author: EVANDER, J.

text:
    Jeffrey S. BROWN, Appellant, v. Julia BROWN, Appellee.
    Case No. 5D16-2294
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017
    Felecia Leann Walker, of Walker Law, LLC, St. Augustine, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

Jeffrey Brown (“the former husband”) appeals a final judgment of dissolution of marriage, challenging the amounts of child support and durational alimony that he was ordered to pay Julia Brown (“the former wife”). We are unable to conduct meaningful appellate review because the final judgment contains material inconsistencies and fails to include necessary findings of fact. Accordingly, we reverse and remand for the trial court to make additional factual findings, to remedy the material inconsistencies contained in the final judgment, and then, to' the extent required, to reconsider the child support and durational alimony awards.

The parties were married in October 1999. There were three minor children born of the marriage. The former husband filed a petition for dissolution of marriage in April 2015, and the former wife responded a month later with her answer and counterpetition. The parties resolved the issues of shared parental responsibility and timesharing of the minor children pri- or to trial. Because of a pending bankruptcy, the parties stipulated that equitable distribution issues would be resolved at a later date.

Approximately two months after trial, the trial court entered an eight and one-half page final judgment. The final judgment included findings as to each party’s gross income, but failed to set forth findings as to either party’s net income. See, e.g., Gilliard v. Gilliard, 162 So.3d 1147, 1154 (Fla. 5th DCA 2015) (“A party’s ability to pay alimony should be based on the party’s net income; not gross income.”). Additionally, the final judgment contained inconsistent provisions as to the amount of durational alimony to be paid by the former husband. In one paragraph, the former husband was ordered to pay durational alimony of $1200 per month beginning April 2016 and terminating on August 1, 2021. In another paragraph, the former husband’s durational alimony was determined to be $1200 per month until June 2018. At that time, the durational alimony would be reduced to $800 per month, ceasing on August 1, 2021. Elsewhere, the final judgment recited that the reduced amount of durational alimony as of June 2018, should be $850 per month, rather than $800 per month.

On appeal, the former husband contends that his durational alimony obligation is excessive. We are unable to adequately address this argument because of the lack of findings as to the parties’ respective net incomes, and because of our uncertainty as to the former husband’s actual alimony obligation for the period of time from June 1, 2018 to August 1, 2021. Accordingly, on remand, the trial court is directed to make factual findings as to the parties’ respective net incomes and to remedy the aforementioned inconsistencies in the final judgment. See Mathieu v. Mathieu, 877 So.2d 740, 741 n.1 (Fla. 5th DCA 2004) (“Since the principal reason for findings of fact in these cases is to allow for meaningful appellate review in this very important area of the law, if the court determines on its own that its review is hampered, we may, at our discretion, send the case back for findings.”); see also Matajek v. Skowronska, 927 So.2d 981, 987-88 (Fla. 5th DCA 2006) (holding that notwithstanding appellant’s failure to raise lack of factual findings in motion for rehearing, remand for additional factual findings on issue of permanent periodic alimony was appropriate, where appellate court determined on its own that meaningful appellate review was hampered by absence of required findings).

The final judgment further required the former husband to pay child support in the amount of $645.86 per month. Again, meaningful appellate review is precluded by the absence of necessary factual findings. No child support guidelines worksheet was attached to the final judgment or made part of the i-ecord, and the trial court made no findings as to the parties’ respective net incomes or the cost of health insurance for the minor children. See § 61.80(3) — (6), Fla. Stat. (2016) (using “net income” to determine child support guideline amount).

Section 61.30, Florida Statutes (2016), establishes the method by which a trial court must determine the presumptive child support guideline amount. If the child support awarded deviates from the guideline amount by more than five percent, the final judgment must explain why the guideline amount is unjust or inappropriate. § 61.30(1)(a), Fla. Stat. (2016), Here, the absence of necessary findings precludes us from determining whether the child support awarded was a departure from the guidelines and, if so, whether that departure was justified. See Wilcox v. Munoz, 35 So.3d 136, 139-40 (Fla. 2d DCA 2010) (holding that trial court erred by failing to make required factual findings regarding parties’ net incomes; failure to make findings precluded determination of whether support ordered departed from guideline). On remand, the trial court is to make findings necessary to properly calculate the child support guideline amount.

REVERSED and REMANDED, with instructions.

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

      . We reject, without discussion, the former husband’s argument that it was error for the trial court to award durational alimony prior to resolution of all equitable distribution issues.


source: Caselaw Access Project

author: COHEN, C.J.,

license: Public Domain

text:
    Janie LERMA-FUSCO a/k/a Janie Lerma, as Personal Representative of the Estate of Franco Fusco a/k/a Frank Fusco, Appellant, v. Dennis SMITH, Individually and as Personal Representative of the Estate of Christian Alexander Smith and Tina Smith, Appellee.
    Case No. 5D16-1878
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017

      Keith S. Kromash, of Nash & Kromash, LLP, Melbourne, for Appellant.
    Francine R. Kalish, of Francine Rae Kalish, P.A., Indialantic, for Appellee.
   COHEN, C.J.,

Janie Lerma-Fusco (“Lerma-Fusco”), as the personal representative of the estate of Franco Fusco, appeals from an order granting Dennis and Tina Smith’s (“the Smiths”) motion to set aside an order striking the Smiths’ statement of claim and from an order granting the Smiths’ emergency motion for temporary injunction to freeze éstate assets. We dismiss the appeal from the order setting aside the order striking the Smiths’ statement of claim and reverse the order granting the temporary injunction.

By way of background, Franco Fusco died testate in 2014. Lerma-Fusco petitioned for administration of the estate, seeking to be appointed as the personal representative pursuant to the decedent’s will. Lerma-Fusco is the decedent’s surviving spouse, and she is the sole beneficiary under his will. The trial court admitted the will to probate and appointed Lerma-Fusco as personal representative of the estate. Lermar-Fusco filed a notice to creditors and notice of administration. She also filed a proof of publication of the notice to creditors and provided formal notice to numerous creditors; the Smiths were not among those provided notice.

Approximately six months after publication of the notice to creditors, the Smiths filed a statement of claim. The basis for the Smiths’ claim was a Michigan default judgment entered against the decedent in 1999, which was renewed in 2009. The original default was for $750,000, but the total amount of the claim at the time of filing the statement of claim was $1,452,057.95. The claim arose from the death of the Smiths’ son, Christian Smith, who was twenty years old at the time of his death. The Smiths filed a wrongful death claim against the decedent in Michigan that alleged that on December 31, 1996, the decedent hosted a New Year’s Eve party at his Michigan residence, during which Christian Smith became visibly intoxicated, left the residence, and was involved in a fatal accident while driving a vehicle.

Lerma-Fusco filed a motion to strike the statement of claim as untimely, claiming formal notice to the Smiths was not required because they were not known or reasonably ascertainable creditors of the estate; she also asserted that the ninety-day window for filing claims had expired prior to the Smiths’ filing of their statement of claim.

The probate court held a hearing on Lerma-Fusco’s motion to strike. Counsel for Lerma-Fusco conceded that if the probate court found the Smiths were known or reasonably ascertainable creditors, the claim would be timely filed because it was filed within two years of the service by publication, and the Smiths did not receive formal notice of the administration of the estate.

The evidence at the hearing revealed that Lerma-Fusco and the decedent had lived together for twenty years, including in Michigan. They married approximately three months before the decedent’s death. Despite the fact that the decedent and Lerma-Fusco lived together, worked together at the decedent’s business, and hosted the New Year’s Eve party, and despite her acknowledgment that she was notified in the early morning hours following the party about the death of the Smiths’ son, Lerma-Fusco denied knowing anything about the wrongful death suit or the Michigan judgment. Although the probate court found Lerma-Fusco’s testimony “incredulous,” the court granted the motion to strike the claim as untimely, finding that the Smiths did not demonstrate they were known or reasonably ascertainable creditors.

Approximately four months later, the Smiths filed a motion to set aside the order striking the statement of claim, alleging there was newly discovered evidence that Lermar-Fusco had actual knowledge of the default judgment, making the Smiths a known creditor of the estate. Following a hearing, the probate court granted that motion as well as the Smiths’ motion for a temporary injunction to freeze the assets of the estate.

On appeal, Lerma-Fusco focuses on the evidentiary admissibility of the information in the Smiths’ motion to set aside the order striking the statement of claim and the accompanying affidavits. If the proffered evidence was truthful, it would demonstrate that Lerma-Fusco knew about the Michigan default judgment. The crux of Lerma-Fusco’s argument is that the evidence set forth in the affidavits consisted of attorney-client communications and thus was privileged and inadmissible.

However, before considering the admissibility of the evidence, this Court must first determine whether it possesses jurisdiction to adjudicate this matter. Ler-ma-Fusco asserts that jurisdiction exists pursuant to Florida Rule of Appellate Procedure 9.170(b)(17). That rule provides that “appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person ... [including] orders that ... determine a motion or petition for enlargement of time to file a claim against an estate.” Fla. R. App. P. 9.170(b)(17).

The probate court’s order does not “finally determine” the merits of the Smiths’ claim against the estate. Rather, the order merely sets aside the order striking the Smiths’ statement of claim. The probate court determined that a subsequent evi-dentiary hearing would be held to address Lerma-Fusco’s contention that the Smiths’ evidence was inadmissible, and to determine whether the Smiths were indeed ascertainable creditors of the estate. Neither this Court nor the probate court, on the face of the affidavits, can determine whether the “newly discovered evidence” is privileged. That determination is dependent upon a number of factors, which will be addressed at the subsequent evidentiary hearing. See § 90.502, Fla. Stat. (2015). Thus, Florida Rule of Appellate Procedure 9.170(b)(17) does not provide this Court with jurisdiction to review the probate court’s order setting aside its earlier order. By its very nature, it is a non-appealable, non-final order. Therefore, we dismiss the portion of the appeal seeking review of that order.

Conversely, jurisdiction exists to review the order granting the temporary injunction freezing the estate assets. See Fla. R. App. P. 9.130(a)(3)(B). “A temporary injunction may be entered where the party seeking the injunction establishes: (1) the likelihood of irreparable harm; (2) the lack of an adequate remedy at law; (3), a substantial likelihood of success on the merits; and (4) considerations of the public interest.” Dickerson v. Senior Home Care, Inc., 181 So.3d 1228, 1229 (Fla. 5th DCA 2015) (citing Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002)). If a motion for temporary injunction meets the four criteria, the court must make findings in the order granting the injunction as to each of the criteria. See id.; see also Fla. R. Civ. P. 1.610(c) (providing that “[e]very injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document”). The Smiths concede error, acknowledging the order failed to comply with rule 1.610(c). Accordingly, we reverse the order granting the temporary injunction.

DISMISSED IN PART; REVERSED IN PART; and REMANDED.

BERGER, J., and NICHOLS, D., Associate Judge, concur.

      . In general, a claim against an estate must be filed within three months of the time of the first publication of notice to creditors. See § 733.702(1), Fla. Stat. (2015). This time limitation may be extended by the court if there is evidence of fraud, estoppel, or insufficient notice of the claims period. See id.; § 733.702(3). However, if a creditor is reasonably ascertainable, actual notice of the administration of the estate is required. See Fla. Prob. R. 5.241(a) (“[T]he personal representa-five shall promptly publish a notice to creditors and serve a copy of the notice on all creditors of the decedent who are reasonably ascertainable.’’). Notwithstanding these provisions, section 733.710, Florida Statutes, is a jurisdictional statute of nonclaim, which cannot be extended and limits claims against an estate to two years after the death of a decedent. See § 733.710(1), Fla. Stat. (2015); see also Jones v. Golden, 176 So.3d 242, 245 (Fla. 2015).


author: COHEN, C.J.

text:
    BLACK POINT ASSETS, INC., Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION ("FANNIE MAE"), a Corporation Organized and Existing Under the Laws of the United States of America, Appellee.
    Case No. 5D16-1026
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017

      Mark P. Stopa, of Stopa Law Firm, LLC, Tampa, for Appellant.
    Roy A. Diaz and Adam A. Diaz, of SHD Legal Group, P.A., Fort Lauderdale, for Appellee.
   COHEN, C.J.

Black Point Assets, Inc. (“Black Point”) appeals the summary final judgment of foreclosure against a property it purchased following a bankruptcy sale. Black Point argues that the trial court erred in not dismissing the complaint for failing to plead and prove that Federal National Mortgage Association (“Fannie Mae”) had a superior interest in the property. We affirm because the complaint properly alleged all of the necessary facts to state a claim for foreclosure, and Fannie Mae submitted sufficient summary-judgment evidence to establish a prima facie claim for foreclosure. Black Point’s additional objections to the summary judgment were not preserved for appeal.

Fannie Mae filed an initial complaint seeking foreclosure on a note and mortgage signed by Mary S. Cehi, the original homeowner. The note was payable to Countrywide Bank, FSB, and indorsed in blank. Attached to the complaint were assignments of the note from Countrywide to Bank of America, N.A., and then from Bank of America to Fannie Mae. The complaint further alleged that Cehi had defaulted on her obligations on August 1, 2013; that Fannie Mae had accelerated the note; and that $121,650.33 were due and owing on the note. Finally, the complaint alleged that Black Point was the current owner of the property.

Black Point acquired the property in January of 2014 in a private sale for $2000, following Cehi’s Chapter 7 bankruptcy. The bankruptcy trustee sold the property “As is, Where is” with notice of the $121,650.33 lien on the property.' Black Point’s “Trustee’s Quitclaim Deed” specifically stated that the deed issued' subject to all liens and encumbrances. Fannie Mae’s interest had been recorded in 2007.

Black Point later moved to dismiss the complaint, alleging, among other things, that the complaint failed to allege Fannie Mae’s interest was superior to Black Point’s interest because a section of the complaint listing “inferior -interests” did not list Black Point. The trial court denied the motion. After Black Point answered the complaint, Fannie Mae moved to strike Black Point’s affirmative defenses, and the court granted the motion. Black Point’s affidavit in opposition to summary judgment was struck as well because it was not based on personal knowledge.

Fannie Mae then filed an amended motion for summary judgment and requested the court to take judicial notice of the bankruptcy records, including the trustee’s intention to sell the property' “As is, Where is,” and the trustee’s quitclaim deed. A hearing was held on the summary-judgment motion, which counsel for Black Point attended even though there was no operative response to the motion for summary judgment after Black Point’s affirmative defenses had been struck. The court granted Fannie Mae’s motion.

On appeal, Black Point argues that the court erred in denying its motion to dismiss the complaint. This Court reviews an order on a motion to dismiss de novo. Deutsche Bank Nat’l Tr. Co. v. Lippi, 78 So.3d 81, 84 (Fla. 5th DCA 2012). The purpose of a motion to dismiss is to test the legal sufficiency of the allegations made in the complaint. Bilbrey v. Myers, 91 So.3d 887, 890 (Fla. 5th DCA 2012). By rule, the complaint need only include a “short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Fla. R. Civ. P. 1.110(b). The elements of a foreclosure complaint are: 1) an agreement, 2) a default, 3) an acceleration of the amount due, and 4) the amount due. Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014).

Fannie Mae’s complaint clearly met all four elements. It attached the mortgage showing an agreement between the parties. It also alleged a default and acceleration, then specified the amount due. Black Point provides no support for its argument that the plaintiff needs to allege the superiority of its interest in the property vis-a-vis named defendants.

By naming a party in the complaint, the plaintiff provides notice to the named parties that the plaintiff is asserting a superior interest. See U.S. Bank Nat’l Ass’n v, Bevans, 138 So.3d 1185, 1187 (Fla. 3d DCA 2014) (“Parties claiming title superior to the lien of a mortgage being foreclosed are not proper parties to the foreclosure suit.” (quoting Gonzalez v. Chase Home Fin. LLC, 37 So.3d 955, 957 (Fla. 3d DCA 2010))). If the plaintiff succeeds on its claim, the foreclosure will extinguish the interests of parties having an inferior interest. Bank of Am., N.A. v. Kipps Colony II Condo. Ass’n, 201 So.3d 670, 674-75 (Fla. 2d DCA 2016). Because every complaint seeking foreclosure necessarily alleges that the plaintiffs interest in the property is superior to the parties’ interests being foreclosed, we do not believe a complaint fails to state a claim simply because it does not explicitly state as much.

Finally, Black Point argues that Fannie Mae’s summary-judgment evidence, which established that Black Point took its interest in the property subject to, and with notice of, Fannie Mae’s interest, was not proper summary-judgment evidence. We find that this issue is waived as Black Point has not established that the issue was ever raised below. See, e.g., Aills v. Boemi, 29 So.3d 1105, 1109 (Fla. 2010) (explaining that appellate review is limited to “specific grounds raised at trial”). Black Point cites a number of cases in which courts have held that a transcript of a summary-judgment hearing is not necessary to preserve an issue for appeal. See, e.g., Houk v. PennyMac, Corp., 210 So.3d 726, 730-31 (Fla. 2d DCA 2017). Yet, in those cases, the issue was presented to the court through some other motion or paper, allowing the appellate court to be sure that the issue was actually raised and ruled on at some point. Here, Black Point’s affirmative defenses were all struck along with its opposition to summary judgment. Therefore, there is no way for this Court to determine whether Black Point ever challenged Fannie Mae’s summary-judgment evidence during the proceedings below.

Even if the issue were preserved, Black Point’s argument lacks merit. The summary-judgment evidence establishing the superiority of Fannie Mae’s interest included records from the bankruptcy court, along with the recorded deed. Fannie Mae requested the court to take judicial notice of the bankruptcy court records, which was proper. See § 90.202(6), Fla. Stat. (2014) (providing for the judicial notice of records of any court of the United States). The recorded deed was admissible as a public record and also established Fannie Mae’s superior interest. See § 90.955, Fla. Stat. (2014); see also §§ 695.01, 695.11, Fla. Stat. (2014) (explaining that priority of interests are established by the order they are recorded). Therefore, Black Point’s argument fails on its merits as well. In the absence of evidence in opposition to summary judgment, the party moving for summary judgment need only establish its prima facie case. Butler v. Butler, 870 So.2d 289, 240 (Fla. 2d DCA 2004). We find that Fannie Mae has met that burden. Accordingly, we affirm the summary final judgment order.

AFFIRMED.

BERGER, J„ and NICHOLS, D., Associate Judge, concur.

      . Alternatively, we note that the complaint’s “wherefore” clause requested the court determine that its interest is “superior to any and all right, title or interest of the Defendants herein.” This statement provides notice to the defendants of the relief sought.

      . Orders granting summary final judgment are reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The motion must be based on "summary-judgment evidence” — affidavits, answers to interrogatories, admissions, depositions, and other evidence that would be admissible at trial. Id.


author: VILLANTI, Chief Judge.

text:
    Vincent HEAD, Appellant, v. Laurene SORENSEN, as the sole surviving trustee under a trust instrument known as the Crepe Trust, dated February 28, 1972, and amended and restated as of January 10, 2002; Bayfront Tower Condominium Association Residential, Inc.; Tropical Realty & Investments, Inc., d/b/a Berkshire Hathaway HomeServices Florida Properties Group; and Thomas E. Hallis, Appellees.
    Case No. 2D16-3665
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017

      Adam B. Brouillet, Charles M. Harris, and Marie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellant.
    Courtney L. Fernald and Leonard S. Englander of Englander Fischer, St. Pe-tersburg, for Appellee Laurene Sorensen.
    No appearance for remaining Appellees.
   VILLANTI, Chief Judge.

Vincent Head appeals the final summary judgment entered in favor of Laurene Sor-ensen, as the Sole Surviving Trustee under a Trust Instrument known as the Crepe Trust, dated February 28, .1972, and amended and restated as of January 10, 2002 (Sorensen), in this case arising out of a contract for the purchase and sale of a condominium that is part of the Bayfront Tower Condominium Association Residential, Inc. (the Association). Because material questions of fact exist concerning whether Sorensen acted in good faith in attempting to procure the Association’s approval of the contract, the trial court erred by entering final summary judgment in favor of Sorensen, and we must therefore reverse and remand for further proceedings.

After the death of her father, Sorensen sought to sell a condominium that he owned in .Bayfront Tower, in St. Peters-burg. Sorensen, who lives in Idaho, obtained a referral to a local real estate agent, who prepared a market analysis of the condominium based on a number of factors, including its location and condition. Sorensen told the agent that she needed to sell the condominium quickly to obtain the cash necessary to pay some of the trust’s expenses. Based on the condition of the condominium together with Sorensen’s desire to expedite a sale, the agent recommended a listing price of $405,000. Soren-sen agreed and listed the condominium for sale at $405,000.

Head had been looking at condominiums in downtown St. Petersburg for a period of time because he wanted to relocate there from Tampa. He learned of Sorensen’s condominium through the listing agent, and he made a full-price offer to Sorensen the same day the condominium was listed. Sorensen accepted the offer, and the listing on the Multiple Listing Service (MLS) website was updated to show that the condominium was sold with a contract price of $405,000. Ón May 31, 2015, both Head and Sorensen signed the contract for purchase and sale of the condominium at the listing price, and closing was set for July 13,2015.

The day the MLS listing was updated to show the pending sale, Sorensen received a telephone call from another owner in the Bayfront Tower condominium. In that conversation, the owner told Sorensen that, in his opinion, the sales price for her father’s condominium. was too low and that she could have gotten much more for it. Shortly after that telephone call, Sorensen contacted her agent and requested that he cancel the contract with Head and cancel the MLS listing. Sorensen signed a proposed “Release and Cancellation of Contract” document attempting to cancel 'the sale, and that document was forwarded to Head on June 8, 2015., Head refused to sign the cancellation and indicated his intent to go forward with the purchase.

The contract for purchase and sale included a condominium rider that conditioned the sale of the condominium on the Association’s approval of the buyer. Head timely filed his application with the Association, along with the requested supporting documents. Shortly thereafter, Sorensen contacted the Association and advised them that she did not want to go through with the sale. She told the Association that there were “legal issues” that might prevent the closing — although she did not identify what the alleged “legal issues” were — and she also suggested that the Association should closely investigate Head’s ability to pay all of the costs associated with the condominium. When the Association subsequently expressed its intent to reject the contract on the basis of the low sales price, Sorensen stated that she had no objection to this. The Association then sent written notification to Sorensen that it was rejecting the contract. Based on this rejection, Sorensen advised Head that she would not attend closing on July 13 because the sale could not be completed due to the Association’s rejection of the contract.

In response, Head filed suit against Sor-ensen, alleging counts for injunctive relief, specific performance, and damages for breach of contract. After extended discovery, Sorensen filed a motion for summary judgment, arguing that the contract had terminated under the title examination provision and therefore she was not liable to Head as a matter of law. The trial court held an extended hearing, and it granted final summary judgment in favor of Soren-sen based on termination of the contract under both the title examination provision and the provision of the condominium rider that conditioned the sale on the Association’s approval. Head, then filed this appeal, raising three bases for reversal.

Head first contends that the trial, court erred by entering final summary judgment in favor of Sorensen under the title examination provision of the contract, arguing that questions of fact existed concerning whether Sorensen had complied with her obligations under that provision. We agree.

Paragraph 18(A)(1) of the contract required that a title commitment “with legible copies of instruments listed as exceptions attached thereto” be delivered to Head no later than five days before closing. Paragraph 18(A)(ii) gave Head five days to examine the title commitment and notify Sorensen in writing of any defects that rendered the title unmarketable. The same paragraph gave Sorensen thirty days in which to cure any defects identified by Head after his review of the title commitment, and it contained an option to extend this cure period for an additional 120 days. The provision further stated that if Soren-sen could not cure the identified defects “after reasonable diligent effort,” the contract would terminate.

In her motion for summary judgment, Sorensen argued that the title commitment provided to Head listed the Association’s approval of the buyer as a “defect” or condition that had to be cleared in order to close. Because of the Association’s undisputed interest in this condominium, this “defect” or condition could not be waived by either Head or Sorensen. Sorensen argued that because the undisputed evidence showed that the Association rejected the contract in writing on June 30, 2015 — more than five days prior to closing — the undisputed evidence proves that this title defect could not be cleared and that therefore the contract terminated by its own terms on June 30. She argued that these facts required the trial court to grant final summary judgment in her favor, and the trial court agreed.

The fallacy in this determination is that it presumes, contrary to some of the evidence, that Sorensen’s contractual obligation to engage in a “reasonable diligent effort” occurred and that she acted in good faith to try to clear the identified title defect. We recognize that members of the Association’s board all testified at deposition that they rejected the contract because the price was too low, in their opinions. However, each of them also testified that they had not seen the interior of the unit and did not know its condition. Further, Sorensen did not provide any of them with the market analysis prepared by her agent upon which she relied in setting the sales price. Instead, Sorensen made the Association aware that she did not want to go through with the sale, and in fact she further suggested to the Association that it should investigate Head’s finances because she did not know whether he could “carry” the costs of the condominium. These undisputed facts give rise to at least an inference that Sorensen assisted in procuring the rejection from the Association. At a minimum, these undisputed facts tend to show that Sorensen had information that she could have easily provided to the Association to justify the sales price if she had wanted to, and a reasonable jury could find that if Sorensen had been acting in good faith, she would have provided this information to the Association to encourage it to approve the contract. And while Soren-sen was not required to engage in futile negotiations with the Association to show reasonable diligence, see Waksman Enters., Inc. v. Or. Props., Inc., 862 So.2d 35, 43-44 (Fla. 2d DCA 2003), her actions in encouraging the Association to reject the contract cannot satisfy her obligation to engage in a “reasonable diligent effort,” see Bermont Lakes, LLC v. Rooney, 980 So.2d 580, 587 (Fla. 2d DCA 2008) (noting that what constitutes “reasonable diligence” is nearly always a mixed question of law and fact that is not usually amenable to resolution on summary judgment). In light of these material questions of fact, Sorensen’s motion for summary judgment on the basis of the title examination provision should have been denied.

Second, Head contends that the trial court’s alternate basis for entry of the final summary judgment — that the contract terminated automatically under the condominium rider when the Association rejected the contract — was also legally improper. We agree with this contention as well.

As discussed in connection with the title commitment argument above, it is undisputed that the Association board members all testified at deposition that they rejected the contract because the price was too low. But faced with this objection to the sale, Sorensen did nothing to attempt in good faith to “sell the sale” to the Association. She did not offer to provide the Association with the market analysis prepared by her agent that supported the sales price. She did not offer to show the board members the interior of the unit so they could see its condition. She did not discuss her intent to sell the condominium quickly so that she would have cash to support the trust’s other expenses. Instead, she affirmatively advised the Association that she did not want to go through with the sale, and she even suggested that Head was not financially sound enough to maintain the condominium. These undisputed facts give rise to an inference that Sorensen actively assisted in procuring the rejection from the Association by failing to present it with any evidence that might have persuaded it to approve the sale despite the “low” sales price. At a minimum, these facts tend to show that Sorensen had information that she could have easily provided to justify the sales price if she had wanted to act in compliance with her duty of good faith.

When there are questions of fact as to whether one party to a contract has acted in bad faith by helping to procure an event that would cause the contract to terminate, summary judgment in favor of that party is improper. See Paparone v. Lake Placid Holding Co., 438 So.2d 155, 157 (Fla. 2d DCA 1983) (holding that “if one prevents or renders impossible the performance or occurrence of a condition precedent, upon which his liability is contingent, he cannot avail himself of its nonperformance” (citing Ballas v. Lake Weir Light & Water Co., 100 Fla. 913, 130 So. 421 (1930)); see also Allied Fidelity Ins. Co. v. Scott, 516 So.2d 315, 317 (Fla. 2d DCA 1987) (holding that the party cannot act so as to prevent another’s performance and then rely on that nonperformance to avoid contractual obligations); N. Am. Van Lines v. Collyer, 616 So.2d 177, 179 (Fla. 5th DCA 1993) (“[A] party who, by his own acts, prevents performance of a contract provision cannot take advantage of his own wrong.”). Here, such questions do exist. Therefore, Sorensen was not entitled to summary judgment in her favor on the issue of whether the contract terminated under the condominium rider, and the trial court erred by entering final summary judgment in the face of such undisputed facts.

Finally, Head contends that the trial court erred in entering final summary judgment in favor of Sorensen on the breach of contract count. Because we are reversing the summary judgment on the other counts, summary judgment on this count must be reversed as well.

As the Fourth District explained in Wolofsky v. Waldron, 526 So.2d 945, 946 (Fla. 4th DCA 1988):

Where,’ as here, a contract for the sale of real property contains a provision permitting the seller to remedy any title defect within a period of time, failing which the seller’s liability under the contract is limited to either conveying the title with the defect or refunding to the vendee all monies paid under the contract, at the option of the vendee, such limitation of liability does not protect the seller from the vendee’s claim for damages for breach of the contract if the seller is shown to have acted in bad faith,

See also Sperling v. Davie, 41 So.2d 318, 321 (Fla, 1949) (holding that if a breach is solely the result of bad faith on the part of the sellers in failing to clear a title defect, the buyer will not be limited to a refund of the deposit but may also recover damages). To limit the buyer to just the return of his deposit creates an incentive for the seller to dishonor the contract: “This seems to us to come perilously close to arguing that the sellers, after entering into a solemn agreement, could glibly dishonor it and restrict the buyer to regaining what was in practical effect already his, inasmuch as the transaction was not consummated and the sellers were therefore not entitled to the money.” Romines v. Nobles, 55 So.2d 563, 564 (Fla. 1951) (quoting Sperling, 41 So.2d at 320)). Creating an incentive for a seller to breach the contract is anathema to the law.

Here, material questions of fact exist concerning whether Sorensen acted in good faith to attempt to clear the title defect by diligently seeking the Association’s approval of the contract. These questions of fact precluded summary judgment on the specific performance count, and they likewise precluded summary judgment on the breach of contract count.

For all of these reasons, we reverse the final summary judgment in favor of Soren-sen on all counts of the amended complaint, and we remand for further proceedings.

Reversed and remanded for further proceedings.

BADALAMENTI, J., and SMITH, ANDREA, ASSOCIATE JUDGE, Concur.

      . Head, also alleged various counts against the Association; however, those claims were settled and the Association is not a party to this appeal. In addition, Sorensen filed a third-party complaint against Tropical Realty & Investments, Inc,, and Thomas E. Hallis, the realtor who listed the condominium for sale. They have not appeared in this appeal.

      . There are indications in the record that the condominium, while well-maintained, had not been updated in any way since it was originally built out in the 1970s. In addition, the new owner would be facing a $30,000 assessment for replacement of the exterior windows before the end of 2015. The listing agent testified that it would take between $100,000 and $150,000 to bring the condominium up to the standards of other units in the building.

      . In his motion for rehearing in the trial court and in the brief to this court, Head argued that Sorensen was not entitled to summary judgment on this basis because it had not been argued in her written motion for summary judgment, pointing to Florida Rule of Civil Procedure 1.510(c), which requires that a summary judgment motion "state with particularity the grounds on which it is based and the substantial matters of law to be argued.” While Head is correct that the argument was not made in Sorensen’s written motion, the record also shows that Head did not object to Sorensen’s arguments on this basis at the summary judgment hearing and instead made substantive arguments in opposition to the trial court’s ruling. Having waived the opportunity to object, Head waived the objection itself and could not raise it for the first time in his motion for rehearing in the trial court. Wong v. Crown Equip. Corp., 676 So.2d 981, 981-92 (Fla. 3d DCA 1996); see also E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So.2d 763, 764 (Fla. 2d DCA 1987) ("Procedural irregularities to which no objection is made are waived.”).

      . In fact, Sorensen provided this market analysis to Head only after he filed a motion to compel its production during discovery and only after that motion was heard and granted by the trial court.


author: Kuntz, J:

text:
    Jerome LORD, Appellant, v. Louise LORD, Appellee.
    No. 4D16-2290
    District Court of Appeal of Florida, Fourth District.
    June 21, 2017
    Craig A. Boudreau, West Palm Beach, for appellant.
    Kenneth D. Lemoine of Kenneth D. Lemoine, P.A., West Palm Beach, for ap-pellee. .
   Kuntz, J:

The Former Husband appeals the circuit court’s orders denying his motions to em force the marital settlement agreement, compel mediation, and compel an inventory of personal, property and similar items. We reverse because section 61.075, Florida Statutes (2012), required the court to identify and value all marital and non-marital property, and distribute the marital property.

Five years ago, the circuit court entered a final judgment of dissolution of marriage and incorporated marital settlement agreement. Within the incorporated marital settlement agreement was a provision which stated that the parties would,' “amicably divide all personal property, furnishings, and other like items between themselves” and, if not able to do so, they would mediate the division of any remaining items.

As often occurs, the parties were unable to resolve the distribution of personal property and furnishings. Therefore, the Former Husband filed a motion to enforce the marital settlement agreement, a motion to compel mediation, and a motion to compel inventory. The circuit court held a hearing on the motions and heard testimony from the Former Husband and Former Wife.

After the parties testified, the court expressed concern about mediation and whether the parties would be truthful with the mediator. It also questioned, if it ordered an inventory of the remaining items of personal property, whether the court was “supposed to figure out” the truth regarding which items were marital and non-marital. After listening to counsel’s answers to its questions, the court denied the Former Husband’s motions.

In a marital dissolution action, section 61.075, Florida Statutes (2012), “expressly requires trial courts” to make specific written findings identifying, valuing, and distributing marital and non-marital property. Siegel v. Siegel, 967 So.2d 349, 351 (Fla. 3d DCA 2007); see also Patino v. Patino, 122 So.3d 961, 963 (Fla. 4th DCA 2013); Whelan v. Whelan, 736 So.2d 732, 733 (Fla. 4th DCA 1999).

While the procedural posture of this dissolution action was somewhat unique, the parties’ agreement to attempt to distribute the personal property without court intervention did not eliminate the court’s statutory obligation to do it for them when their efforts at a non-judicial resolution failed.

The court’s orders are reversed and the case is remanded for further proceedings. On remand, the court may compel mediation. However, if the court declines to compel mediation or the parties are unable to resolve the dispute through mediation, the court shall conduct a hearing and make written findings that sufficiently identifies the contested personal property, values the contested personal property, determines whether the contested personal property is marital or non-marital, and distributes the marital property. Pierre v. Jonassaint, 212 So.3d 1131, 1133 (Fla. 3d DCA 2017).

Reversed and remanded with instructions.

Gross and Conner, JJ., concur.


author: PER CURIAM.

text:
    Christopher COTTRELL, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3364
    District Court of Appeal of Florida, First District.
    Opinion filed June 23, 2017
    Christopher Cottrell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the April 16, 2015, order denying defendant’s rule 3.850 motion for postconviction relief in Wakulla County Circuit Court case number 2009-CF-00234. 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. Fla. R. App. P. 9.141(c)(6)(D).

ROBERTS, C.J., LEWIS and BILBREY, JJ., CONCUR.


author: ORFINGER, J.

text:
    Carlos M. RODRIGUEZ, Rafael Rodriguez and their Assignee National Recovery Center, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    Case No. 5D17-196
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 23, 2017
    Rafael De Araujo, of Law Office of Rafael de Araujo, P.A., Miami, for Appellants.
    Roy A. Diaz, of SHD Legal Group, P.A., Fort Lauderdale, for Appellee.
   ORFINGER, J.

The issue in this case is whether the trial court erred in entering an order disbursing surplus proceeds from a foreclosure sale to the buyer to use to satisfy subordinate lienholders who were not parties to the foreclosure action. Because the issue is purely a question of law, our review is de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla. 2000).

Federal National Mortgage Association (“FNMA”) brought a foreclosure action against Carlos M. Rodriguez and Rafael Rodriguez, the property owners. No subordinate lienholders were named in the foreclosure complaint. In time, a final judgment was entered, a foreclosure sale was held, and the property was sold to Luzupo-zo, LLC, a third-party purchaser. After FNMA’s judgment was satisfied in full, surplus funds remained with the clerk of the court. Less than sixty days after the clerk issued the certificate of disbursements, the Rodriguezes and their assignee, National Equity Recovery Services, Inc. (“NERS”), filed a claim for the surplus funds. More than sixty days after the clerk issued the certificate of disbursements, Luzupozo asked the court to release the surplus funds to pay off liens on the foreclosed property that were alleged to be inferior to FNMA’s mortgage. The trial court granted Luzupozo’s request and ordered the clerk to disburse the surplus funds to pay off the liens detailed in Luzu-pozo’s motion. The Rodriguezes and NERS now appeal.

Section 45.082, Florida Statutes (2016), creates a rebuttable presumption that the owner of record is entitled to receive all “surplus funds after the payment of subordinate lienholders who have timely filed a claim.” Section 45.032(l)(a) defines the “owner of record” as the person who appears to be the owner of the property “that is the subject of the foreclosure proceedings on the date of the filing of the lis pendens.” “Subordinate lienholder” is defined to mean “the holder of a subordinate lien shown on the face of the pleadings as an encumbrance on the property.” Id. § 45.032(l)(b). During the sixty days after the clerk issues a certificate of disbursements, the clerk is required to hold the surplus pending a court order. If, as here, the owner of record claims the surplus during the sixty-day period, and. there are no subordinate lienholders, the court is to order the clerk to pay the surplus to the owner of record after the payment of any applicable service charges. See § 45.032(3)(a), Fla. Stat. (2016). That did not happen here.

The distribution of surplus foreclosure proceeds is governed by a, statutory procedure that unambiguously provides that the owner of record is entitled to the surplus proceeds, except in certain limited circumstances not present here. See § 45.033, Fla. Stat. (2016). When the legislature has provided such a process, courts are not free to deviate from that process absent express authority. Pineda v. Wells Fargo Bank, N.A., 143 So.3d 1008, 1011 (Fla. 3d DCA 2014). The statute governing the distribution of surplus foreclosure sale proceeds does not provide a mechanism authorizing a third-party purchaser to obtain the surplus or its benefits. See § 45.032(1)(a), Fla. Stat. (2016).

The notice of lis pendens recorded in this case reflects that the Rodriguezes owned the subject property. No subordinate lienholders were shown on the face of the complaint, tuzupozo was neither an “owner of record,” an assignee of the owner, nor a “subordinate lienholder,” and thus was not entitled to benefit from the surplus funds. Under the facts present here, the application of the statute is clear — the owner of record at the time of the recording of the lis pendens is entitled to any surplus proceeds.

On this record, there is no mechanism by which Luzupozo could benefit from the surplus and the trial court erred in finding otherwise. We reverse and remand with directions that the surplus funds be deposited back into the court registry and for further proceedings consistent herewith.

REVERSED and REMANDED WITH DIRECTIONS.

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


text:
    Anthony D. CARTER, Petitioner, v. Richard S. LAWSON, Respondent.
    CASE NO. 1D17-0937
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017
    Anthony D. Carter, pro se, Petitioner.
    Richard S. Lawson, pro se, Respondent.
   PER CURIAM.

We hereby grant the petition for writ of mandamus. The circuit court shall rule on the pending motion to hear and rule, motion to compel answers to request for admissions and interrogatories, and amended motion to compel answers to interrogatories within a reasonable time, not to exceed sixty days from issuance of mandate in this cause. Because we are confident that the circuit court will issue a ruling, we withhold issuance of the formal writ.

ROBERTS, C.J., LEWIS and BILBREY, JJ., CONCUR.


text:
    Randall ROLLE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2283
    District Court of Appeal of Florida, First District.
    Opinion filed June 30, 2017
    Randall Rolle, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

ROBERTS, C.J., WINOKUR, and M.K. THOMAS, JJ., CONCUR.


text:
    K.C., Mother of P.C., Minor Child, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    CASE NO. 1D17-1902
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017
    Candice K. Brower, Regional Counsel, and Jeanne O. Conway, Assistant Regional Counsel, Office of Criminal Conflict & Civil Regional Counsel, Lake City, and Crystal McBee Frusciante, Assistant ' Regional Counsel, Sunrise, for Petitioner.
    David Paul Krupski, Guardian ad Litem Program, Sanford; Ward L. Metzger, Children’s Legal Services, Jacksonville, for Respondent.
   PER CURIAM.

The Mother timely sought review by appeal of a post-disposition dependency order that granted a motion to change the permanency goal to permanent guardianship, placed the child in permanent guardianship, terminated protective supervision, and directed the filing of a modified case plan. The order is not final because judicial labor remains to be done to achieve permanency for the dependent child. See § 39.603(1), Fla. Stat. (2017); M.M. v. Dep’t of Children & Families, 189 So.3d 134, 137 (Fla. 2016); T.H. v. Dep’t of Children and Families, 736 So.2d 126 (Fla. 1st DCA 1999). Although the order stated that the modified case plan shall be accepted and adopted by the court upon filing, a non-final order may not become final at some future date upon the happening of an event specified in the order. Ponton v. Gross, 576 So.2d 910 (Fla. 1st DCA 1991). Pursuant to M.M., the appeal was treated as invoking the Court’s certiorari jurisdiction, and the Mother was directed to file a petition.

Having considered the petition for writ of certiorari, the matter is hereby DISMISSED. Eutsay v. State, 103 So.3d 181, 182 (Fla. 1st DCA 2012); Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (“If petitioner has failed to make a prima facie showing of irreparable harm, we lack jurisdiction and will enter an order dismissing the petition.”); Md. Cas. Co. v. Century Constr. Corp., 656 So.2d 611 (Fla. 1st DCA 1995) (holding preliminary post-judgment order is not reviewable where it will culminate in a subsequent order granting or denying the relief requested and thereby offering the possibility of relief on review from the later order). The dismissal is without prejudice to the Mother’s right to seek review upon entry of a final order modifying the permanency goal to permanent guardianship.

WOLF, ROWE, and KELSEY, JJ., CONCUR.


text:
    Jefferson Wayne BOURGEOIS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1017
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017.
    William R. Wade, Milton, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We grant respondent’s motion to dismiss, and the petition for writ of prohibition is hereby dismissed.

WOLF, ROWE, and KELSEY, JJ., CONCUR.


text:
    Terrance Tyrone MASON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3485
    District Court of Appeal of Florida, First District.
    Opinion filed July 11, 2017

      Andy Thomas, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Thomas H. Duffy and Daniel R. Krum-bholz, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Terrance Tyrone Mason, challenges the trial court’s denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error, wherein he sought credit for time served. For the reasons that follow, we reverse and remand.

The trial court denied Appellant’s motion upon concluding that claims regarding jail credit must be raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.801, and even if they could be raised in a rule 3.800(b)(2) motion, they were insufficiently pled. The State properly concedes that the trial court erred by denying Appellant’s motion on the ground that claims regarding credit for time served must be raised in a rule 3.801 motion and cannot be raised in a rule 3.800(b)(2) motion. See In re Amendments to Fla. R. of Crim. P., 204 So.3d 944, 944-45 (Fla. 2016) (explaining that the 2016 amendments to rules 3.800 and 3.801 “make clear that jail credit matters can be litigated in either a motion filed under rule 3.800(b) while a defendant’s direct appeal is pending, or in a motion filed under rule 3.801 after a defendant’s sentence has become final”); see also Cousnard v. State, 188 So.3d 936, 936 (Fla. 1st DCA 2016) (reversing the trial court’s denial of a rule 3.800(b)(2) motion to correct sentencing error that sought an additional award of jail credit); Lowe v. State, 152 So.3d 1279, 1280 (Fla. 1st DCA 2015) (quashing the trial court’s orders on the appellant’s rule 3.800(a) motion seeking additional jail credit, which it had treated as a rule 3.801 motion, without prejudice to the appellant filing a rule 3.800(b)(2) motion or a rule 3.801 motion after the direct appeal concluded). Additionally, the trial court erroneously concluded that Appellant’s claims were insufficiently pled given that he identified the alleged errors with specificity and set forth the amounts of credit he claims he is entitled to receive. See Fla. R. Crim. P. 3.800(b) (“The motion must identify the error with specificity and provide a proposed correction.”). Therefore, we reverse and remand for further proceedings.

REVERSED and REMANDED.

LEWIS, ROBERTS, and BILBREY, JJ., CONCUR.


text:
    Rufus Marcel ABRAMS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-3291
    District Court of Appeal of Florida, First District.
    Opinion filed July 11, 2017
    Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We previously affirmed Appellant’s sentence based on our en banc decision in Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013) (Walton I), which held that mandatory mínimums under the 10-20-Life statute must be imposed consecutively regardless of whether the defendant possessed or discharged a firearm. However, the Florida Supreme Court quashed our decision in this case and remanded for reconsideration in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016) (Walton II), and Williams v. State, 186 So.3d 989 (Fla. 2016). See Abrams v. State, 42 Fla. L. Weekly S680, 2017 WL 2302328 (Fla. May 26, 2017).

In Williams, the Court held that “consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." 186 So.3d at 993; accord Walton II, 208 So.3d at 64. But, the Court also held that “[i]f ... multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.” Williams, 186. So.3d at 993.

Here, the jury found Appellant guilty of discharging a firearm in each of the charged offenses. The offenses occurred in the same episode and involved multiple victims. Thus, the trial court had discretion to impose concurrent or consecutive mandatory minimum sentences in this case.

At sentencing, the trial court stated that it was bound by this court’s decision in Walton I to impose consecutive mandatory minimum sentences. However, the court also stated that it would not have imposed consecutive mandatory mínimums if it was not compelled to do so. Accordingly, because it is clear the trial court would not have imposed the same sentence if it was not bound by Walton I, we reverse Appellant’s sentence and remand for resentenc-ing in accordance with Williams and Walton II.

We affirm the remaining issues on appeal.

AFFIRMED in part; REVERSED in part; REMANDED for resentencing.

B.L. THOMAS, C.J., WETHERELL, and RAY, JJ., CONCUR.