PHILLIPS, Jr. and Kimberly J. Phillips a/k/a Kimberly Phillips, Appellants, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee FOR FIRST HORIZON ALTERNATIVE MORTGAGE SECURITIES TRUST, 2005-FA9 and Countrywood Homeowners Association, Inc., Appellees.
    No. 4D17-1582
    District Court of Appeal of Florida, Fourth District.
    [February 28, 2018]
    Brian Korte of Korte & Wortman, P.A., West Palm Beach, for appellants.
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West Palm Beach, for appellee The Bank of New York Mellon.
   Per Curiam.

Affirmed. See HSBC Bank USA, Nat'l Ass'n v. Sanchez , No. 4D17-1085, --- So.3d ----, 2018 WL 1109654 (Fla. 4th DCA Feb. 28, 2018) ; PHH Mortg. Corp. v. Parish , No. 2D17-561, --- So.3d ----, 2018 WL 560538 (Fla. 2d DCA Jan. 26, 2018).

Gerber, C.J., Gross and Kuntz, JJ., concur.


text:
    Luis Miguel PEREZ, Appellant, v. FLORIDA DEPARTMENT OF REVENUE o/b/o Alyssa Renee Rivera, Appellee.
    No. 4D17-3282
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Luis Miguel Perez, Boynton Beach, pro se.
    No appearance for appellee.
   Per Curiam.

Affirmed. See Fla.R.App.P. 9.315(a).

May, Ciklin and Kuntz, JJ., concur.


text:
    Laura TWOMEY, an individual, Appellant, v. BOCA PARK CONDOMINIUM ASSOCIATION, INC., a Florida Profit Corporation, and FHPM, Inc., a Florida Profit Corporation, Appellees.
    No. 4D17-1128
    District Court of Appeal of Florida, Fourth District.
    [February 21, 2018]
    Matthew B. Wasserman, David I. Shiner and Stratton A. Smiley of Shiner Law Group, P.A., Boca Raton, for appellant.
    Joan Carlos Wizel, Eric L. McAliley and Sandra Ferrin of Lydecker | Diaz, Miami, for appellees.
   Per Curiam.

Affirmed. See Wolf v. Sam's East, Inc. , 132 So.3d 305 (Fla. 4th DCA 2014).

Taylor, May and Damoorgian, JJ., concur.


author: May, J. Forst, J., dissenting.

text:
    Saad ALBASSAM, Appellant, v. Afnaan Faize Yousef KLOB, Appellee.
    No. 4D17-1403
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Jonny Kousa of The Law Offices of Jonny Kousa, P.L., Coconut Creek, and Michael R. Bass of Michael R. Bass, P.A., Fort Lauderdale, for appellant.
    No appearance for appellee.
   May, J.

In this appeal from an order denying a rule 1.540 motion, the former husband argues that his 2014 dissolution of marriage judgment should be vacated because the former wife's 2000 Jordanian divorce from her first husband was invalid. We affirm the order. The former husband cannot now equitably reach back and litigate the validity of the foreign divorce entered seventeen years ago.

The former wife has been married three times. In 2000, a Jordanian court issued a divorce decree in her first marriage. She remarried and divorced a second husband. She then married the former husband in 2011.

In his 1.540 motion, the former husband argued that the Jordanian divorce from the first husband over a decade earlier was not valid under Florida law because neither party lived in Jordan when the decree was entered. He suggests the trial court lacked subject matter jurisdiction to dissolve his marriage. The trial court denied the motion after a hearing.

We review the trial court's order for an abuse of discretion. Cunha v. Cunha , 92 So.3d 918, 919 (Fla. 4th DCA 2012).

The marriage that was dissolved by the judgment at issue is presumed to be legal and valid. Cobo v. Sierralta , 13 So.3d 493, 497 (Fla. 3d DCA 2009) (citing Stewart v. Hampton , 506 So.2d 70, 71 (Fla. 5th DCA 1987), and Grace v. Grace , 162 So.2d 314, 317 (Fla. 1st DCA 1964) ). This presumption has been recognized as "one of the strongest presumptions known to the law." Teel v. Nolen Brown Motors, Inc. , 93 So.2d 874, 876 (Fla. 1957). "The presumption of a marriage's existence grows out of long and continuous cohabitation, the establishment and maintenance of a home and family, and recognition by the public generally and their friends and associates that the man and woman are husband and wife." Lambertini v. Lambertini , 655 So.2d 142, 143 (Fla. 3d DCA 1995) (citation omitted).

Here, the former husband married and cohabited with the former wife for more than a year and a half before separating and filing for divorce. The former husband did not raise bigamy as a defense or seek to annul the marriage. In fact, he petitioned for the dissolution in Florida in September 2012, having known of the wife's Jordanian divorce entered more than 15 years ago. He did not question the legitimacy of the wife's prior Jordanian divorce throughout his marriage to her and for nearly two years after this divorce had become final.

At the hearing, the former wife's counsel explained that, pursuant to the dissolution, she had sold real property and paid off marital debts. The trial court had been the same court to issue the dissolution in 2014, and noted that it had equally divided the liabilities.

The former husband presented no excuse for his delay in raising the alleged invalidity of the Jordanian divorce. In fact, his attorney also represented his sister in selling real property as a result of the Florida dissolution judgment. He challenged the validity of the Jordanian divorce on technical legal grounds; i.e., that neither party lived in Jordan when the decree was entered.

The trial judge determined it would be inequitable to allow the former husband to attack the validity of the Jordanian divorce, relying on Keller v. Keller , 521 So.2d 273, 274-76 (Fla. 5th DCA 1988). Citing to the Restatement (Second) of Conflict of Laws § 74 (1971), Keller recognized that "[a] person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so." 521 So.2d at 274.

The rule may be applied whenever, under all the circumstances, it would be inequitable to permit a particular person to challenge the validity of a divorce decree. Such inequity may exist when action has been taken in reliance on the divorce or expectations are based on it or when the attack on the divorce is inconsistent with the earlier conduct of the attacking party.

Id. (quoting Restatement (Second) of Conflict of Laws § 74 cmt. b (1971) ).

The trial court did not abuse its discretion in concluding that it would be inequitable to allow the former husband to attack the validity of the 2000 Jordanian divorce decree in 2015 after having relied on it to marry and dissolve his 2011 marriage to the former wife.

Affirmed.

Taylor, J., concurs.

Forst, J., dissents with opinion.

Forst, J., dissenting.

I respectfully dissent with respect to the majority's opinion. As set forth below, Appellant Saad Albassam's Florida Rule of Civil Procedure 1.540(b)(4) motion to vacate a final judgment of dissolution of marriage demonstrates a colorable entitlement to relief. Thus, the appropriate course of action, in my opinion, would be to remand this matter for an evidentiary hearing.

Background

Klob was initially married to Yazan Mohammed Alkhadra. In 2000, a court in Jordan issued a divorce decree, applying Sharia law. The decree stated a divorce date nearly two years earlier, likely to enable Klob's intervening marriage to her second husband, which in turn ended in divorce prior to Klob's 2011 marriage to Appellant.

In his challenge to the 2014 final dissolution of his marriage to Klob, Appellant argued below that Klob's Jordanian divorce from Alkhadra over a decade earlier was not valid under Florida law because neither Klob nor Alkhadra lived in Jordan when that first divorce decree was entered. As a result, Appellant claimed, the trial court lacked subject matter jurisdiction to enter the judgment dissolving his marriage to Klob. The trial court denied this motion without holding an evidentiary hearing.

Analysis

The standard of review on a ruling on a motion for relief from judgment is whether there has been an abuse of the trial court's discretion. Foche Mortg., LLC v. CitiMortgage, Inc. , 163 So.3d 525, 526 (Fla. 3d DCA 2015).

A. Appellant was entitled to an evidentiary hearing on his Rule 1.540(b) motion for relief

A final judgment entered by a court that lacks subject matter jurisdiction is void and subject to collateral attack at any time under Rule 1.540(b)(4). Tannenbaum v. Shea , 133 So.3d 1056, 1060 (Fla. 4th DCA 2014) ; Miller v. Preefer , 1 So.3d 1278, 1282 (Fla. 4th DCA 2009) ; Strommen v. Strommen , 927 So.2d 176, 179 (Fla. 2d DCA 2006). When a marriage is invalid, a court lacks subject matter jurisdiction to issue a divorce decree. In McGhee v. Biggs , 974 So.2d 524 (Fla. 4th DCA 2008), we held that "[a] judgment entered by a court which lacks subject matter jurisdiction is void and subject to collateral attack under rule 1.540 at any time." Id. at 526.

Appellant maintains that, since both Klob and her first husband were living in the United States and had no residential ties to Jordan at the time of their divorce, the Jordanian divorce decree should not be recognized under Florida law. "Florida courts will not recognize a foreign nation's divorce decree unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the decree was rendered."

In re Estate of Schorr , 409 So.2d 487, 489 (Fla. 4th DCA 1981) ; see also Popper v. Popper , 595 So.2d 100, 103 (Fla. 5th DCA 1992).

Thus, Appellant argues, since Klob's first marriage was not legally terminated before she married him, they did not have a valid marriage and the trial court lacked subject matter jurisdiction to enter the divorce judgment.

The law of Florida is that a marriage is not valid if one of the parties has a legal spouse at the time of the marriage....
Logically, it would not seem to matter why a previous marriage was still intact-whether the parties' attempted divorce was invalid or whether the parties never attempted a divorce at all. In either event, one continues to have a living and undivorced spouse which prevents such person from entering a new, valid marriage.

Lopes v. Lopes , 852 So.2d 402, 403 (Fla. 5th DCA 2003) (citations omitted); see also Oliver v. Stufflebeam , 155 So.3d 395, 397 (Fla. 3d DCA 2014) ("Where there is no valid marriage there can be no divorce."); Barnett v. Barnett , 787 So.2d 946, 946-47 (Fla. 2d DCA 2001) (concluding that a divorce judgment should have been vacated as void under Rule 1.540 because the parties had already been divorced in Tennessee; the court did not have jurisdiction because there was no longer a valid marriage); Groover v. Groover , 383 So.2d 280, 283 (Fla. 5th DCA 1980) (holding that where there was no valid marriage because the wife never divorced her first husband, "the court never acquired jurisdiction over the subject matter and its final judgment of divorce [was] void").

In denying Appellant's attempt to challenge the validity of the Jordanian decree, the trial court relied in large part upon Gaylord v. Gaylord , 45 So.2d 507 (Fla. 1950). In that case, the Florida Supreme Court held, "[w]e should not attempt to determine the validity of a decree of a sister state or of a foreign country." Id. at 509-10. However, in the very next sentence, the Court stated, "[m]ore certainly, we should not do so unless something appears on the face of the record which discloses its invalidity ." Id. at 510 (emphasis added). Gaylord is inapplicable here because the Jordanian decree is invalid under Florida law on its face.

Notwithstanding the cases cited above, the majority correctly emphasizes the following: the parties' marriage is presumed to be valid and Appellant bears the burden to prove that it is not. See Cobo v. Sierralta , 13 So.3d 493, 497-98 (Fla. 3d DCA 2009) (holding that a husband who argued the marriage was void because the wife remained married to her first husband bore the burden to prove the invalidity of the marriage); Stewart v. Hampton , 506 So.2d 70, 71 (Fla. 5th DCA 1987) (holding that "[t]he party attacking the legality of the last marriage has a burden of rebutting the presumption that the marriage is valid"); Grace v. Grace , 162 So.2d 314, 317 (Fla. 1st DCA 1964) ("The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary it is to be assumed that the previous marriage has been dissolved either by death or legal action ...."); see also Lopes , 852 So.2d at 405 (Griffin, J., dissenting) (opining that the majority improperly relieved the husband of his burden to establish that the parties' marriage was invalid because the wife remained married to her former husband).

To show that the parties' marriage is invalid, Appellant must prove that Klob remained married to Alkhadra at the time she married Appellant. Appellant sufficiently alleged that the Jordanian divorce decree is invalid, but he did not negate the possibility that either Klob or Alkhadra obtained another (valid) divorce decree, or that Alkhadra died, prior to the parties' marriage. See Grace , 162 So.2d at 318 ; Stewart , 506 So.2d at 72 (quoting Darsey v. Darsey , 124 Fla. 125, 167 So. 810 (1936) ). Appellant did not have the opportunity to meet this burden because the trial court did not hold an evidentiary hearing. Because Appellant set forth a colorable entitlement to relief under Rule 1.540(b)(4), the trial court abused its discretion in summarily denying the motion. See Cottrell v. Taylor, Bean & Whitaker Mortg. Corp. , 198 So.3d 688, 691 (Fla. 2d DCA 2016) ; Schuman v. Int'l Consumer Corp. , 50 So.3d 75, 77 (Fla. 4th DCA 2010).

B. Equitable considerations must be taken into account in determining whether Appellant met his burden of proof to prevail on his motion

In addition to Gaylord , the trial court (and the majority opinion) relied upon Keller v. Keller , 521 So.2d 273 (Fla. 5th DCA 1988), ruling that it would be inequitable to allow Appellant to attack the validity of the Jordanian decree. However, Keller is distinguishable from the instant case because the husband in Keller was attacking the validity of his own prior divorce decree, whereas in the instant case Appellant is attacking the validity of Klob's divorce decree. See id. at 276 (holding that the husband was estopped from asserting the invalidity of his prior divorce decree against his second wife, who did not take any part in obtaining the allegedly invalid decree). Nonetheless, I agree with the majority opinion that equitable considerations can be considered in determining whether Appellant met his burden of establishing the invalidity of both Klob's prior divorce and the parties' marriage.

Equitable factors to be taken account of include: the time that passed between Klob's Jordanian divorce and the 1.540(b)(4) motion, during which time Klob held herself out as divorced from her first husband; Klob's second marriage and divorce; evidence that Klob held herself out as Appellant's wife and Appellant held himself out as Klob's husband during the course of their marriage; the time that passed between the entrance of the parties' divorce decree and the 1.540(b)(4) motion challenging the validity of that decree, during which time the parties' acted in reliance on the divorce decree; and the short duration of the parties' marriage. Cf. Lambertini v. Lambertini , 655 So.2d 142, 143 (Fla. 3d DCA 1995) (holding that husband was estopped from raising the validity of the parties' marriage where the parties had relied on the validity of the wife's prior Mexican divorce during the approximately thirty years that they held themselves out as married, noting "the strength of th[e] presumption [of validity of the marriage] increases with the passage of time during which the parties are cohabiting as husband and wife").

Conclusion

Where a Rule 1.540(b) motion demonstrates a colorable entitlement to relief, it is an abuse of discretion to deny the motion without holding an evidentiary hearing. Schuman , 50 So.3d at 77. Accordingly, I would reverse and remand for an evidentiary hearing. On remand, it would be Appellant's burden to establish that Klob remained legally married to her first husband at the time of the parties' marriage. Should he be successful, the burden would then shift to Klob to establish that equitable considerations, as discussed above and in Keller , favor estopping Appellant's challenge to the validity of the divorce decree at issue in this case. As I would remand, I respectfully dissent.


text:
    Zachary Taylor ZEMAN, Appellants, v. STATE of Florida, Appellees.
    No. 4D17-2995
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Robert A. Herce of Herce & Herce, P.A., Tampa, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

We reverse the trial court's order summarily denying appellant's motion for postconviction relief and remand for further proceedings. We agree with appellant that the trial court erred in summarily denying his claim of newly discovered evidence without conducting an evidentiary hearing. See Nordelo v. State , 93 So.3d 178 (Fla. 2012). We express no opinion on the merits.

Reversed and remanded.

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


text:
    Wilfred LOUIS a/k/a Valness Jean-Chattles, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2612
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Wilfred Louis a/k/a Valness Jean-Chattles, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Wilfred Louis appeals the summary denial of a rule 3.850 motion for postconviction relief. We agree with appellant that the trial court erred in denying his claim of newly discovered evidence without an evidentiary hearing. See Nordelo v. State , 93 So.3d 178 (Fla. 2012) ; Barrow v. State , 940 So.2d 1235 (Fla. 5th DCA 2006).

Reversed and remanded for further proceedings.

May, Damoorgian and Ciklin, JJ., concur.


author: CONNER, J.

text:
    CITIGROUP MORTGAGE LOAN TRUST INC., Appellant, v. Jack SCIALABBA and Sharon Scialabba, Appellees.
    No. 4D17-401
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West Palm Beach, for appellant.
    Chase E. Jenkins and Matthew D. Bavaro of Loan Lawyers, LLC, Fort Lauderdale, for appellees.
   CONNER, J.

Citigroup Mortgage Loan Trust Inc. ("the Bank") appeals the final judgment entered in favor of Jack Scialabba and Sharon Scialabba ("the Borrowers") subsequent to a motion for involuntary dismissal granted at trial after the Bank finished its case in chief. We view the overarching issue in this case to be whether the required notice, as a condition precedent to foreclosure, was mailed to a correct address. We determine that the Bank presented prima facie evidence of substantial compliance with the condition precedent, reverse the involuntary dismissal and final judgment, and remand for a new trial.

Background

The Borrowers executed a promissory note and mortgage. The mortgage stated the "Property Address" as "9486 South Military Trail # 15 " (emphasis added). The parties subsequently entered into a loan modification agreement ("the modification agreement"), which stated a different "Property Address": "9486 S MILITARY TRL 4 , BOYNTON BEACH, FL 33436." (emphasis added)

After the Borrowers defaulted in payment, the Bank mailed to the Borrowers a notice of default, the right to accelerate, and the right to cure ("notice of default") to the "Property Address" stated in the modification agreement. Subsequently, the Bank brought a foreclosure action, generally alleging compliance with all conditions precedent. Attached to the complaint was a copy of the note, mortgage, and modification agreement. The Borrowers answered, specifically denying compliance with the conditions precedent regarding notice of default and additionally raising the notice noncompliance as an affirmative defense. In response to request for admissions, the Borrowers admitted they have received mail addressed to 9486 South Military Trail stating either "# 15" or "Unit 4" as part of the address. The Borrowers further admitted that at the time of their responses, "Defendants currently resides [sic] at 9486 South Military Trail Unit 4."

At trial, the Bank presented one witness. During her testimony, the Bank introduced into evidence the subject notice letter and a letter log indicating dates on which the Bank mailed letters to the Borrowers. The witness confirmed the notice of default was mailed to the "Property Address" stated in the modification agreement. Additionally, the trial court admitted into evidence a certified copy of the entire complaint, including the attached copy of the modification agreement. The witness verified that the Borrowers did not cure the default.

After the Bank rested, the Borrowers moved for involuntary dismissal asserting that the Bank failed to prove it satisfied the condition precedent of proper notice. The Borrowers argued that the address on the mortgage was listed as Unit 15, but the notice letter was improperly mailed to Unit 4. The Bank responded that the notice was sent to the proper address designated in the modification agreement. The Bank further responded that, even if the notice was mailed to an incorrect address (which it did not concede), "any deviation from the paragraph 22 language must be material in nature, meaning that it must have prejudiced the [Borrowers] in some way," which was not the case. The Bank also argued that the modification agreement listed the "Property Address" as Unit 4, and the express terms of the modification agreement superseded the original mortgage contract. The trial court found that "notice [wa]s a problem" and granted the motion for involuntary dismissal. After a final judgment was entered, the Bank gave notice of appeal.

Analysis

A trial court's ruling on a motion for involuntary dismissal is reviewed de novo. Deutsche Bank Nat'l Tr. Co. v. Clarke , 87 So.3d 58, 60 (Fla. 4th DCA 2012) (citing Brundage v. Bank of Am. , 996 So.2d 877, 881 (Fla. 4th DCA 2008) ). Additionally, the appellate court "must view the evidence and all inferences of fact in the light most favorable to the nonmoving party, and can affirm ... only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Id. (citing Brundage , 996 So.2d at 881 ).

Giving a notice of default is a condition precedent to foreclosure in most residential mortgages. "Where there are conditions precedent to filing the suit, [a] plaintiff must also prove that it has complied with them." Liberty Home Equity Sols., Inc. v. Raulston , 206 So.3d 58, 60 (Fla. 4th DCA 2016) (citing Blum v. Deutsche Bank Tr. Co. , 159 So.3d 920, 920 (Fla. 4th DCA 2015) ). However, "a plaintiff need only substantially comply with conditions precedent." Id. at 61 (citing Fed. Nat'l Mortg. Ass'n v. Hawthorne , 197 So.3d 1237, 1240 (Fla. 4th DCA 2016) ). "Substantial compliance or performance is 'performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee' the benefit of the bargain." Lopez v. JPMorgan Chase Bank , 187 So.3d 343, 345 (Fla. 4th DCA 2016) (quoting Ocean Ridge Dev. Corp. v. Quality Plastering, Inc. , 247 So.2d 72, 75 (Fla. 4th DCA 1971) ). "Moreover, a breach of a condition precedent does not preclude the enforcement of an otherwise valid contract, absent some prejudice." Raulston , 206 So.3d at 61 (citing Caraccia v. U.S. Bank, Nat'l Ass'n , 185 So.3d 1277, 1280 (Fla. 4th DCA 2016) ).

Although the trial court did not explain its reasoning for granting an involuntary dismissal other than saying "I think the notice is a problem," it appears the trial court agreed with the Borrowers' argument that the evidence showed that the notice required by paragraph 22 of the mortgage was sent to the wrong address.

Thus, we view the overarching issue to be decided by this appeal as whether the Bank substantially complied with the condition precedent of mailing the required notice to the Borrowers' correct address. In doing so, we first address two evidentiary issues regarding the modification agreement. The Borrowers contend: (1) the modification agreement was not admitted into evidence at trial, and (2) the trial court viewed the modification agreement as inadmissible hearsay evidence.

The record reflects that a copy of the recorded modification agreement was attached to the complaint. During the trial, the complaint as a trial exhibit first came up while the Bank's witness testified about possession of the note. When the Bank asked the trial court to admit a certified copy of the complaint with all attachments into evidence, the Borrower raised a hearsay objection. In response, the Bank stated that its purpose for using the complaint was to establish that the Bank had possession of the note at the time the complaint was filed, as verified in the certificate of possession attached to the complaint as Exhibit D. In ruling on the objection, the trial court stated, "I'll receive [the complaint] subject to your objection for whatever evidentiary purpose it may serve. We'll see where that goes." Shortly thereafter, the trial court said, "I'm going to take the entire Complaint. As you well know, I'm taking it for what it is worth. Most of it is hearsay if not all of the Complaint."

Later, during the argument on the motion for involuntary dismissal, the Borrowers contended that the modification agreement was not in evidence. The Bank specifically argued that the modification agreement was an attachment to the complaint which was admitted into evidence in its entirety. In counter-response, the Borrowers argued the modification agreement was hearsay on the issue of whether the Borrowers gave notice that they wanted notices sent to an address other than the "Property Address" listed in the original mortgage. Significantly, the trial court never ruled that it did not consider the modification agreement to be in evidence or that it was inadmissible hearsay as to whether the Borrowers gave notice of a change of address.

From the record on appeal, we conclude the modification agreement was admitted into evidence. If the trial court concluded the "problem" with notice in this case was that the modification agreement was an inadmissible hearsay document, then the trial court erred. The modification agreement, like the note and original mortgage, was a verbal act. See Holt v. Calchas, LLC , 155 So.3d 499, 502 n.2 (Fla. 4th DCA 2015) (concluding that an assignment of mortgage is admissible into evidence as a verbal act); see also Deutsche Bank Nat'l Tr. Co. v. Alaqua Prop. , 190 So.3d 662, 665 (Fla. 5th DCA 2016) (holding that a promissory note "is admissible for its independent legal significance" of establishing a contractual relationship between parties, regardless of the truth of assertions in the document).

Turning to the arguments regarding compliance with the condition precedent of notice of default and of the right to cure, as stated above, the original mortgage stated that the "Property Address" is "9486 South Military Trail #15 ." (emphasis added). Paragraph 22 of the mortgage contained the common language in residential mortgages requiring notice of default and the right to cure. Paragraph 15 likewise contained the common language that "[t]he notice address shall be the Property Address unless Borrower has designated a substitute notice address by notice to Lender." However, for unexplained reasons, the modification agreement stated the "Property Address" was "9486 S Military Trl 4 ," (emphasis added). Significantly, Paragraph 3 of the modification agreement, entitled "The Modification," listed the various provisions of the original mortgage to be modified, but did not mention the "Property Address". Paragraph 4(D) of the modification agreement provided that the "Loan Documents" are "reaffirmed," and Paragraph 4(E) provided that "all terms and provisions of the Loan Documents, except as expressly modified by this Agreement, remain in full force and effect."

The Bank makes two arguments on appeal regarding the address where the required notice was sent: (1) the modification agreement modified the "Property Address," and (2) the address for the property stated in the modification agreement constituted a notice of change of address requested by the Borrowers.

The Borrowers do not squarely address either argument, opting instead to focus on the propriety of the modification agreement as an exhibit. However, if the trial court determined the "problem" with the notice was that the modification agreement was not sufficient evidence of a change in the "Property Address" or a notice of change of address by the Borrowers and dismissed for either reason, we agree with the Bank's argument that involuntary dismissal at the conclusion of the plaintiff's evidence was improper because at that point the trial court was not permitted to weigh the evidence. See DFRP Note Purchase Partners I, LP v. Bruno , 196 So.3d 576, 577 (Fla. 4th DCA 2016) ("On a motion for involuntary dismissal, the trial court may not weigh the evidence, but must view it 'in the light most favorable to [the nonmoving party].' " (quoting Miller v. Nifakos , 655 So.2d 192, 193 (Fla. 4th DCA 1995) ); Perez v. Perez , 973 So.2d 1227, 1231 (Fla. 4th DCA 2008) ("An involuntary dismissal is properly entered only where the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case. The trial court may not weigh and judge the credibility of the evidence." (citations omitted) ); see also McCabe v. Hanley , 886 So.2d 1053, 1056 (Fla. 4th DCA 2004) ("[A] trial court cannot weigh evidence in ruling on a motion for involuntary dismissal at the close of the plaintiff's case but just deny the motion when a prima facie case is made").

Additionally, two recent decisions from this Court lead us to the conclusion that the trial court erred in granting an involuntary dismissal in this case, even though the cases are somewhat factually different.

In Federal National Mortgage Ass'n v. Hawthorne , 197 So.3d 1237 (Fla. 4th DCA 2016), we held that the lender "substantially complied with the mortgage by mailing the default notice to the [borrower's] primary address, which was typewritten underneath the [borrower's] signature on the mortgage." Id. at 1238. In Hawthorne , the mortgage listed the "property address" as an address in Fort Pierce, Florida. Id. However, under the borrower's signature, the mortgage listed the borrower's primary address in New York. Id. at 1238-39.

At trial, the lender's witness testified that the lender mailed the notice of default to the borrower's New York address, not to the property address. Id. at 1239. There was no evidence that the borrower designated the New York address as his substitute notice address. Id. The trial court granted the borrower's motion for involuntary dismissal, reasoning that the lender did not comply with the mortgage's requirement to mail the notice of default to the notice address, which the mortgage defined as the property address. Id.

On appeal, the lender asserted that it substantially complied with the mortgage by mailing notice to the borrower's New York address because the mortgage provided that the mortgaged property was a second home, and the primary New York address "was already disclosed on the mortgage instrument." Id. at 1239-40. The borrower asserted that the mortgage required strict compliance and the lender therefore failed to comply with the requirement to send notice to the property address. Id. at 1240.

We agreed with the lender, reversed, and held that substantial compliance is sufficient, unless there exists some prejudice. Id. We reasoned that the address the lender used was a valid address for the borrower; the lender reasonably relied on the address typed under the borrower's signature to ensure that the borrower received notice; the borrower was personally served with the complaint at his New York address, which "confirmed that address's accuracy"; and the lender's failure to mail notice to the property address did not prejudice the borrower. Id. at 1240-41.

Similarly, in Caraccia , we agreed with the bank that it substantially complied with the notice requirement. 185 So.3d at 1278. There, the United States Postal Service informed the bank that the borrower "did not reside at the property address and provided the Bank with a new address at a PO Box." Id. at 1280. The bank then sent the notice of default to the PO Box address, rather than to the property address. Id. The borrower later sent the bank a letter that listed the borrower's return address as the same PO Box to which the notice letter had previously been sent. Id. We affirmed the judgment of foreclosure, reasoning that

[a]lthough [the borrower] did not personally or directly notify the Bank of this change of address prior to the mailing of the default letter, U.S. Bank reasonably relied on the information from the Postal Service to ensure that [the borrower] actually received the notice. Had the Postal Service's information proven incorrect, this may have been a different case, but [the borrower]'s later correspondence from this address confirmed the accuracy of the address utilized. The failure of U.S. Bank to send the notice to the property address did not prejudice [the borrower], and may have even benefitted him.

Id.

In the instant case, the Bank sent the required notice to the address listed in the modification agreement. We are satisfied that the Bank "reasonably relied on that address ... to ensure that [the Borrowers] actually received the notice." See Hawthorne , 197 So.3d at 1241 ; see also Caraccia , 185 So.3d at 1280 (same). Although there is no independent evidence in the record that the Borrowers "personally or directly" notified the Bank of a change of notice address, see Caraccia , 185 So.3d at 1280, the modification agreement provided a different "Property Address" which was sufficient to constitute substantial compliance with the notice requirements.

Even if we concluded that the required notice was mailed to an incorrect address, the Bank correctly points out that the defective notice did not prejudice the Borrowers, as they did not attempt to cure the default. See Ortiz v. PNC Bank, Nat'l Ass'n , 188 So.3d 923, 927 (Fla. 4th DCA 2016) ("We also note that there is no evidence here that [the borrower] was prejudiced by the language variation in the default letter."); Gorel v. Bank of N.Y. Mellon , 165 So.3d 44, 47 (Fla. 5th DCA 2015) ("We agree with Bank that the defective notice did not prejudice [the borrower], as he made no attempt to cure the default."). Thus, we are satisfied the Bank substantially complied with Paragraphs 15 and 22 of the mortgage such that its performance, " 'while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee' the benefit of the bargain." Lopez , 187 So.3d at 345 (quoting Ocean Ridge Dev. Corp. , 247 So.2d at 75 ).

Finally, we address the Borrowers' argument that lack of prejudice, in relation to failure to comply with a condition precedent, is an avoidance that was not pled by the Bank. In support of the argument, the Borrowers cite Florida Rule of Civil Procedure 1.100(a) and North American Philips Corp. v. Boles , 405 So.2d 202 (Fla. 4th DCA 1981).

Florida Rule of Civil Procedure 1.100(a) provides, in part, that "[i]f an answer ... contains an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply containing the avoidance." The Borrowers argue that lack of prejudice is a matter of avoidance which the Bank failed to assert in a reply to their affirmative defense of failure to comply with a condition precedent. However, two other rule provisions must be considered.

Florida Rule of Civil Procedure 1.110(d) provides a list of affirmative defenses that must be pleaded. The Bank argues that failure to comply with condition precedent is not listed as an affirmative defense, therefore no reply was required. As additional support, the Bank cites to Florida Rule of Civil Procedure 1.120(c), which specifically addresses pleading conditions precedent. Rule 1.120(c) provides, in part, that "[a] denial of performance or occurrence shall be made specifically and with particularity." The Bank contends that because a denial of performance or occurrence of a condition precedent is covered in rule 1.120(c) and is not listed in rule 1.110(d), no plea in avoidance was required. However, the Bank ignores the language of rule 1.110(d) which states, in part, that "[i]n pleading to a preceding pleading a party shall set forth affirmatively ... any other matter constituting an avoidance ...." (emphasis added). As we see it, lack of prejudice is an avoidance which should be pleaded. The legal issue of lack of prejudice was specifically asserted in the context that a failure to substantially comply with a condition precedent is not fatal. In other words, similar to an affirmative defense, the legal position asserts that even if proper notice of default is not given, foreclosure should be permitted to proceed. However, for the same reason we determine Boles does not control the outcome of this case, the Bank's failure to plead an avoidance does not defeat its arguments on appeal.

We view Boles as inapposite to this case. In Boles , the plaintiff filed a complaint, and the defendant's answer asserted an affirmative defense that the plaintiff had failed to fulfill certain conditions precedent. 405 So.2d at 203. The plaintiff filed a reply that denied the affirmative defenses.

Id. At trial, the plaintiff argued that strict compliance with the conditions precedent was waived, based on conduct by the defendant. Id. The defendant objected to the waiver evidence on the grounds that it was irrelevant to the issues framed by the pleadings. Id. The trial court overruled the objection and ultimately entered a verdict for the plaintiff. Id.

We reversed and held that the plaintiff was required to plead an avoidance because he introduced testimony that shifted the focus of the trial "to the conduct of the defendant ... what it had said or done to excuse plaintiff's performance of the conditions precedent." Id. (alteration in original). We reasoned that the trial court's focus on the defendant's conduct "was a blind issue which veered into the midst of the trial without warning and without an opportunity to negate." Id.

In the instant case it cannot be said that the evidence and argument of lack of prejudice "was a blind issue which veered into the midst of the trial without warning and without an opportunity to negate" because the Borrowers never objected to the evidence or argument, as the defendant did in Boles , on grounds that the issue was not framed in the pleadings. In our view, the issue was tried by consent. Fla. R. Civ. P. 1.190(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."); see Federal Home Loan Mortg. Corp. v. Beekman , 174 So.3d 472, 475 (Fla. 4th DCA 2015) ("An issue is tried by consent 'when there is no objection to the introduction of evidence on that issue.' " (quoting Scariti v. Sabillon , 16 So.3d 144, 145-46 (Fla. 4th DCA 2009) ) ).

Having determined the trial court improperly granted a motion for involuntary dismissal after the plaintiff finished its case-in-chief, we reverse the involuntary dismissal and final judgment and remand for a new trial.

Reversed and remanded for further proceedings.

Warner and Kuntz, JJ., concur.

      We do not address the issue of whether a copy of the modification agreement attached to a certified copy of the complaint met the requirements of Section 90.953, Florida Statutes (2017) (Admissibility of Duplicates). The issue was partially raised in the trial court, but not adequately addressed in the briefs.


text:
    Manila LAKMAITREE, Appellant, v. 21ST MORTGAGE CORPORATION, Appellee.
    No. 4D17-1263
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Brian Korte of Korte & Wortman, P.A., West Palm Beach, for appellant.
    Sonia Henriques McDowell of Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for appellee.
   Per Curiam.

On the Court's own motion we recall our mandate issued on March 23, 2018, withdraw our prior opinion issued on March 7, 2018, and issue the following opinion in its place.

After the court entered an involuntary dismissal against the lender for failing to establish standing, the borrower requested an award of its attorney's fees. The court denied the motion, and the borrower appeals.

This Court answered the question raised in this appeal in our en banc opinion in Nationstar Mortgage LLC v. Glass , 219 So.3d 896 (Fla. 4th DCA 2017). We subsequently addressed the issue in several cases, including Christiana Tr., a Div. of Wilmington Sav. Fund Soc'y, FSB for Normandy Mortgage Loan Tr., Series 2013-18 v. Rushlow , 231 So.3d 558 (Fla. 4th DCA 2017), and, more recently, Sabido v. Bank of New York Mellon , 4D16-2944, --- So.3d ----, 2018 WL 735950 (Fla. 4th DCA Feb. 7, 2018). Furthermore, our sister districts have uniformly reached the same conclusion. Bank of N.Y. Mellon Tr. Co. v. Fitzgerald , 215 So.3d 116 (Fla. 3d DCA 2017) ; HFC Collection Ctr., Inc. v. Alexander , 190 So.3d 1114, 1116 (Fla. 5th DCA 2016).

We reject the borrower's argument that it is inequitable to apply these decisions; and, regardless, this Court's unanimous en banc decision is binding on this panel. Therefore, the circuit court's order is affirmed.

Affirmed.

Gerber, C.J., Gross and Kuntz, JJ., concur.