text:
    GLF CONSTRUCTION CORPORATION, Appellant, v. CREDINFORM INTERNATIONAL, S.A., Appellee.
    No. 3D16-1348
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    Rehearing Denied August 16, 2017

      Ferencik Libanoff Brandt Bustamante & Goldstein and Ira Libanoff (Fort Laud-erdale); Holland & Knight, Rodolfo Soron-do, Jr., and Rebecca M. Plasencia, for appellant.
    Foley & Lardner, Edmund T. Baxa, Jr., Natalia M. Salas, James A. McKee (Tallahassee) and Benjamin J. Grossman (Tallahassee), for appellee.
    Before SUAREZ, EMAS and LOGUE, JJ.
   ON APPELLANT’S MOTION FOR REHEARING AND/OR CLARIFICATION AND CORRECTION

PER CURIAM.

We deny appellant’s motion for rehearing, but grant its motion for clarification and correction, withdraw the previously-issued opinion, and substitute the following corrected opinion in its stead.

INTRODUCTION

GLF Construction Corporation (“GLF”), a Florida corporation, appeals the trial court’s denial of its motion to dismiss for forum non conveniens. We affirm.

Credinform International, S.A. (“Credin-form”), a Bolivian insurance company, filed suit against GLF in Miami-Dade County Circuit Court for fraud, aiding and abetting fraud, negligent misrepresentation, and violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).

GLF moved to dismiss the complaint for forum non conveniens, asserting that Italy was a more appropriate forum. GLF also contended that the allegations against GLF were, in reality, allegations against GLF’s parent company, Grandi Lavori, an Italian corporation, arising out of a construction project in Bolivia, and that GLF (a Florida corporation)’was sued (instead of Grandi Lavori) to enable the action to be filed in Florida.

BACKGROUND

In 2007, the governments of Bolivia and Italy entered into an agreement by which the Italian government,' through an agency called the Italian Cooperation, agreed to partially fund the construction of a dam on the Misicuni River in Bolivia. The funding was contingent upon the award of the construction contract to a consortium headed by an Italian contracting company. Empre-sa Misicuni, a Bolivian government-owned company, was in charge of overseeing the Misicuni Dam Project.

In June 2008, Empresa Misicuni issued an invitation to bid on the Misicuni Dam Project, specifying that an Italian company must have a leadership position (51%) in the construction consortium. Several months later, Grandi Lavori, an Italian engineering and construction company, joined with a construction consortium, Consorcia Hidroeléctrico Misicuni (“CHM”), together with several South American companies, for the purpose' of bidding on the Misicuni Dam Project. Grandi Lavori has its principal place of business in Rome, but its subsidiary, GLF (the defendant below), is a Florida corporation. Francisco Senis, an employee of Grandi Lavori and the Vice President of GLF, resides in Florida, but has dual citizenship in Italy and'America. In July 2008, Grandi Lavori’s president, Alessandro Mazzi, executed a power of attorney in Rome, appointing Senis to represent Gran-di Lavori related to its business and projects in South America.

On November 2008, Senis executed a power of attorney in the Bolivian embassy in Miami, to favor of Martin Rovira Rada (“Rovira”), a Bolivian resident, authorizing Rovira to represent Grandi Lavori in the CHM consortium. Rovira later signed the CHM Organizational Agreement, in December, 2008, which provides that Grandi Lavori has a fifty-one percent ownership interest in the CHM consortium. Rovira listed GLF’s Miami address as the address for Grandi Lavori.

The CHM consortium was awarded the Misicuni Dam Project in January 2009. The successful bidder was required to provide Empresa Misicuni with an advance payment bond and. a performance bond issued by a.Bolivian insurance company. Rovira contacted Credinform to this purpose, and sent Credinform the necessary information, including the CHM Organizational Agreement, which, importantly, indicated that Gra'ndi Lavori had a fifty-one percent ownership interest'in the CHM consortium.

On March 30, 2009, Grandi Lavori’s president executed a new power of attorney in Rome, authorizing Rovira to act on behalf of Grandi Lavori for purposes of CHM and the Misicuni Dam Project. Thereafter, Credinform issued the advance payment bond and the performance bond. Rovira signed both bonds, using mrovira@ glfusa.com as his contact email.

Construction began on the Project, and in June 2009, CHM wire transferred $1,530,333 to GLF’s Miami account. At some point during the construction, and for reasons not directly related to this appeal, it was determined that work on the Project should not continue. When the remaining members of the CHM consortium refused to halt construction, Grandi Lavori suspended its participation in the Project, and funding of the Project was suspended. Empresa Misicuni terminated the construction contract in November 2013, and demanded that Credinform pay on the bonds, which it did, in the amount of nearly $15,000,000. Credinform then filed the instant action against .GLF in Miami-Dade.

In its Amended Complaint (and in its response to GLF’s motion to dismiss on forum non conveniens grounds), Credin-form contended that GLF was formed to help Grandi Lavori with its business activities in the Americas, and that GLF provided Gráñdi Lavóri with personnel and infrastructure support regarding Grandi Lavori’s pursuit of the construction contract, the acquisition of the construction bonds and the monitoring of the Misicuni Dam Project.

Credinform alleged that Senis accepted the power of attorney from Grandi Lavori in the scope of his employment with GLF and that Senis’ power of attorney to Rovi-ra was made in furtherance of GLF’s corporate purpose of assisting its parent company with its business in the Americas. Credinform also alleged that Rovira worked with Senis to obtain the bonds from Credinform in furtherance of GLF’s purpose of assisting Grandi Lavori. Finally, the Amended Complaint, alleged that agents or employees of GLF were part of a finance committee to monitor the Project and to approve expenses.

GLF renewed its motion to dismiss for forum non conveniens, incorporating its prior filings and submitting additional evidence. After a hearing, the trial court denied the motion to dismiss, finding that although Italy would be a prbper alternative forum, the private factors weighed slightly in favor of Credinform’s forum choice, and the public factors weighed in favor of Florida. This appeal followed.

ANALYSIS:

We review the trial court’s'denial of the motion to dismiss for forum non conveniens under an abuse of discretion standard. Ryder Sys., Inc. v. Davis, 997 So.2d 1133 (Fla. 3d DCA 2008).

On appeal, GLF asserts that the trial court abused its discretion in determining that the private and public factors weigh in favor of Florida because it “failed to properly analyze” those factors. However our review of the record, including the transcript of the hearing, establishes that the trial court conducted a proper, adequate analysis, and we find no abuse of discretion in its determinations.

As set forth in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996), Florida courts are required to consider four factors in analyzing whether a case should be dismissed on forum non conveniens grounds. The Kinney analysis is incorporated into Florida Rule of Civil Procedure 1.061(a), which provides:

(a) Grounds for Dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case,, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(S) if the balance of private interests is ¿t or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.

In this case, it is undisputed that Italy is an adequate alternative forum, and because the trial coürt ultimately denied GLF’s motion to dismiss, we are concerned here only with the second and third prongs of the above Kinney analysis.

Private Interests

As to the private interests prong, GLF asserts that the trial court focused solely on Credinform’s ability to prove its claims and Ignored GLF’s ability to prove its defenses. We do not agree. A review of the record establishes that the trial court considered both sides of the issue, and that it did not agree with GLF’s contention that Italy was a better forum because most of the evidence necessary to establish GLF’s defenses were located there. Further, we note that Credinform sued GLF in its home , forum of Florida, and, as we have noted in prior decisions, “a forum non con-veniens argument coming from a party sued where, [it] resides is both ‘puzzling’ and ‘strange.’ ” Cardoso v. FPB Bank, 879 So. 2d 1247, 1260 (Fla. 3d DCA 2004) (quoting Sanwa Bank, Ltd. v. Kato, 734 So.2d 557, 561 (Fla. 5th DCA 1999)). And as the Florida Supreme Court has noted in this regard: “Indeed, ‘the fact that the defendants are located in this country,’ and especially in this state, “is one indication that it would be less burdensome for the defendants to defend suit in this country than it would be for [the plaintiff] to litigate in a foreign country.” Cortez v. Palace Resorts, Inc., 123 So.3d 1085, 1097 (Fla. 2013) (quoting Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 346 (8th Cir. 1983)).

GLF also contends that Credinform sued GLF only to enable the action to be brought in Florida, when in fact the “real” defendant should have been Grandi Lavori. However, a review of the well-pleaded allegations of the amended complaint evidences that Credinform did assert factually-suffícient claims against GLF for GLF’s own actions. The amended complaint alleges, inter alia, that:

• In order to bid on and qualify for the Misicuni Dam Project, there was a requirement that an Italian company (such as Grandi Lavori) must hold a leadership position (51%) in the construction consortium;
• Senis and Rovira, in the course and scope of their agency and/or employment with GLF, and for the purpose of assisting Grandi Lavori in its business in the Americas, represented to Credin-form that Grandi Lavori was a majority participant in CHM construction consortium, to induce Credinform to issue construction bonds for the Project;
• Credinform, knowing Grandi Lavori was an “internationally known engineering and construction company,” issued the bonds based on “[t]he technical expertise and the financial strength of Grandi Lavori,” which had “completed construction of dozens of dams, hydroelectric plants and thermic-electrical power plants.”
• Grandi Lavori never participated in the CHM consortium, but instead permitted the CHM consortium to use its name (thereby satisfying the required fifty-one percent participation of an Italian company) in exchange for a kickback, enabling CHM to secure the contract;
• GLF was aware of these “secret agreements” between Grandi Lavori and CHM when it represented to Credin-form that Grandi Lavori was participating in the CHM consortium and would be the technical lead on the Project;
• Ultimately, Credinform alleged, “[b]ut for GLF’s representations regarding the nature and extent of Grandi Lavori’s participation in CHM, Credinform would not have issued the construction bonds.”

Thus, GLF’s postulation regarding Cre-dinform’s reasons for suing GLF (instead of Grandi Lavori), at least at this juncture of the proceedings, does not overcome Credinform’s choice of a Florida forum. Although Credinform may well have claims against Grandi Lavori for its failure to perform or complete the Project, the claims asserted in the action below are against GLF for alleged misrepresentations made by its employees or agents regarding Grandi Lavori’s participation in CHM, which induced Credinform to issue the bonds.

While it is clear that this litigation will require production of evidence and witnesses from Italy to establish certain facts, including Grandi Lavori’s true role in the consortium, it is equally clear that there will be evidence and witnesses in Bolivia, where the Project is located, and in Florida, where GLF is incorporated and located. The documents submitted by GLF, and the allegations of the complaint, establish that many emails and letters came from GLF in Florida and that money was deposited from CHM into GLF’s Florida account. Florida law is clear that “[t]he presumption in favor of a plaintiffs choice of forum ‘can be defeated only if the relative disadvantages to the defendant’s private interests are of sufficient weight to overcome the presumption.’” Publicidad Vepaco, C.A. v. Mezerhane, 176 So.3d 273, 278 (Fla. 3d DCA 2015) (quoting Kinney, 674 So.2d at 91). Even foreign plaintiffs are entitled to some deference in their choice of forum. Publicidad Vepaco, 176 So.3d at 278. Thus, we find no abuse of discretion in the trial court’s determination that the private interests tilt in favor of Florida or, at best, are in equipoise.

Public Interests

Turning to the public interest factors, GLF asserts that the trial court failed to analyze these factors, instead simply concluding that the public interest favored Florida because GLF is a Florida corporation. However, the record fails to support this contention. Although the trial court did state, during the hearing, that “the public interest is affected by suing a defendant in Florida,” in context, this comment refers to the fact that the public interest analysis, in a case involving a Florida defendant, requires consideration of the nature and extent of the connection of the litigation with Florida. “The public interest inquiry focuses on whether the litigation has a general nexus with the chosen forum ‘sufficient to justify the forum’s commitment of judicial time and resources to it.’” Id. at 281 (quoting Cortez v. Palace Resorts, Inc., 123 So.3d 1085, 1093 (Fla. 2013)).

Several significant connections with Florida are alleged in this case:

• Senis, employed by GLF (a Florida corporation), represented the interests of Grandi Lavori and the CHM through actions undertaken by him in Florida;
• The power of attorney, signed by Sen-is in Florida, authorized Rovira (a Bolivian citizen) to act on behalf of Grandi Lavori on the Project;
• A May 2009 letter from Senis to Cre-dinform, in which Senis represented Grandi Lavori’s interest in the Project, was sent from Miami;
• GLF received money from CHM at GLF’s Florida bank account (although GLF does not dispute this, it does dispute whether this money was ultimately intended for GLF or Grandi Lavori);
• The core allegations of the Amended Complaint (GLF’s misrepresentations to Credinform, which induced Credinform to issue the performance and payment bonds) arose in Florida, and the claims against GLF are governed by Florida law.

Three general public interest factors are at play: First, “courts may validly protect their dockets from cases which arise within their jurisdiction, but which lack significant connection to it;” second, “courts may legitimately encourage trial of controversies in the localities in which they arise;” and third, “a court may validly consider its familiarity with governing law when deciding whether or not to retain jurisdiction over a case.” Kinney, 674 So.2d at 92. As applied to the instant case, we find no abuse of discretion in the trial court’s determination that the public interest factors weigh in favor of a Florida forum.

CONCLUSION

We hold that the trial court conducted a proper analysis pursuant to Kinney and rule 1.061(a), and did not abuse its discretion in denying GLF’s motion to dismiss for forum non conveniens.

Affirmed.

      . The court commentary to rule 1.061 notes: "This section was added to elaborate on Florida's adoption of the federal doctrine of forum non conveniens in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996), and it should be interpreted in light of that opinion.”

      . We disagree with Credinform's contention that it was not necessary for the trial court to analyze the public interest factors because it found the private interests did not favor dismissal. Florida law is clear that court must analyze the public interest factors where it finds the private interests are at or near equipoise, which was the case here. See Rolls-Royce, Inc. v. Garcia, 77 So.3d 855 (Fla. 3d DCA 2012).


source: Caselaw Access Project

author: LUCK, J.

license: Public Domain

text:
    Cleto Marcello CARDONA, Appellant, v. Claudia Alexandra Paulhiac CASAS, Appellee.
    Nos. 3D16-712; 3D16-677
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    Cleto Marcello Cardona, in proper person.
    Claudia Alexandra Paulhiac Casas, in proper person,.
    Before LAGOA, LOGUE and LUCK, JJ.
   LUCK, J.

Cleto Marcello Cardona, thé former husband in this divorce case, contends the trial court committed ten errors between its final judgment of dissolution of marriage and final order awarding the former wife, Claudia Alexandra Paulhiac Ca-sas, attorney’s fees, We affirm all but one of the alleged errors because either they are not errors at all, or we cannot review whether the trial court abused its discretion or committed harmful error without a transcript or reconstructed record of the multi-day dissolution and attorney’s fees hearings. See Rodriguez v. Lorenzo, 215 So.3d 631, 632 (Fla. 3d DCA 2017) (“Because the standard of review is abuse of discretion, and the former wife has not provided this Court with a transcript of the relevant proceedings* the former wife has neither rebutted the presumption against permanent periodic alimony nor shown an. abuse of the trial court’s discretion, The absence of a transcript also precludes review of the remaining forms of alimony initially requested by the former wife.” (citations omitted)); Jericka v. Jericka, 198 So.3d 661, 663 (Fla. 2d DCA 2015) (“We recognize that in some cases the absence of a transcript does not preclude reversal where the error is apparent on the face of the judgment. ‘However, a harmless error review is'required in alimony cases, and the lack of a transcript frustrates our ability to conduct such a review. That is, without the transcript or suitable substitute, we cannot evaluate the entire case as required for a harmless error analysis.” (citations omitted)).

The one alleged error we reveráe— the former, wife was designated as the beneficiary on the life insurance policy to secure the child support payments:—is apparent from the face of the, final judgment of dissolution. The trial court ordered that the former husband “provide a life insurance policy in the amount of $1,400,000.00 payable to the [former wife] as security for child support and other security as listed in the Final Judgment.” While section 61.13(1)(c) of the Florida Statutes authorizes the trial court to order the purchase or maintenance of security (for example, a bond or life insurance policy) “[t]o the extent necessary to protect an award of child support,” § 61.13(1)(c), Fla. Stat. (2016), “the former wife should not be named as the beneficiary of the policy. The wife has no protectable interest except as the obligee of the child support payments. It should be made clear that the policy is for the benefit of the children and ho one else.” Layeni v. Layeni, 843 So.2d 295, 300 (Fla. 5th DCA 2003); see also Zvida v. Zvida, 103 So.3d 1052, 1054 (Fla. 4th DCA 2013) (“[T]he trial could should require that the children be ■ designated as the beneficiaries of the life insurance policy purchased to secure the child support payment”).

We reverse only the portion of the final judgment of dissolution ordering the former husband to provide a life insurance policy to secure child support payments, and remand for entry of an amended judgment making clear that the policy is for the benefit of the minor child (M.C.) and no one else. We affirm in all other respects the trial court’s thoughtful and detailed final judgment of dissolution of marriage and order awarding attorney’s fees to former wife.

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


author: Per Curiam.

text:
    STATE of Florida, Appellant, v. John TELUCIEN, Appellee.
    No. 4D16-277
    District Court of Appeal of Florida, Fourth District.
    August 16, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellant.
    Roger Cabrera of Roger Cabrera, P.A., Miami, for appellee.
   ON MOTION FOR REHEARING

Per Curiam.

We grant the state’s motion for rehearing, withdraw our prior opinion, and substitute the following in lieu thereof.

The state appeals from a final order granting the defendant’s motion for speedy trial discharge. The state argues that the defendant’s motion for continuance on a misdemeanor charge waived his right to a speedy trial on the felony charge, which was filed outside of the 175-day speedy trial but arose from the same criminal episode. We agree and reverse the discharge order.

The defendant was arrested on July 30, 2014, on a complaint charging him with one count of felony child abuse and one count of misdemeanor battery. The charges stemmed from his alleged texting relationship and physical contact with a minor who attended the summer camp where the defendant worked as a counsel- or. On August 27, 2014, the state filed a “no information” on both charges. On October 27, 2014—just one. day before the expiration of the speedy trial period for a misdemeanor—the state filed an information as to the misdemeanor battery charge.

On January 29, 2015, the defendant requested and received a continuance. On August 18, 2015, the state “up-filed” or amended its information, charging the defendant with a felony count of lewd and lascivious conduct. The new felony charge arose from the same conduct for which the defendant was initially arrested, but it was not filed until 209 days after the speedy trial period for a felony had expired. About a month later, the state entered a nolle prosequi on the misdemeanor charge.

The defendant filed a motion to discharge pursuant to Florida Rule of Criminal Procedure 3.191(a), contending that he was entitled to discharge because the information was filed 384 days after the defendant’s initial arrest and 209 days after the expiration of the 175-day speedy trial period established in rule 3.191. The state opposed the motion, arguing that the defendant’s prior continuance and speedy trial waiver in the misdemeanor case waived his speedy trial rights in the felony case as well. The trial court determined that, because the defendant did not waive his speedy trial rights until after the 175-day speedy trial period for a felony had expired, the post-expiration continuance was a nullity. Accordingly, the court ruled that the state was not éntitled to the recapture period and granted the defendant’s motion for speedy trial discharge.

The standard of review of a trial court’s order discharging a defendant on speedy trial grounds is de novo. State v. Nelson, 26 So.3d 570, 573-74 (Fla. 2010).

Florida Rule of Criminal Procedure 3.191 is the procedural mechanism by which a defendant can assert the right to a speedy trial. The speedy trial rule provides that a defendant must be brought to trial within ninety (90) days of being arrested if the crime charged is a misdemeanor, and within 175 days of being arrested if the crime charged is a felony. Fla. R. Crim. P. 3.191(a). If the defendant is not tried within these time frames, he or she is entitled to enforce the right to a speedy trial by filing a Notice of Expiration of Speedy Trial. Fla. R. Crim. P. 3.191(a) & (p). The notice triggers the requirement that the court hold a hearing within five (5) days. Fla. R. Crim. P. 3.191(h) & (p)(3). If the court determines that none of the reasons set forth in rule 3.191(j) exist to justify delay in bringing the defendant to trial, the court must order that the defendant be brought to trial within ten (10) days. Fla. R. Crim. P. 3.191(p)(3). Failure of the state to bring the defendant to trial within the recapture period entitles defendant to discharge from the crime. Id.

The issue in this case is whether the state is entitled to a recapture period in the felony lewd and lascivious conduct case where the defendant’s waiver of his speedy trial rights in the related misdemeanor case occurred after the 175-day period for filing a felony charge.

In its written order granting the defendant’s motion for discharge, the trial court concluded that, because the state failed to file felony charges until 384 days after his arrest, and because the defendant did not waive his speedy trial rights until after the 175th day, the post-expiration continuance was a nullity. In so ruling, the court relied on a “trilogy of Florida Supreme court cases,” which addressed the effect of the state’s failure to file charges before expiration of the speedy trial period upon the state’s right to the recapture provisions. See State v. Agee, 622 So.2d 473 (Fla. 1993); Genden v. Fuller, 648 So.2d 1183 (Fla. 1994); State v. Williams, 791 So.2d 1088 (Fla. 2001). The trial court summarized the holding in these cases as follows:

The Florida Supreme Court in State v. Agee, 622 So.2d 473 (Fla. 1993) addressed the effect of a nolle prosequi on the speedy trial requirements. The court noted that allowing the State to unilaterally toll the running of the speedy trial period by entering a nolle prosequi, would eviscerate the speedy trial rule. It would make it possible for a prosecutor with a weak case to enter a nolle prose-qui while strengthening the case and refiling the “charges based on the same criminal episode months or even years later, thus effectively denying an accused the right to a speedy trial.” Id. at 475. The court held that “when the State enters a nol pros (sic), the speedy trial period continues to run and the State may not refile charges based on the same conduct after the period has expired.” Id.
The holding in Agee was extended to situations in which the state has announced a “no action” rather than a nolle prosequi. In Genden v. Fuller, 648 So.2d 1183 (Fla. 1994), the Florida Supreme Court held that the speedy trial period “continues to run when the state voluntarily terminates prosecution before formal charges are filed and the State may not file charges based on the same conduct after the speedy trial period has expired.” Id. at 1185. The court further found that there is no legally cognizable difference- between the situation in Agee where the state voluntarily terminated prosecution after formally charging the defendant and the situation in Genden where the state terminated prosecution before filing an information. Id. (citing Fuller v. Genden, 630 So.2d 1150, 1150 (Fla. 3d DCA 1993)).
The underlying principle in Agee and Genden was further extended by the Florida Supreme Court in State v. Williams, 791 So.2d 1088 (Fla. 2001), to circumstances where the state' failed to act until after the speedy trial period expired. The court found that there was no legally cognizable difference between the state announcing a “no action,” and the state failing to act until after the expiration of the speedy trial period. Id. at 1091 (citing Williams v. State, 774 So.2d 23, 24 (Fla. 2d DCA 2000)). The court concluded that “[a]s in Genden, the state was not entitled to a recapture period under rule 3.191.” Id.
In all three cases, the state’s failure to file charges prior to the expiration of the speedy trial period prevented the defendant from filing a notice of expiration pursuant to rule 3.191(p)(2). Because the state’s right to recapture is linked to a defendant’s ability to exercise the right to file a notice of expiration when the speedy trial period has run, the state was not given the benefit of the recapture period either in Agee, Genden, or Williams. As explained by the court in
State v. Clifton, 905 So.2d 172, 176 (Fla. 5th DCA 2005), the rationale behind the rule adopted in Agee and extended to Genden and Williams is “based on fairness to the accused and preservation of the integrity of the speedy trial rule.” To allow the state to proceed with prosecution in cases in which it announces a nolle prosequi or no action or where it does nothing to initiate prosecution before a defendant can exercise his speedy trial rights, would circumvent the purpose of the speedy trial rule. Id. at 177.

Applying Apee, Genden, and Williams to this case, the trial court stated:

In the instant case, the state signaled its intent to terminate its prosecutorial efforts as to both the misdemeanor and the felony charge when it filed a “no information” on August 27, 2014. The state then timely filed an information charging Defendant with one count of misdemeanor battery. However, the state clearly abandoned its prosecutorial efforts as to the felony charge by failing to formally charge the Defendant with a felony during the speedy trial period. Only after 209 days from the expiration of the speedy trial period for a felony (384 days after arrest) did the state up-file an information in circuit court charging Defendant with a second degree felony.
The- facts of this case present a scenario similar to that in Agee, Genden, and Williams, in which the state lulled the Defendant into believing that it was unnecessary for him to file a notice of expiration of speedy trial after the 175-day speedy trial period for a felony had passed. Thus, the state is not entitled to the recapture period. Fairness to the accused and the need to' preserve the speedy trial rule require that this Court grant Defendant’s Motion for Discharge, as it was the State’s action that deprived the Defendant of the possibility to file a notice of expiration of speedy trial as to the felony charge. This Court notes that the outcome would have been different had the state not entered a nolle prose-qui of the misdemeanor charge, because that charge was timely filed and the Defendant requested a continuance prior to filing a notice of expiration of the applicable speedy trial period.

We disagree with the trial court’s above reasoning that the defendant’s post-expiration continuance was a nullity and that the state was not entitled to the speedy trial rule’s recapture period. Under the facts of this case, the trial court erroneously relied on the Agee-Genden-Williams line of cases in concluding that the state abandoned its prosecution of the felony charge and lulled the defendant into a position where he could not seek a speedy trial. Here, there was no circumvention of the purpose or intent of the speedy trial rule. See State v. Clifton, 905 So.2d 172, 176 (Fla. 5th DCA 2005). The state timely filed a misdemeanor charge against the defendant, the defendant moved for a continuance (albeit after expiration of the then-applicable speedy trial period for the misdemeanor), and the state later amended the information to charge the defendant with a felony based on the same arrest and conduct.

In Nelson, the Florida Supreme Court held that when a defendant requests a continuance before filing a notice of expiration of the speedy trial period, but after expiration- of the speedy trial period, a waiver of the defendant’s right to speedy trial results on all charges arising from the same criminal episode, including any newly filed charges arising out of the incident. 26 So.3d at 576. Nelson rejected the notion that a post-expiration waiver acted as a nullity, which was the main principle upon which the trial court’s ruling regarding the defendant’s waiver rested. Id. at 579-80.

In this case, it is undisputed that the state commenced prosecution against the defendant through the filing of a misdemeanor information within the 90-day misdemeanor speedy trial period. It is further undisputed that the defendant obtained a continuance, or waiver, of his speedy trial rights; during the pendency of the case. When the state later filed felony charges based on the same conduct, the original w:aiver continued to act as a waiver as to the felony, despite that it was made after the speedy trial expiration period for a felony. As Nelson. noted, this-waiver is construed as an “ongoing waiver” of speedy trial rights as to all charges arising out of the incident. See id. at 576; see also McClover v. State, 217 So.3d 96, 99 (Fla. 4th DCA 2017) (holding that the defendant’s speedy trial waiver at docket call shortly after her arrest for retail theft at one retail store applied to new charges for retail theft at a second store, which were filed more than 175 days after the initial arrest, where the charges arose from that same arrest); Wallace v. State, 189 So.3d 1022, 1026-28 (Fla. 3d DCA 2016) (holding that the defendant-wife waived her speedy trial rights prior to the superseding indictment and continuation of the prosecution did not violate her right to a speedy trial); Morris v. State, 715 So.2d 1177, 1178-79 (Fla. 4th DCA 1998) (holding that the defendant’s waiver of speedy trial rights with respect to a misdemeanor battery charge carried over to the amended felony battery information where both charges were based on the same criminal episode).

In State v. Born-Suniaga, 219 So.3d 74 (Fla. 4th DCA 2017), we recently undertook a comprehensive review of Florida Rule of Criminal Procedure 3.191, Nelson, State v. Naveira, 873 So.2d 300 (Fla. 2004), and other cases applying the speedy trial rule. In Born-Suniaga, we noted how the case law governing speedy trial has changed since the rules were amended to provide the state with a recapture period. 219 So.3d at 76. We explained that the speedy trial rule is not self-executing and does not allow for an automatic discharge if the defendant is not tried within the applicable speedy trial period. Id. Instead, once the speedy trial period has expired, a defendant must file a “Notice of Expiration of Speedy Trial,” triggering the recapture period for the state. Id. Here, the defendant never filed a notice of expiration of speedy trial. Instead, he filed only a motion to discharge, which as we recognized in Bom-Suniaga, was not sufficient to invoke his rights under the current speedy trial rule.

Based on the foregoing, we reverse the trial court’s order granting the defendant’s motion for discharge and remand for further proceedings.

Reversed and Remanded for further proceedings.

Taylor, Levine and Conner, JJ., concur.

      . The quoted portions of the trial court’s order contain minor edits and formatting alterations.


text:
    Victor H. CONCHA, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2046
    District Court of Appeal of Florida, Fourth District.
    August 16, 2017
    Vincent James Benincasa of the Benin-casa Law Firm, P.A., Vero Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Victor Concha appeals his sentence for ten counts of possession of child pornography. Concha argues that the trial judge committed fundamental error when he implied that he would not, as a general policy, consider Concha’s mental health needs as a basis for downward departure. We reverse and remand for resentencing before a different judge, because the trial judge’s comments in this case are substantively indistinguishable from those we found to constitute fundamental error in Fraser v. State, 201 So.3d 847 (Fla. 4th DCA 2016).

Reversed and Remanded.

Taylor, Damoorgian and Kuntz, JJ., concur.


author: Cynamon, Abby, Associate Judge.

text:
    Brandon DEPICCIOTTO and Dawn Depicciotto, Appellants, v. NATIONSTAR MORTGAGE LLC, City of Palm Beach and any and all unknown parties claiming by, through, under and against the above-named defendant(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as Spouse, Heirs, Devisees, Grantees, or other Claimants, Appellees.
    No. 4D16-3254
    District Court of Appeal of Florida, Fourth District.
    August 16, 2017

      James A. Bonfiglio, Boynton 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 Nationstar Mortgage, LLC.
   Cynamon, Abby, Associate Judge.

Appellants Brandon and Dawn DePic-ciotto appeal from a final judgment of foreclosure entered in favor of Nationstar Mortgage, LLC (“Nationstar”) in this third foreclosure action.' Appellants raise ' two issues on appeal. First, appellants assert that the trial court erred in entering final judgment in favor of Nationstar as the statute of limitations had expired five years after the February 1, 2009 alleged default date, therefore making Nations-tar’s March 3, 20Í4 foreclosure filing untimely. Second, appellants assert that the trial court erred in entering final judgment in favor of Nationstar because the involuntary dismissal with prejudice of the first foreclosure action filed by Aurora in January 2009 acted as an adjudication on the merits. Appellants assert that the doctrines of res judicata and collateral estop-pel prevent Nationstar from filing, this suit and relitigating any issues. We affirm the trial court on both issues.

First, Nationstar’s foreclosure action was not barred by the statute of limitations where it alleged and proved separate and continuing defaults that fell within the five years preceding the filing of this suit. See Bartram v. U.S. Bank Nat'l Ass’n, 211 So.3d 1009, 1021 (Fla. 2016) (“Once there were future defaults, however, the Bank had the right to file a subsequent foreclosure action—and to seek acceleration of all sums due under the note—so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular- default;”); Kebreau v. Bayview Loan Servicing, LLC, 4D16-2010, 2017 WL 2983999 (Fla. 4th DCA July 12, 2017) ’(holding that “the complaint was not barred by the statute of limitations where it alleged continuing defaults”); Klebanoff v. Bank of New York Mellon, 5D16-1637, 228 So.3d 167, 168, 2017 WL 2818078, at *3 (Fla. 5th DCA June 30, 2017) (“Because the Bank alleged and proved that the subject mortgage was in a continuous state of default, which included defaults within the five-year statute of limitations, its action was not barred, even if the initial default was alleged to have occurred more than five years prior to the filing of the complaint.”); Desylvester v. Bank of New York Mellon, 219 So.3d 1016, 1020 (Fla. 2d DCA 2017) (concluding that “the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations”); Bollettieri Resort Villas Condo. Ass’n, Inc. v. Bank of N.Y. Mellon, 198 So.3d 1140, 1142 (Fla. 2d DCA 2016) (complaint alleging a continuing state of default “was sufficient to establish that foreclosure could be based on any of the missed payments since the initial breach”), rev. granted, No. SC16-1680, 2016 WL 9454216 (Fla. Nov. 2, 2016).

We distinguish cases where the plaintiff in a foreclosure action relied upon a specific default date that was beyond the statute of limitations period. See Collazo v. HSBC Bank USA, N.A., 213 So.3d 1012, 1013 (Fla. 3d DCA 2016) (reversing foreclosure judgment where plaintiff “asserted the same payment default date and basis for acceleration in both the 2008 and 2014 complaints, a date over five years preceding the commencement of the 2014 case in the circuit court”); Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 959 (Fla. 5th DCA 2015) (where trial counsel for the parties stipulated to a default date that was outside of the five-year statute of limitations period, the trial court erred in failing to dismiss the complaint).

Second, we find no merit to appellants’ contention that res judicata and collateral estoppel prevented litigation and adjudication of the issues in this iteration of the case by Nationstar. Neither res judicata nor collateral estoppel is applicable in this case because Nationstar’s 2014 action was predicated upon “subsequent and different defaults,” which presented a “separate and distinct issue.” See Singleton v. Greymar Associates, 882 So.2d 1004, 1007-08 (Fla. 2004) (concluding that “the doctrine of res judicata does not necessarily bar successive foreclosure suits,” and explaining that while “a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent' and different defaults present a separate and distinct issue”); Aronowitz v. Home Diagnostics, Inc., 174 So.3d 1062, 1066 (Fla. 4th DCA 2015) (for collateral estoppel-.to,apply, the specific issue must have been “actually litigated and decided in the former suit”).

For the foregoing reasons, we affirm the final judgment.

Affirmed.

Damoorgian and Kuntz, JJ., and, concur.


author: EISNAUGLE, J.

text:
    C.R., Mother of Y.L. and B.H-R., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D17-1736
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 17, 2017
    Ryan'Thomas Truskoski, of Ryan Thomas Truskoski,P.A,, Orlando, for Appellant.
    Kelley Schaeffer, Appellate Counsel, Children’s Legal Services, Bradenton, for Appellee Department of Children and Families.
    Tasha M. Simmonds and Thomasina Moore, Sanford, for Guardian Ad Litem Program.
   EISNAUGLE, J.

Mother appeals the termination of her parental rights after default, for failing' to appear at trial. Mother raises only one issue, arguing .that the trial court abused its discretion in entering a default consent termination under section 39.801(3)(d), Florida Statutes (2017), and Florida Rule of Juvenile Procedure 8.525(d), as she was unable to attend trial due to circumstances beyond her control. We affirm.

Mother had notice of the adjudicatory hearing at issue here, and when she failed to appear, the trial court contacted her by telephone. At that time, Mother was outside of the hospital due to what she described as panic attacks, but conceded that she had not checked in for treatment. She advised the court that she intended to surrender her rights, and asked if she could come in the following morning to do so, citing a lack of transportation that afternoon.

The trial court, however, declined to continue the hearing to the next day unless Mother was actually admitted to the hospital, and gave her until 5:00 p.m. to either admit herself to the hospital or appear. At that point, Mother repeatedly told the trial court to default her. Undeterred, the court advised that her counsel would call her shortly, and that he would transport her to the hearing. Nevertheless, Mother failed to answer her counsel’s call, and failed to appear by 5:00 p.m. As a result, the trial court entered a consent by default, and terminated her parental rights at a later hearing.

If a parent receives proper notice of an adjudicatory hearing and thereafter fails to appear, “then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.” § 39.801(3)(d), Fla. Stat. (2017). That being said, default is generally disfavored because “[a] natural parent has a ‘fundamental liberty interest’ in his or her offspring that is protected under the due process umbrella.” E.A. v. Dep’t of Child. & Fams., 894 So.2d 1049, 1052 (Fla. 5th DCA 2005) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)); see also A.H. v. Dep’t of Child. & Fams., 22 So.3d 801, 803 (Fla. 5th DCA 2009). The purpose of section 39.801(3)(d) “is not to terminate parental rights on a ‘gotcha’ basis.” E.A., 894 So.2d at 1051. Rather, it is “intended to ensure that the object of the termination petition is not defeated by the neglect of the proceeding by the parent.” Id. Therefore, “courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent’s control.” A.H., 22 So.3d at 803 (quoting R.P. v. Dep’t of Child. & Fams., 835 So.2d 1212, 1214 (Fla. 4th DCA 2003)).

Here, Mother argues that the trial court erred, citing E.A., because she was having medical issues and was unable to attend the trial due to forces beyond her control. Mother’s reliance on E.A., however, is misplaced.

In E.A, this court found that the trial court abused its discretion when it failed to set aside a consent default after the father arrived just twenty-two minutes after the adjudicatory hearing began. 894 So.2d at 1051. Upon arriving at the hearing, the father explained that he had driven to Osceola County from Polk County, that he was delayed on the interstate in heavy traffic caused by an accident, and that he left a voicemail explaining the delay to the court. Id.

In stark contrast to the father in E.A., Mother in this case was not simply late for the hearing. Instead of appearing in court, she was outside of the hospital at the time of the hearing, but notably did not admit herself for treatment of her claimed medical issues. That alone may have been enough to support entry of a default by consent. However, after the trial court extended her time to appear, she declined transportation to the hearing from her location outside of the hospital. Thus, in this case, Mother’s absence was entirely voluntary, and not due to “forces or circumstances beyond [her] control.” A.H., 22 So.3d at 803 (citations omitted). Indeed, although the trial court offered Mother every reasonable opportunity to appear, she chose to be absent, and default by consent was therefore proper.

AFFIRMED.

LAMBERT and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    Joel ROTOLANTE, Appellant, v. DEPARTMENT OF REVENUE O/B/O Denise ROTOLANTE, Appellee.
    Case No. 5D17-715
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    Elizabeth Siano Harris, of Widerman Malek, PL, Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appel-lee.
   ON CONCESSION OF ERROR

PER CURIAM.

Based on the Department of Revenue’s proper concession of error, we reverse the trial court’s “Final Order of Contempt on Report and Recommendation of the Hearing Officer—Granted—Commitment.” We also quash the trial court’s April 3, 2017, Order Modifying Final Order of Contempt on Report and Recommendation, which the trial court lacked jurisdiction to enter during the pendency of this appeal.

REVERSED and REMANDED.

SAWAYA, LAMBERT, and EISNAUGLE, JJ., concur.


text:
    Joshua Adam VILARDI, Appellant, v. Jennifer Fawn VILARDI, Appellee.
    Case No. 5D16-3227
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017

      Kimberly Scarano, of Jeffrey P. Cario, P.A., Brooksville, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Joshua Adam Vilardi (“Former Husband”) appeals the Final Judgment for Dissolution of Marriage and the order denying his motion for rehearing and clarification of the final judgment regarding his marriage to Jennifer Fawn Vilardi (“Former Wife”). Former Husband raises five issues, contending that the trial court erred in: 1) calculating the alimony award; 2) awarding permanent alimony to Former Wife; 3) determining Former Husband’s net income for the purpose of awarding alimony; 4) calculating Former Wife’s child support obligation; and 5) ordering an unequal distribution of marital debt without making statutorily-required factual findings in support of the determination. We affirm as to the first four issues and reverse and remand as to the fifth.

In the final judgment, the trial court assigned a marital debt of $281,782 to Former Husband solely on the basis that Former Wife did not have the ability to pay the debt. However, a gap in spouses’ earning abilities is an insufficient basis for unequal distribution of marital assets and liabilities. David v. David, 58 So.3d 336, 338 (Fla. 5th DCA 2011) (“[Disparate earning abilities cannot, without more, justify unequal distribution of marital assets and liabilities.”); Dease v. Dease, 688 So.2d 454, 455 (Fla. 5th DCA 1997) (‘While disparate earning abilities may justify alimony (and the court awarded alimony), it does not, at least without more explanation, justify an unequal distribution of marital assets.”); Hallman v. Hallman, 575 So.2d 738, 739 (Fla. 5th DCA 1991) (“[T]he husband’s superior earning ability ... is not a factor for purposes of equitable distribution of assets.”).

In determining equitable distribution of marital assets and liabilities, a trial court “must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.” § 61.075(1), Fla. Stat. (2016). To justify unequal distribution, the trial court must include in the final judgment findings of fact supporting its determination. § 61.075(3), Fla. Stat, (2016). In this case, the trial court failed to include in the final judgment factual findings advising the parties of its rationale for the unequal allocation of marital liabilities or its consideration of the relevant factors other than Former Wife’s inability to pay the marital debt. Accordingly, we reverse and remand for the trial court to make the necessary findings or to reconsider the allocation of marital debt, which may also require reconsideration of the award of alimony and attorney’s fees.

AFFIRMED in part; REVERSED in part; REMANDED. ' - ■

SAWAYA, EVANDER and EISNAUGLE, JJ., concur.


text:
    Gene RAMIREZ, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    CASE NO. 1D17-0626
    District Court of Appeal of Florida, First District.
    Opinion filed August 21, 2017.
    Gene Ramirez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Lateasha L. Powell, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Respondent’s motion for clarification filed on May 3/2017, is treated as a motion to dismiss and is granted. This proceeding is treated as a premature appeal and is dismissed. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005) (concluding “proper remedy is to file a motion in the circuit court seeking [removal of lien and restoration of funds collected], secure a ruling, and if necessary raise the issue when appellate review is sought of any final order in the proceedings below”). .

WINOKUR, JAY, and M.K. THOMAS, JJ., CONCUR.


text:
    RUBY TUESDAY, INC. and Catherine Anderson, Petitioners, v. Karen METALONIS, Respondent.
    Case No. 5D17-1158
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 25, 2017

      Michael R. D’Lugo, of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for Petitioners.
    Kurt Zaner, of Zaner Harden Law, LLP, Denver, CO, and Charles T. Douglas, of Douglas & Hedstrom, P.A., Palatka, for Respondent.
   PER CURIAM.

Petitioners challenge an order compelling the production of an incident report prepared after Respondent allegedly was injured when a chair collapsed at a Ruby Tuesday restaurant. Although the trial court’s order compelling production of the incident report does not provide the court’s reasoning, Respondent argued below that the report was not made in anticipation of litigation and that she had a demonstrated need for the report nevertheless.

The determination of whether an incident report was prepared in anticipation of litigation turns on whether “the document was prepared in response to some event which foreseeably could be made the basis of a claim in the future.” Marshalls of MA, Inc. v. Minsal, 932 So.2d 444, 446-47 (Fla. 3d DCA 2006). Although the subjective intent of the reporter in making the report might be relevant to this determination, it is by no means dispositive because an objective standard applies. Here, the reporter testified that she made the report in accordance with company policy to report incidents of injury to patrons. The fact that the reporter did not personally foresee the potential claim and did not know the purpose for the company policy did not negate a finding that the report was work product. It was clear that the alleged injury was caused by an object in Petitioners’ control and there was some evidence to suggest that Petitioners had prior knowledge of the defective condition of the chair. Under the circumstances presented here, it was foreseeable that the event might form the basis for a claim. Accordingly, the incident report was protected work product.

As for Respondent’s argument regarding need, we conclude without elaboration that the present record demonstrates that Respondent did not meet her burden on this issue.

ORDER QUASHED.

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


text:
    Timothy BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-190
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 25, 2017
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Timothy Brown appeals the final order revoking his community control and sentencing him to serve 118.35 months in the Department of Corrections. Following careful consideration, we affirm the revocation and sentence. However, we remand for entry of a supplemental order.

Appellant was assessed 48 points on his scoresheet for prior violations of community control and probation as a violent felony offender of special concern. “Section 948.06(8)(e)1, Florida Statutes, requires that a trial court make written findings regarding whether a violent felony offender of special concern poses a danger to the community.” Glenn v. State, 219 So.3d 1010, 1010 (Fla. 1st DCA 2017). At the revocation hearing, Appellant’s status as a violent felony offender of special concern was never mentioned. The trial court did not orally find that Appellant was.a danger to the community and did not make any written findings. However, the court orally referenced reasons that'would support such a finding under the statute.

[Wjhere a court orally pronounces a reason, consistent with one or more of the factors listed under section 948.06(8)(e)1, for its finding that the defendant, as a violent felony offender of special concern, poses a danger to the community, but fails to provide written reasons for its finding, the proper remedy is to affirm the revocation of the defendant’s probation, but, remand for entry of a -written order conforming to the court’s oral pronouncement.

Arnone v. State, 204 So.3d 556, 557 (Fla. 4th DCA 2016) (citing Martin v. State, 87 So.3d 813, 813 (Fla. 2d DCA 2012); Bell v. State, 150 So.3d 1214, 1214 (Fla. 5th DCA 2014)). We further instruct the trial cburt to specifically identify in its supplemental, corrected order which condition of community control Appellant willfully violated. Accordingly, we remand the case so that the trial court can file an appropriate supplemental, corrected written order.

AFFIRMED ' AND REMANDED WITH INSTRUCTIONS.'

EVANDER, BERGER, and EDWARDS, JJ., concur.


text:
    Zeth TRAWICK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2367
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 25, 2017

      Tiffany Gatesh Fearing, of Suncoast Legal Group, P.L., Spring Hill, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Zeth Trawick (“Appellant”) appeals the denial of two grounds of his twelve-ground motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of the first challenged ground without discussion. However, we reverse the summary denial of the second ground and remand for an evidentiary hearing.

Throughout his trial for second-degree murder, Appellant maintained that. he killed the victim in self-defense. Nonetheless, the jury found Appellant guilty, and the trial court sentenced him to life in prison. Appellant subsequently filed a pro se motion for postconviction relief, alleging that his trial counsel provided ineffective assistance by failing to obtain exculpatory photographs and proceeding to trial without them. Specifically, he argued photographs of his hands and arms, taken by the DeLand Police Department, would have depicted a fresh cut, purportedly made by the victim’s knife during the altercation that resulted in the victim’s death. Appellant argued these photographs would have demonstrated that he had defensive wounds from attempting to deflect an attack. The trial court summarily denied this claim.

The record on appeal contains evidence that trial counsel otherwise explored Appellant’s self-defense theory and cross-examined the medical examiner concerning the injuries to both the victim and Appellant, However, this evidence does not conclusively refute Appellant’s claim that the introduction of the photographs would have bolstered his self-defense argument, especially in response to the State’s introduction of photographs of the victim’s defensive injuries and testimony from two witnesses denying the existence of Appellant’s injury. Thus, we reverse the trial court’s summary denial of this ground and remand for an evidentiary hearing on the matter. See Saunders v. State, 186 So.3d 56, 57 (Fla. 5th DCA 2016) (“Because claim 2 is not conclusively refuted by the attached record, we remand for an evidentia-ry hearing.”),

AFFIRMED in Part; REVERSED in Part; REMANDED with Instructions.

ORFINGER, WALLIS and EISNAUGLE, JJ., concur.

      . We per curiam affirmed Appellant’s direct appeal of the judgment and sentence. Trawick v. State, 46 So.3d 65 (Fla. 5th DCA 2010).


text:
    Keyondrae SMITH, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1869
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 25, 2017
    Keyondrae Smith, Punta Gorda, pro se.

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

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the March 29, 2016, judgments and sentences in Case No. 15-CF-002689-A-X, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, EVANDER and WALLIS, JJ., concur.


author: LaROSE, Chief Judge.

text:
    Michael Bryan WAMSLEY, Appellant, v. Annmarie WAMSLEY, n/k/a Annmarie Hanecki, Appellee.
    Case No. 2D16-2160
    District Court of Appeal of Florida, Second District.
    Opinion filed August 25, 2017

      Simone Lennon of Simone Lennon, P.A., Clearwater, for Appellant.
    Brett R. Rahall of Brett Rahall, P.A., Tampa, for Appellee.
   LaROSE, Chief Judge.

We review an order entered in postdis-solution proceedings between Michael Bryan Wamsley and Annmarie Hanecki. Mr. Wamsley wants us to reverse the trial court’s March 31, 2016, “Order vacating January 7, 2016, order confirming January 6, 2016 Report of General Magistrate.” Because he seeks review of a nonfinal, nonappealable order, we dismiss this appeal for lack of jurisdiction.

Background

Between October 2006 and January 2006, the trial court entered separate orders dissolving the parties’ marriage, arranging timesharing and parental responsibilities, and establishing Mr. Wamsley’s alimony and child support obligations. Since then, Mr. Wamsley repeatedly has sought modification • of his financial obligations. Indeed, he has filed no less than five modification petitions. Yet, Mr. Wams-ley has not pursued relief diligently. Seemingly, his modus operandi is to file a modification petition and then abandon it.

The trial court’s March 31, 2016, order recounts the procedural history below. A few relevant facts merit mention. Mr. Wamsley filed a modification petition in August 2010, but never scheduled a hearing. Consequently, the petition languished. Several years later, the Florida Department of Revenue sued to collect Mr. Wamsley’s child support arrears. In September 2014, the trial court established his arrearage at over $105,000.

Spurred to action by the imposition of this significant financial obligation, Mr. Wamsley filed a new modification petition in September 2014. This time, however, he was tenacious. Mr. Wamsley sought a downward modification of his child support obligation due to an alleged material and substantial change in circumstances. In pursuing relief under his September 2014 petition, he argued that the operative pleading was the long-dormant August 2010 petition. The trial court, after conducting a hearing and receiving argument from the parties, disagreed. In the March 31, 2016, order, the trial court reasoned that Mr. Wamsley abandoned the August 2010 petition when he filed the September 2014 petition. Consistent with this rationale, the order succinctly stated that the September 2014 petition “is the only remaining operative pleading ....” To date, the trial court has rendered no decision on the merits of any modification petition filed by Mr. Wamsley.

Analysis

The crux of Mr. Wamsley’s appeal is this: which modification petition is operative? He urges us to adopt the August 2010 petition. Ms. Hanecki, in contrast, argues in support of -the trial court’s March 31,2016, order.

We need not enter the fray. The March 31, 2016,’ order is nonfinal and nonap-pealable. That order did not reach the merits of Mr. Wamsley’s efforts to modify his support obligations. It merely determined the operative petition upon which Mr. Wamsley could proceed.

Florida Rule of Appellate Procedure 9.130 lists the grounds upon which a litigant may appeal a nonfinal order. As to family law matters, the rule allows for appeals of nonfinal orders that determine “the right to immediate monetary relief’; “the rights or obligations of a party regarding child custody or timesharing under a parenting plan”; or “that a marital settlement agreement is invalid in its entirety.” Fla. R. App. P. 9.130(a)(3)(C)(iii)(a)-(c).

“[T]he list of appealable nonfinal orders in [rule 9.130] is intended to be exhaustive.” Hitt v. Homes & Land Brokers, Inc., 993 So.2d 1162, 1165 (Fla. 2d DCA 2008). The Florida Supreme Court agrees: “The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment.” Travelers Ins. Co. v. Bruns, 443 So.2d 959, 961 (Fla. 1984).

The March 31, 2016, order deals with none of the grounds listed in .rule 9.130(a)(3)(C)(iii). Rather, the trial court simply found that Mr. Wamsley’s right to modification would be determined at a future hearing in accordance with the arguments raised in his September 2014 petition. The order left for another day a resolution • of the merits. Cf. Areizaga v. Spicer, 841 So.2d 494, 495 (Fla. 2d DCA 2003) (treating the order appealed as appealable under rule 9.130(a)(3)(C)(iii) because “the order sets a specified amount of money that Mr. Areizaga must pay”); Seigler v. Bell, 148 So.3d 473, 479 (Fla. 5th DCA 2014) (“[T]he order granting reconsideration is not an, appealable nonfinal order because it does not determine the right to child custody, but merely indicates that more evidence will be considered before the trial court determines Mother’s motion to revoke the. prior temporary custody order.”). . '

We reject Mr. Wamsley’s argument that the March 31, 2016, order concerned either his right to immediate monetary relief or timesharing issues. He reasons that .because the order decided which of his petitions is the operative pleading, the trial court necessarily foreclosed the monetary and timesharing relief requested in earlier petitions. Mr. Wamsley invites us to erase the limits on appealable nonfinal orders established in rule 9.130. We are loathe to do so. See Jenne v. Maranto, 825 So.2d 409, 413 (Fla. 4th DCA 2002) (“The enumerated categories of permissible honfinal review stated in rule 9.130 must be limited to their plain meaning. The rule does not authorize judges to enlarge its provisions to permit review of nonfinal orders not specified within its provisions.” (citations omitted)). If and when the trial court rules on the merits of the operative modification petition, Mr. Wamsley may argue on appeal thát the trial court proceeded under the incorrect petition.

We also note that in responding to our order to show cause why the appeal should not be dismissed, Mr. Wamsley argues that the “summary denial, of [his] petition” offends his “due process rights to notice and an opportunity to be heard.” He relies on several cases purportedly demonstrating that “[d]ue process principles apply to modification proceedings including child custody and visitation matters.”

We do not quibble with the proposition of law he advances. Yet, we cannot agree that his due process concerns necessarily transform an otherwise nonfinal, nonap-pealable order into something we can address now. Cf. Damsky v. Univ. of Miami, 152 So.3d 789, 791 (Fla. 3d DCA 2014) (“Interlocutory orders that are not appeal-able as a matter of right, however, may be reviewed by a petition for a writ of certio-rari. But a petition for writ of certiorari is not simply an alternative method to obtain an interlocutory appeal when the rules do not provide one.”).

Additionally, the due process cases upon which Mr. Wamsley relies involve dispositions on the merits. See, e.g., Murphy v. Ridgard, 757 So.2d 607, 608 (Fla. 5th DCA 2000) (“The father is correct that his due process rights to notice and an opportunity to be heard were abridged by the summary denial of his [second amended supplemental petition for modification of final judgment seeking additional child visitation].”). We find no such abuse of process in this case. Effectively, Mr. Wamsley seeks an interlocutory appeal from an order that does not adjudicate the merits of his modification petition. This we cannot abide.

Finally, we observe that “a party may seek certiorari review of a nonfinal order not otherwise appealable under rule 9.130(a)(3).” Miami-Dade County v. Pozos, 42 Fla. L. Weekly D418, D418 n.1, — So.3d —, 2017 WL 621233 (Fla. 3d DCA Feb. 15, 2017) (citing Fla. R. App. P. 9.100(a); 9.130(a)(1)). “Our standard of review in a certiorari proceeding requires this court to determine whether the trial court’s order is: ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.’” Kelly v. Philip Morris USA Inc., 69 So.3d 1078, 1079 (Fla. 2d DCA 2011) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995)). Even if we treated Mr. Wamsley’s appeal as a petition for certiorari, he cannot meet this demanding standard. See, e.g., Laycock v. TMS Logistics, Inc., 209 So.3d 627, 631 (Fla. 1st DCA 2017) (“[T]he Florida Supreme Court established an exacting standard for certiorari review, always requiring irreparable harm to the petitioner.”); Town of Longboat Key v. Islandside Prop. Owners Coal., LLC, 95 So.3d 1037, 1039 (Fla. 2d DCA 2012) (denying certiorari petition because “[t]he Town ha[d] not met this exacting standard”).

Dismissed.

NORTHCUTT and KELLY, JJ., Concur.


text:
    TUBBY’S CUSTOMS, INC., a Florida Corporation; and Lenward Martin, Appellants, v. Charles EULER, Appellee.
    Case No. 2D16-3878
    District Court of Appeal of Florida, Second District.
    Opinion filed August 30, 2017.

      Lee M. Pearlman of Pearlman & Clark, P.A., St. Petersburg, for Appellants.
    Donald C. Anderson, Jr., of The Law Offices of Donald C. Anderson, St. Peters-burg, for Appellee.
   LaROSE, Chief Judge.

Tubby’s Customs, Inc., (“Tubby’s”) and its owner, Lenward Martin, appeal a final judgment for breach of contract entered in favor of Charles Euler. We reverse, in part, because the awarded damages exceed those requested and proved at trial. We affirm the final judgment in all other respects without further discussion.

Factual Background

Mr. Euler contracted with Tubby’s to restore his 1956 Ford -coupe to “run & drive” condition for $15,000. Mr. Euler’s friend, Repo Robbie, delivered the car to Tubby’s garage. Mr. Euler subsequently made three payments of $5000 each to Tubby’s. Later, when indisposed by health issues, Mr. Euler gave Repo Robbie an additional $3500 to pay Tubby’s to finish the work. Unfortunately, after Mr. Euler paid Tubby’s $18,500 over the course of more than two years, Tubby’s never completed the restoration. Mr. Euler had his ear towed back to his house.

Mr. Euler sued Tubby’s. He alleged that Tubby’s breached the restoration contract by failing to complete the work in a reasonable time after Mr. Euler “paid a total of $18,500 to Tubby’s as and for a final price.” At trial, Mr. Euler testified that he budgeted $15,000 to get the car running and driving, $3500 for the interior, and $1500 for tires and wheels. Mr. Euler conceded that he never intended that Tubby’s would do the interior. The “budget” he testified about was his personal budget, not part of his contract with Tubby’s. Mr. Euler testified that when Tubby’s was unable to get the car running and driving for $15,000, he paid Tubby’s an additional $3500 to “get it running.”

Mr. Euler sought damages for the reasonable cost of completion ($8829.30), a rebate of the difference between the amount paid and the reasonable value of the repairs ($9250), and a towing fee ($44). Without objection, Mr. Euler submitted an estimate from Mahoney Auto Repair into evidence, reflecting that the car required $8829.30 in additional mechanical repairs. Mr. Euler’s expert testified that Tubby’s had completed only 50% of the work for which Mr. Euler had paid.

The trial court entered a final judgment finding that Tubby’s breached the contract. It awarded Mr. Euler $12,329.30 in damages, plus costs of $2899,65, for a total of $15,228.95. The trial court did not elaborate on its damage calculation. Seemingly, the award is a combination of $8829.30 for the reasonable cost of completion and an additional $3500.

Analysis

Tubby’s argues that the awarded damages exceeded the “cap” on damages, and erroneously combined inconsistent theories of recovery. Mr. Euler counters that the trial court properly awarded damages based on a benefit-of-the-bargain theory. He argues that the judgment consisted of the $8829.30 required to complete the mechanical repairs and the $3500 to complete the car’s interior, which he maintains was necessary to make the car drivable.

We review “[a] trial court’s determination as to the method of calculating damages ... de novo.” HCA Health Servs. of Fla., Inc. v. CyberKnife Ctr. of Treasure Coast, LLC, 204 So.3d 469, 471 (Fla. 4th DCA 2016) (citing Katz Deli of Aventura, Inc. v. Waterways Plaza, LLC, 183 So.3d 374, 380 (Fla. 3d DCA 2013)). “[TJhere must be some reasonable basis in the evidence to support the amount [of damages] awarded. Furthermore, it is incumbent upon the party seeking damages to present evidence to justify an award of damages in a definite amount.” Camper Corral, Inc. v. Perantoni, 801 So.2d 990, 991 (Fla. 2d DCA 2001) (alterations in original) (quoting Smith v. Austin Dev. Co., 538 So.2d 128, 129 (Fla. 2d DCA 1989)).

When there is a total breach of contract, the nonbreaching party may affirm the contract, “insist upon the benefit of his bargain, and seek the damages that would place him in the position he would have been in had the contract been completely performed.” Citizens Prop. Ins. Corp. v. Amat, 198 So.3d 730, 734 (Fla. 2d DCA 2016) (quoting Rector v. Larson’s Marine, Inc. 479 So.2d 783, 784 (Fla. 2d DCA 1985)). Under this benefit-of-the-bargain theory, “the proper measure of damages would be either the reasonable cost of completion, or the difference between the value the [repair] would have had if completed and the value of the [repair] that has been thus far performed.” Rector, 479 So.2d at 785.

Mr. Euler properly pleaded these alternative measures of damages. The final judgment suggests that the trial court chose to award the reasonable cost of completion. See Liddle v. A.F. Dozer, Inc., 777 So.2d 421, 422 (Fla. 4th DCA 2000) (providing that the trial court can make “[a]n election between mutually exclusive remedies ... at any time prior to the entry of judgment”).

But Mr. Euler’s evidence established that the reasonable cost of completion was only $8829.30. Mr. Euler never requested $12,329.30 as the reasonable cost of completion,. nor did he request $3500 to complete the car’s interior. Further, Mr. Euler testified that his contract with Tubby’s did not require Tubby’s' to complete the car’s interior. Consequently, Mr. Euler’s damages should have been limited to $8829.30 plus costs. See Taylor v. Lee, 884 So.2d 222, 224 (Fla. 2d DCA 2004) (holding that the trial .court erred in awarding an amount of damages that included costs and expenses outside the scope of the breached contract).

Because the damage award exceeded the amount Mr. Euler requested and proved at trial, we reverse the portion of the final judgment awarding Mr. Euler $12,329.30 and .remand for the trial court to enter a judgment consistent with this opinion.

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

CRENSHAW and ROTHSTEIN-YOUAKIM, JJ, Concur.

      . The trial court entered the final judgment only against Tubby’s.


text:
    Micah SOLOMON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3162
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Micah Solomon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Raytaurus E. ARMSTRONG, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2704
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Raytaurus E. Armstrong, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Luther Arthur HORN, III, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4227
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Luther Arthur Horn, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Robert Lee, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

ROWE, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Adam MEREDITH, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3403
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017.
    Adam Meredith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Jordan D. WHITE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3351
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Jordan D. White, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Joseph SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3160
    District Court of Appeal of Florida, First District.
    Opinion filed August 31, 2017
    Joseph Simmons, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R. App. P. 9.141(c)(5)(A).

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


author: EVANDER, J.

text:
    J.P., Appellant, v. J.N., Appellee.
    Case No. 5D16-3789
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017

      . Angelique E. Kelley, of The Kelley Firm, LLC, Saint Augustine, and Lori D. Loftis, Assistant Regional Counsel, The Office of Criminal Conflict and Civil Regional Counsel, Casselberry, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

J.P. appeals a final order for involuntary substance abuse treatment entered pursuant to section 397.697(1), Florida Statutes (2016). He argues that the petition for involuntary treatment was not filed in the proper county and, accordingly, the trial court lacked jurisdiction to enter the order. Although J.P. is no longer committed under the order on appeal, we choose to address the issue raised because the issue is likely to recur, yet otherwise evade review. We conclude that although the petition was filed in the wrong county, it was not void for lack of jurisdiction.

In September 2016, J.P.’s mother filed a Petition and Affidavit Seeking Involuntary Substance Abuse Assessment and Stabilization of J.P. in Putnam County. The circuit court in Putnam County entered an ex parte order for involuntary assessment and 'stabilization, directing the sheriff to take J.P. into custody and deliver him to “Stewart Marchman Act Behavioral Healthcare at 330 Kay Larkin Drive, Pa-latka, FL 32177, or the nearest available licensed service provider” for involuntary assessment and stabilization for a period of up to five days. (Emphasis added).- Four days later, J.P.’s mother filed a Petition for Involuntary Treatment in Putnam County based.upon the assessment recommendation of involuntary inpatient, treatment. At the time J.P.’s mother filed the petition for involuntary treatment, J.P. was located in a detoxification facility in Volusia County.

At the subsequent hearing, J.P., through appointed counsel, moved to dismiss the petition for lack of jurisdiction. He argued that section 397.681, Florida Statutes, requires a petition for treatment to be filed in the county where the person is located. Because J.P.’s mother filed the petition for involuntary treatment in Putnam County rather than Volusia County, it was J.P.’s position that the court was without jurisdiction to consider the petition.

A facility representative explained that J.P. was in Volusia County at the time the petition for treatment was filed because Volusia County had the closest licensed addictions receiving facility qualified to perform an involuntary substance abuse assessment. He later clarified that an assessment , could have been performed in Putnam County, but J.P. needed detoxification,.so he was sent to the nearest addictions receiving facility. J.P.’s mother argued that J.P. resided in, Putnam County and was located.in Putnam County at the time she filed the petition for assessment. Notably, J.P. only made a lack of jurisdiction argument- to the trial court. He did not argue the case should be transferred or dismissed on venue grounds. As a result; the defense of-improper venue .was waived. Fla. R. Civ. P. 1.140(4)(b).

The trial court denied J.P.’s" motion to dismiss and; based on the evidence presented,' entered an order for involuntary-treatment for substance abuse “for a period not to exceed 60 days!” On appeal, J.P. only challenges the trial court’s jurisdiction to enter the order.

Based on the plain language of section 397.681(1), we agree that the petition for involuntary treatment should have been filed in Volusia County, where J.P. was “located.” That section states, in pertinent part:

(1) Jurisdiction.—The courts have jurisdiction of involuntary assessment and stabilization petitions and involuntary treatment petitions for substance abuse impaired persons, and such petitions must be filed with the clerk of the court in the county where the person is located.

§ 397.681(1), Fla. Stat. (2016). However, the filing ' of the petition' in the wrong county did not divest the circuit court in Putnam, County of jurisdiction.

Venue and jurisdiction are not synonymous. Venue concerns thé privilege of being accountable to a court in a particular location, while jurisdiction is “the power to act” or the authority to adjudicate the subject matter. Bush, 945 So.2d at 1211. All Florida circuit court judges have jurisdiction to consider involuntary substance abuse treatment petitions. See §§ 26.012(2)(b), 397.681(1), Fla. Stat. (2016). Thus, although the proper venue for the proceeding below was Volusia County, the.order entered by the circuit court in Putnam County'was not void for lack of jurisdiction. See In re Guardianship of Mickler, 163 So.2d 257, 260 (Fla. 1964) (“Since the county judges of both counties had the power to act, ... and, in our view, jurisdiction should be considered apart from venue, we think that in the last analysis the question here is whether or not there was a waivér of the privilege of having the guardianship adjudicated in Hernando County.”); Bambrick v. Bambrick, 165 So.2d 449, 455 (Fla. 2d DCA 1964) (concluding that county court judge in Pinellas County (where incompetent was found) had jurisdiction to appoint guardian for incompetent, even though under applicable statute, proper venue for proceeding was in Lake County (where.incompetent resided); Pinellas County judge’s order was not void)'.

AFFIRMED.

TORPY and EDWARDS, JJ., concur.

      . Generally, a case that has been rendered moot will be dismissed. Godwin v. State, 593 So.2d 211, 212 (Fla. 1992). A case is rendered moot when it no longer presents an actual controversy or when the issues have ceased to exist because they have been "so fully resolved that a judicial determination can have no actual effect.” Id. (citing DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943)). However, Florida courts have recognized at least three instances in which a moot case will not be dismissed: (1) when the issues are of great public importance; (2) when the issues are likely to recur; and (3) when collateral legal consequences flow from the issues to be resolved that may affect the rights of a party. Mazer v. Orange Cty., 811 So.2d 857, 859 (Fla. 5th DCA 2002).

      . If J.P. had raised improper venue as a defense, the appropriate remedy would have been for the trial court to have transferred the case to Volusia County, rather than enter an order of dismissal. Bush v. State, 945 So.2d 1207, 1215 (Fla. 2006).


text:
    Issac BURT, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-724
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017
    Deana K. Marshall, of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Issac Burt (“Appellant”) appeals the trial court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief alleging ineffective assistance of counsel. We find that the attached records conclusively refute ground one of Appellant’s motion. However, we do not find that the attached records conclusively refute the remaining grounds, in which Appellant argued that defense counsel provided ineffective assistance by failing to object to repeated improper statements during the State’s closing argument (ground two) and by failing to adequately cross-examine the State’s expert witness (ground .three). Therefore, we reverse and remand for the trial court to either attach records conclusively refuting grounds two and three or to hold an evidentiary hearing on these grounds. See, e.g., Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.”).

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

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


text:
    Corey A. MINIX, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2556
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017
    Rachael E. Bushey, of O’Brien Hatfield, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Corey Minix (“Appellant”) filed two motions for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court entered an order denying the first motion on the merits. Appellant filed a motion for rehearing directed to that order, and the trial court granted the motion. However, it appears that a rehearing of the first motion has not occurred and no order has been entered disposing of that motion. Appellant filed a second motion for postconviction relief, which was summarily denied by the trial court. Appellant has appealed that order to this court. Because rehearing was granted regarding the first motion and an order has not been rendered dispensing with that motion, Appellant still has an outstanding rule 3.850 motion that needs to be ruled on by the trial court.

Accordingly, we dismiss this appeal and remand this case to the trial court to resolve the first motion for postconviction relief and issue an order finally disposing of all of Appellant’s claims.

DISMISSED and REMANDED with instructions.

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


text:
    Curtis Antonio WAY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3904
    District Court of Appeal of Florida, First District.
    Opinion filed September 1, 2017
    Curtis Antonio Way, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WINOKUR, JAY, and M.K. THOMAS, JJ., CONCUR.


text:
    Kevin Lee ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5527
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.
    Kevin Elliot, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Kevin Lee Elliott challenges the trial court’s order denying his motion for post-conviction relief, which failed to attach records that conclusively demonstrate no entitlement to relief. In addition, he challenges the trial court’s failure to conduct an evi-dentiary hearing or allow amendment of his pleadings. We reverse to require that the trial court either attach portions of the record that conclusively refute Elliott’s claims in counts one, four, seven, and eight of his complaint, or absent such records, hold an evidentiary hearing. See Washington v. State, 10 So.3d 1126, 1127 (Fla. 1st DCA 2009) (Absent attachment of portions of the record that conclusively refute claims, a “summary denial is improper, and an evidentiary hearing is required.”). As to other counts, Elliott should be given the opportunity to amend his claim. See Spera v. State, 971 So.2d 754, 762 (Fla. 2007) (“[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.”).

REVERSED AND REMANDED.

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.


text:
    Donald L. GREEN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1765
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017
    Donald L. Green, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying defendant’s motion for postconviction relief, rendered on April 14, 2016, in Duval County Circuit Court case number 16-2010-CF-004116-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

LEWIS, RAY, and JAY, JJ., CONCUR.


text:
    Lavelle Antonio COPELAND, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4388
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.
    Lavelle Antonio Copeland, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kathryn Lane, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850.

We find claims 2,. 4, 7, and 8 were facially- insufficient because where a defendant such as appellant entered a guilty plea, “in order to satisfy the ‘prejudice’ requirement [of Strickland], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” State v. Dickey, 928 So.2d 1193, 1197 (Fla. 2006). Ground 2 was also facially insufficient because it alleged trial counsel was ineffective for failing to file a "motion to suppress” in order to argue a lack of sufficient evidence. The postconviction court correctly found the claim was facially insufficient because a motion to suppress would not have been the correct vehicle to challenge the sufficiency of the evidence. Ground 8 was also facially insufficient because appellant' failed to sufficiently allege facts demonstrating prejudice. See Nelson v. State, 977 So.2d 710, 712 (Fla. 1st DCA 2008).

However, because these deficiencies could be cured by a good faith amendment, appellant was entitled to amend this claim pursuant to Spera v. State, 971 So.2d 754, 759 (Fla. 2007). Thus, we reverse the denial of ground 2, 4, 7, and 8, and we remand for the trial court to grant appellant leave to amend those grounds within a reasonable period of time. See- Griggs v. State, 995 So.2d 994, 995 (Fla. 1st.DCA 2008).

We affirm the denial of grounds 1, 3, 5, 6, 9, 10, and 11 because these grounds were facially insufficient and cannot be amended pursuant to Spera.

' AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

WOLF, RAY, and BILBREY, JJ., CONCUR.


text:
    Roderick CLARK, Petitioner, v. NICHOLS M. N. P., Respondent.
    CASE NO. 1D17-1682
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017
    Roderick Clark, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner has not demonstrated that the trial court has failed to timely consider and rule upon any motion after having that 'matter called up for hearing and disposition. Petitioner has therefore failed to demonstrate an entitlement to mandamus relief. See Moore v. Corr. Med. Servs., 817 So.2d 963, 964 (Fla. 1st DCA 2002) (“Absent a showing that the trial court has failed to take action on some pending matter he has noticed for hearing, [the petitioner] has failed to establish an entitlement to mandamus relief.”); Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000). We DENY the petition accordingly.

LEWIS, RAY, and JAY, JJ., CONCUR.


text:
    Bobby BULLOCK, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0478
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.
    Bobby Bullock, pro se, Petitioner. ■
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the judgment and sentence in Franklin County Circuit Court case number 14000123CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, RAY, and JAY, JJ., CONCUR.


text:
    STATE of Florida, Petitioner, v. Adrian CUMMINS, Respondent.
    Case No. 5D17-2077
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Aramis D. Ayala, State Attorney, Orlando, and Cherish Renee Adams, Assistant State Attorney, Orlando, for Petitioner.
    Robert Wesley, Public Defender, and Sarah Moore, Assistant Public Defender, Orlando, for Respondent.
   PER CURIAM.

The State of Florida petitions for writ of certiorari to review the trial court’s discovery order requiring it to disclose to the defense which,, out of .a number of recorded jail calls between Adrian Cummins (Respondent) and others, would be introduced at trial. Although we conclude the trial court’s order departs from the essential requirements of the. law, see State v. Williams, 678 So.2d 1356, 1358 (Fla. 3d DCA 1996) (holding that State did not have to tell defendants which documents, out of 285 boxes of documents, it intended on using at trial because to do so would violate work-product doctrine), the State has failed to show irreparable harm. See State v. Milbry, 219 So.3d 160, 161 (Fla. 5th DCA 2017) (explaining irreparable harm is jurisdictional and must be found before court may consider whether departure from the essential requirements of the law occurred). Specifically, the State has failed to show that its ability to proper cute Respondent would be significantly impaired by the trial court’s ruling. The trial court indicated that additional calls could be admissible upon a showing of good cause by the State, and the State has not argued that it would be unable to show good- causé. Accordingly, we dismiss the petition.

DISMISSED.

PALMER, EVANDER and BERGER, JJ., concur.