text:
    R.L. WILLIAMS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D16-2357.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2016.

      R.L. Williams, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

ON MOTION FOR REHEARING, CLARIFICATION, AND WRITTEN OPINION

In March of 1987, Petitioner, R.L. Williams, was tried for, and convicted of, first-degree murder and armed robbery. In June of 1987, the trial court imposed consecutive life sentences. Following an appeal, this court affirmed the judgments of conviction and the life sentence for the first-degree murder, but reversed and remanded for a resentencing on the armed robbery conviction. See Williams v. State, 544 So.2d 1125 (Fla. 3d DCA 1989).

On August 25, 1989, the trial court held a resentencing hearing and again imposed a consecutive life sentence for the armed robbery conviction. No appeal was taken from that sentence.

On October 19, 2016, Williams filed the instant petition for writ of habeas corpus, seeking a belated appeal of his 1989 consecutive life sentence. In his petition, Williams set forth the reasons why he did not timely appeal this resentencing:

[The] reason the claim in the present petition was not raised previously is because at resentencing ... on August 25, 1989, Petitioner expressed to Counsel B. Myrberg who was at resentencing instead of Yale Galanter that “They did the wrong thing and still gave me life, I want to appeal”, counsel expressed that he would tell Mr. Galanter and, based upon Mr. Myrberg response, Petitioner proceeded after 1989 under the misleading belief that an appeal from his resen-tencing was pending review in this Court and, until August 2016, was unaware that Mr. Myrberg nor Mr. Galan-ter never filed a notice of appeal from the resentencing.

Given the seventeen-year lapse of time between the resentencing and the instant petition, we denied Williams’ request for a belated appeal. See Fla. R. App. P. 9.141(c)(5)(A). Undaunted, Williams has filed a motion for rehearing, clarification, and written opinion. We deny Williams’ request for rehearing and clarification. However (and likely to his chagrin), we grant Williams’ motion for written opinion and, in doing so, order Williams to show cause why he should not be sanctioned for abusing the postconviction process by filing a petition that contains factual allegations which are materially and irreconcilably in conflict with a pro se pleading previously filed by Williams in an earlier appeal to this court.

SHOW CAUSE ORDER

Specifically, in case number 3D07-2543, Williams appealed from a 2007 order denying his motion to correct illegal sentence under Florida Rule of Criminal -Procedure 3.800(a). In the pro se brief filed in that appeal, Williams raised the following issues:

I. BECAUSE HE WAS NOT PRESENT AND REPRESENTED BY COUNSEL AT THE PURPORTED RE-SENTENCING PROCEEDING, APPELLANT IS ENTITLED TO RE-SENTENCING, REPRESENTED BY COUNSEL AND TO GIVE EVIDENCE AS TO WHY HE SHOULD RECEIVE A LESSER SENTENCE.
II. WILLIAMS WAS NOT INFORMED OF RIGHT TO APPEAL RE-SENTENCING PROCEEDING.

Williams’ pro se brief contained the following factual assertions in support of these two claims:

Appellant contends that the trial court did not conduct a re-sentencing hearing during which he [Williams] appeared before the court, on August 25, 1989. While the written sentencing order does indicate [that Williams was present], it [the sentencing order] is wrong.... Had Williams been present he would have given evidence and argument in support of a sentence less than life.
Further, had Williams been present during the purported hearing he would have demanded that counsel appeal the subsequent sentence due to the extent of departure.
As previously argued ... [Williams] was neither present or represented by legal counsel at the alleged re-sentencing hearing conducted on August 25, 1989, Moreover, it would have been counsel's] duty to execute the appeal, prior to his withdrawal. No appeal was ever taken from the re-sentencing proceedings, despite a mandatory life sentence imposed, and the extent of the departure. Had Williams been present at the re-sentencingj he would have offered evidence and argument in support of a lesser sentence, consistent with the sentence negotiation, and would have demanded that counsel execute the appeal. (Emphasis added).

So what we now know is that on February 8,2008, when Williams signed and filed his pro se brief in 3D07-2543, he alleged that “no appeal was ever taken from the re-sentencing proceedings.” And yet, in the instant pro se petition, signed and filed more than eight years later, Williams now asserts, inexplicably, that he was “under the misleading belief that an appeal from his resentencing was pending review in this Court and, until August 2016, was unaware that Mr. Myrberg nor Mr. Galan-ter never filed a notice of appeal from the resentencing.”

We also know that, on February 8, 2008, when Williams signed and filed his pro se brief in 3D07-2543, he alleged that he was not even present for the resentencing proceeding, and further alleged that “had Williams been present during the purported hearing he would have demanded that counsel appeal the subsequent sentence.” And yet, in the instant pro se petition signed and filed more than eight years later, Williams now asserts that “at resen-tencing on August 25, 1989, Petitioner expressed to Counsel ... ‘They did the wrong thing and still gave me life, I want to appeal.’ ”

These two versions, contained in two different pro se pleadings signed and filed by Williams, are irreconcilable and evidence a calculated attempt to subvert the postconviction process by maliciously bringing false information before this court. By his actions, Williams appears to have demonstrated a willful attempt to fabricate material “facts” as needed to satisfy his then-present purposes. Such a perversion of the judicial system cannot be condoned, and cannot be justified by his pro se status. As we have previously observed, a litigant may forfeit the right to proceed pro se where he abuses the judicial process, and no pro se litigant has the “right” to continue to file wholly frivolous or patently false postconviction motions and petitions. See e.g., Jimenez v. State, 196 So.3d 499 (Fla. 3d DCA 2016); Westbrook v. State, 149 So.3d 723 (Fla. 3d DCA 2014); Walker v. State, 139 So.3d 371 (Fla. 3d DCA 2014)

The present situation goes beyond the pale, as Williams is not merely continuing to file claims which have previously been heard, considered and rejected. Instead, Williams’ malicious and deceptive conduct strikes at the very heart of a system in which truth serves as an indispensable component of justice.

Accordingly, we order R.L. Williams, within thirty (30) days from the date of this order, to file a response and to show cause why this court should not impose sanctions, including: prohibiting Williams from submitting further pro se appeals, petitions, motions or other pleadings regarding lower court case number F86-5409, unless such pleadings are signed by an attorney who is a duly licensed member of The Florida Bar in good standing; and directing the Clerk of this Court to forward a certified copy of this opinion, and any further opinion or order issued in this cause, to the Department of Corrections pursuant to section 944.279(1), Florida Statutes (2016) for consideration of disciplinary procedures.

      . Mr. Galanter was Petitioner’s counsel during the trial and the initial sentencing. It appears, from the limited record provided, that Mr. Myrberg stood in for Mr. Galanter and represented Williams during the resen-tencing proceeding.

      . This court affirmed the trial court’s order in all respects, except for directing the trial court to award Williams an additional 125 days’ credit for time served in the county jail prior to his original sentencing. See Williams v. State, 979 So.2d 1007 (Fla. 3d DCA 2008),

      . We note that, since his direct appeal, Williams has filed at least fifteen pro se post-conviction appeals or original proceedings in this court.

      . That subsection provides:
      At any time, and upon its own motion or on motion of a party, a court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith. A prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal in any court of this state or in any federal court, which is filed after June 30, 1996, or to have brought a frivolous or malicious collateral criminal proceeding, which is filed after September 30, 2004, or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The court shall issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    Sharon L. ROLLINS, Appellant, v. Marilyn M. DICKERSON and Misti R. Delgado, Appellees.
    No. 3D15-1451.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2016.
    Billbrough & Marks and Geoffrey B. Marks, for appellant.
    Kubicki Draper and Sharon C. Degnan, Fort Lauderdale, for appellees.
    Before EMAS, FERNANDEZ and SCALES, JJ.
   EMAS, J.

Sharon L. Rollins, the plaintiff below, appeals from a final judgment in her favor and a subsequent order of the trial court denying her motion for additur and, alternatively, for new trial. We affirm, holding that the trial court did not abuse its discretion in denying the motion for new trial, as the alleged errors upon which the motion was premised are either unmeritorious or were not properly preserved. See Roth v. Cohen, 941 So.2d 496, 600 (Fla. 3d DCA 2006) (holding that an issue “must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved”) (quoting Archer v. State, 613 So.2d 446, 448 (Fla. 1993)). Had Rollins’ trial counsel made a specific, proper and contemporaneous objection, thereby giving the trial court adequate notice of the nature and impact of the alleged error, the trial court would have had the opportunity to fashion an appropriate remedy to ameliorate any error and cure the resulting prejudice which Rollins raises for the first time on appeal.

We also hold that the trial court did not abuse its discretion in denying Rollins’ motion for additur. Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998); Carnival Corp. v. Amato, 840 So.2d 1088 (Fla. 3d DCA 2003); Kmart Corp. v. Bracho, 776 So.2d 342 (Fla. 3d DCA 2001); Phillips v. Ostrer, 481 So.2d 1241 (Fla. 3d DCA 1986).

Affirmed.


author: PER CURIAM.

text:
    Maria Mayte HERNANDEZ, Appellant, v. Hanan IBRAHIM, et al., Appellees.
    No. 3D15-2349.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2016.
    Louis Thaler, for appellant.
    Cole, Scott & Kissane and Kathryn L. Ender, for appellee R & R Real Estate Corp.
    ■ Before EMAS, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.510(f); Bldg. Educ. Corp. v. Ocean Bank, 982 So.2d 37 (Fla. 3d DCA 2008); Williams v. Garden City Claims, Inc., of N.Y., 796 So.2d 586 (Fla. 3d DCA 2001); Carbonell v. BellSouth Telecomm., Inc., 675 So.2d 705 (Fla. 3d DCA 1996); Crespo v. Fla. Entm’t Direct Support Org., Inc., 674 So.2d 154 (Fla. 3d DCA 1996).


text:
    David Lee BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-176.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2016.
    David Lee Brown, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   PER CURIAM.

We affirm without discussion the trial court’s order prohibiting David Lee Brown from filing further pro se pleadings, motions, or petitions challenging his conviction and sentence in case number F94-21101.

ORDER TO SHOW CAUSE

Further, David Lee Brown has filed numerous postconviction appeals regarding his conviction and sentence in lower tribunal case number F94-21101. Our preliminary review of-those prior postconvietion proceedings evidences that David Lee Brown has engaged in the filing of appeals on claims that were successive, time-barred, or otherwise wholly without merit. We therefore order David Lee Brown, within thirty (30) days from the date of this order, to file a response and to show cause why this court should not prohibit him from submitting further pro se appeals, petitions, motions or other pleadings regarding case number F94-21101, unless such pleadings are signed by an attorney who is a duly licensed member of The Florida Bar in good standing.


author: WALLIS, J.

text:
    Jennifer L. PALMA, Appellant, v. JPMORGAN CHASE BANK, Nat’l Ass’n, et al., Appellees.
    Case No. 5D15-3358
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 2, 2016

      Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellant.
    Elliot B. Kula, W. Aaron Daniel, and William D. Mueller, of Kula & Associates, P.A., Miami, for Appellee, JPMorgan Chase Bank, N.A.
    No Appearance for Other Appellee.
   WALLIS, J.

Jennifer L. Palma (“Appellant”) appeals the final judgment of foreclosure in favor of JPMorgan Chase Bank, National Association (“Bank”). Appellant argues the trial court erred by denying her motion for involuntary dismissal due to Bank’s failure to comply with a condition precedent to foreclosure. We reverse and remand for entry of an involuntary dismissal.

In 1995, Appellant executed an adjustable-rate note secured by a Federal Housing Administration (“FHA”) mortgage for $61,900. The note specifically incorporated federal HUD regulations:

If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest. ... This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, “Secretary” means the Secretary of Housing and Urban Development or his or her desig-nee.

The HUD regulation at issue in this case provides, in pertinent part:

(b) The mortgagee must have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid. If default occurs in a repayment plan arranged other than during a personal interview, the mortgagee must have a face-to-face meeting with the mortgagor, or make a reasonable attempt to arrange such a meeting within 30 days after such default and at least 30 days before foreclosure is. commenced

24 C.F.R. § 203.604 (2013).

In March 2013, Bank filed a complaint to foreclose on Appellant’s mortgage. Appellant filed an answer in which she specifically denied Bank’s allegation that it performed all conditions precedent to foreclosure, stating: “Plaintiff failed to comply with the regulations of the Secretary of Housing and Urban Development including but not limited to the obligation to provide face-to-face counseling in 24 CFR 203.604(b).”

At trial, Bank called one witness, Karen Schell, a mortgage and research officer for Bank. Through Schell’s testimony, Bank introduced, and the trial court admitted, the original note, the original mortgage, and the loan payment history. After Bank rested, Appellant moved for involuntary dismissal, arguing Bank failed to comply with section 2Ó3.604 before filing its foreclosure complaint. Bank respondéd that Appellant must establish Bank’s alleged noncompliance with section 203.604 as an affirmative defense, and the trial court agreed.

Appellant recalled Schell, who testified that she did not know whether Appellant refused to participate in a face-to-face interview, stating she did not “have information on the interview.” However, Schell testified that it was Bank’s “practice to have face-to-face interviews on these loans.” Appellant testified that she would have participated in an interview, but Bank never offered her that opportunity. After Appellant rested, she renewed her motion for involuntary dismissal, arguing she established that Bank failed to comply with section 203.604. The trial court disagreed and granted judgment of foreclosure for Bank in the amount of $51,831.15.

We find that the trial court erred by requiring Appellant to raise Bank’s noncompliance with section 203.604 as an affirmative defense. While a plaintiff may plea a general satisfaction of all conditions precedent, a defendant’s corresponding “denial of performance or occurrence shall be-made specifically and with particularity.” Fla. R. Civ. P. 1.120(c). “A specific denial of a general allegation of the performance or occurrence of conditions precedent shifts the burden to the plaintiff to prove the allegations concerning the subject matter of the specific denial.” Sheriff of Orange Cty. v. Boultbee, 595 So.2d 985, 987 (Fla. 5th DCA 1992) (citing Fid. & Cas. Co. of N.Y. v. Tiedtke, 207 So.2d 40 (Fla. 4th DCA 1968), quashed on other grounds, 222 So.2d 206 (Fla. 1969); 1967 comments to Fla. R. Civ. P. 1.120(c)); accord Nelson v. Hillsborough Cty., 189 So.3d 1037, 1039 (Fla. 2d DCA 2016). This type of specific denial “is not an ‘affirmative defense,’ which relates only to matters of ‘avoidance.’ Rather, it is a special form of denial that must be pled with specificity.” Motor v. Citrus Cty. Sch. Bd., 856 So.2d 1054, 1056 n.1 (Fla. 5th DCA 2003) (Torpy, J., concurring) (citations omitted). The most common condition precedent in the mortgage foreclosure context lies in paragraph twenty-two of a standard mortgage, which requires the lender to send a default letter to the borrower before foreclosure. See, e.g., Colon v. JP Morgan Chase Bank, NA, 162 So.3d 195, 196 (Fla. 5th DCA 2015) (“Paragraph 22 of the mortgage creates a condition precedent that Bank must satisfy prior to accelerating the loan and commencing the foreclosure action.” (citation omitted)).

Though no Florida appellate court has held that section 203.604 constitutes a condition precedent to foreclosure, our court considered the issue in Diaz v. Wells Fargo Bank, N.A., 189 So.3d 279 (Fla. 5th DCA 2016). In Diaz, the borrowers specifically denied in their answer that the bank complied with all conditions precedent to foreclosure, including section 203.604. Id. at 283. However, our court focused on the fact that the borrowers’ note and mortgage did not specifically incorporate HUD regulations:

Unlike scenarios where conditions precedent are ascertainable on the face of a ■written contract, such as compliance with paragraph twenty-two of the mortgage or where a promissory note specifically incorporates the HUD regulations into its terms, it is by no means clear that the HUD regulations applicable to federally insured loans apply to the instant loan and litigation.

Id. at 284. Under these circumstances, our court held that when “it is unclear whether alleged conditions precedent apply, the burden is on the party asserting the existence of the conditions precedent to establish their applicability.” Id. at 285.

Here, unlike in Diaz, Appellant’s note and mortgage specifically incorporate HUD regulations. Cf. id. at 284. The facts of the case at bar clearly require compliance with HUD regulations, including the face-to-face interview requirement outlined in section 203.604 as a condition precedent to foreclosure. We find no meaningful reason to treat compliance with section 203.604 in an FHA mortgage differently than compliance with paragraph twenty-two in a standard mortgage, which our court has determined is a condition precedent to foreclosure. See Colon, 162 So.3d at 196. Appellant specifically denied in her answer that Bank complied with all conditions precedent, stating that Bank did not engage in a face-to-face interview as mandated by section 203.604. This shifted the burden back to Bank to prove at trial that it complied with this section. See Boultbee, 595 So.2d at 987. Bank wholly failed to meet its burden, providing no evidence that it engaged in a face-to-face interview before filing its foreclosure complaint. Bank additionally failed to demonstrate that any of the enumerated exceptions to the interview requirement applied. Accordingly, we reverse the final judgment of foreclosure and remand with instructions to enter an involuntary dismissal.

REVERSED and REMANDED with INSTRUCTIONS.

BERGER, J. and ORFINGER, M.S., Associate Judge, concur.

      . This section contains several exceptions to the interview requirement, none of which apply here. See 24 C.F.R. § 203.604(c)(l)-(5).

      . The trial court commented that it believed the law of the case doctrine controlled because a predecessor judge denied Appellant’s motion to dismiss, which similarly raised Bank’s noncompliance with section 203.604. We note that this doctrine applies only “to rulings on questions of law actually presented and considered on a former appeal.” Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla. 1983) (citation omitted). The trial court erred insofar as it relied on this ground for denying Appellant's motion for involuntary dismissal.

      . We are mindful of our supreme court's decision in Custer Medical Center v. United Auto Insurance Co., which explained that "a defending party’s assertion that a plaintiff has failed to satisfy conditions precedent necessary to trigger contractual duties under an existing agreement is generally viewed as an affirmative defense, for which the defensive pleader has the burden of pleading and persuasion.” 62 So.3d 1086, 1096 (Fla. 2010). However, Custer involved an insurer’s affirmative defense seeking to avoid liability for PIP payments due to the insured’s failure to attend a medical examination. Id. at 1090. Custer is distinguishable from the instant case because Appellant does not seek to avoid liability under the agreement; she argues that Bank prematurely filed suit before complying with all pre-foreclosure requirements. This case is more analogous to those in which the defendant specifically denied that the plaintiff performed all pre-suit notice requirements, which shifted the burden back to the plaintiff to address the subject matter of the denial. See Nelson, 189 So.3d at 1039; Boultbee, 595 So.2d at 987.


author: MORRIS, Judge.

text:
    SP HEALTHCARE HOLDINGS, LLC; ASC Holdings, Inc.; Dr. Rodolfo Gari, M.D.; Laurie Gari; Rodolfo Gari Jr. Grantor Retained Annuity Trust and Laurie Gari Grantor Retained Annuity Trust, Appellants/Cross-Appellees, v. SURGERY CENTER HOLDINGS, LLC; Armenia Ambulatory Surgery Center, LLC; Surgery Center Holdings, Inc.; and H.I.G Middle Markets, LLC, Appellees/Cross-Appellants.
    Case Nos. 2D14-3503, 2D14-4458
    District Court of Appeal of Florida, Second District.
    Opinion filed December 9, 2016

      Stacy D. Blank; Joseph H. Varner, III; Bradford D. Kimbro of Holland & Knight LLP, Tampa, for Appellants/Cross-Appel-lees.
    Sylvia H. Walbolt and Steven C. Dupre of Carlton Fields Jorden Burt, P.A., Tampa; Alan Rosenthal, Natalie J. Carlos, and Steven M. Blickensderfer of Carlton Fields Jorden Burt, P.A., Miami, for Appel-lees/Cross-Appellants.
   MORRIS, Judge.

SP Healthcare Holdings, LLC; ASC Holdings, Inc.; Dr. Rodolfo Gari; Laurie Gari; Rodolfo Gari Jr. Granted Retained Annuity Trust; and Laurie Gari Grantor Retained Annuity Trust (collectively referred to as the appellants) appeal a final judgment entered in favor of Surgery Center Holdings, LLC; Armenia Ambulatory Surgery Center, LLC; Surgery Center Holdings, Inc.; and H.I.G. Middle Markets, LLC (collectively referred to as the appellees) on certain claims and an order imposing sanctions on the appellees. The appellees cross-appeal the final judgment and sanctions order. The final judgment was rendered after a bench trial was held on the parties’ contract claims and after summary judgment was granted on the parties’ tort claims. We conclude, without comment, that the arguments raised by the appellants are without merit. However, we agree with the appellees that the trial court erred in calculating damages in the final judgment, in failing to award prejudgment interest on the liquidated damages, and in failing to award the appellees an offset of their costs and fees incurred in this litigation against amounts owing pursuant to the earnout note. Accordingly, we reverse the decision of the trial court on these issues. We conclude that we do not have jurisdiction to consider the appellees’ appeal of the sanction orders, and therefore dismiss that portion of this appeal.

I. FACTS

In 1996, Dr. Gari held a controlling interest in a pain relief center, an ambulatory surgery center, a surgery center, and an anesthesiology service, and by 2009, he held a controlling interest in eleven additional ambulatory surgery centers (collectively referred to as the Companies). In 2008, Dr. Gari learned that not all of the Companies’ patients’ claims were being paid in full by the patients’ health insurance providers. In spite of this, his employees were routinely closing out accounts after receiving only partial payments on the billed amounts. Upon learning of this practice, Dr. Gari changed the Companies’ collection practices by ensuring that no account was closed until reviewed by a supervisor, by requiring that staff review all accounts receivable (AR) every month, and by requiring that in-depth adjustments and analyses of the AR were conducted every quarter and at the end of the fiscal year. Dr. Gari also implemented a new billing policy which required the Companies to charge all insurers the same amount for the same service even though the contracts with various insurers provided for different payment caps.

In 2009, Dr. Gari decided to sell the Companies. Appellee H.I.G. Middle Markets, LLC (H.I.G.) initially offered $163,000,000 to purchase the Companies, but after reviewing the Companies’ records, H.I.G. became concerned with the AR. As a result, H.I.G. offered $100,000,000, which Dr. Gari rejected. Ultimately the parties settled on a purchase price of approximately $132,000,000, comprising $120,000,000 to Dr. Gari, $2,700,000 deposited into an escrow account, and a potential $10,000,000 earnout payment to Dr. Gari based on earnings from twelve months of post-sale operations. The parties executed an escrow agreement and an earnout payment promissory note along with the purchase agreement. The purchase agreement also included a warranty of the Companies’ audited financial statements for years 2006 through 2008 and the unaudited consolidated balance sheet, income statement, and cash flow statements for the first nine months of 2009 (ending on September 30, 2009).

The purchase agreement also included the following warranty of the Companies’ AR:

4.24 Receivables. All accounts receivable reflected in the Interim Financial Statements and all accounts receivable of the Companies, collectively, accrued since the date of the Interim Financial Statements (the “Receivables”), resulted from the bona fide sale of inventory or services by the Companies, collectively, or represent other bona fide obligations in favor of the Companies, collectively. The Receivables (in the aggregate) are not subject to any pending or, to Sellers’ knowledge, threatened defense, counterclaim, right of offset, returns, allowances or credits, except for payment discounts and contractual adjustments in the ordinary course of business except to the extent reserved against Receivables.

After the closing occurred on the purchase agreement, accountants at Grant Thornton, C.P.A.S, prepared the year-end financial statements on behalf of both the appellants and the appellees. The audit showed a net AR of $36,405,318 as of December 31, 2009. In 2011, Grant Thornton revised the 2009 audited financial statements. The revised net AR was adjusted to $22,370,287 — a reduction of $14,035,031.

On December 14, 2010, the appellees submitted a notice of claim to appellants for $4,365,557 which represented out-of-pocket losses due to refunds of overpay-ments from Blue Cross Blue Shield, Aetna, and CIGNA. The refunds were the result of the appellants billing the various insurance providers in excess of the contractually permitted rates.

In June 2011, the appellees submitted an indemnification notice to the appellants for the overstated AR. The appellees alleged that the net AR at the time of closing was overstated by $14,035,031 based on Grant Thornton’s revised audited financial statements for 2009. The appellees further alleged that the prior erroneous AR amount included accounts that had already been fully collected by the appellants prior to closing but not removed from the net AR. Based on the Companies’ performance, Dr. Gari would have been entitled to the earn-out payment. However, the appellees claimed they were entitled to offset the entire amount of the earnout against their indemnification losses and refused to release the escrow funds or pay the earnout pending resolution of their indemnification claims. The appellants rejected the appel-lees’ claims and litigation ensued.

The appellants sued the appellees for declaratory relief, specific performance of the purchase agreement, breach of contract for the appellees’ failure to release the escrow funds and pay the earnout note, bad faith, and fraudulent inducement. The appellees countersued the appellants for declaratory relief, breach of contract, and abuse of process. The trial court entered a case management order providing for a bench trial on the parties’ contract claims and a later jury trial on the parties’ tort claims. After the bench trial, the trial court entered its findings of fact and rulings of law and equity in a partial final judgment, determining that the appellees prevailed on their contract claim for overstated AR while the appellants prevailed on their claim to the full earnout payment. The trial court ordered that the appellees shall recover from the appellants $11,207,632. The trial court also ordered that, pursuant to the terms of the purchase agreement, the judgment shall be satisfied by first releasing to the appellees the funds currently held in escrow in the amount of $2,944,000, then off-setting the remaining amount due against the $10,000,000 note, leaving a balance due and owing to the appellants under the note in the amount of $1,736,368. The trial court denied the ap-pellees any prejudgment interest on the indemnification award.

Subsequently, the appellees moved for summary judgment on the appellants’ tort claims, arguing that those claims were barred as a matter of law as a result of the trial court’s findings on the breach of contract claims. The trial court agreed and entered summary judgment in favor of the appellees on the tort claims. Thereafter, the appellants filed a motion for sanctions against the appellees alleging that the ap-pellees engaged in egregious unethical behavior during the discovery phase of the litigation. A successor trial court judge agreed, imposed monetary sanctions against the appellees, and reserved on the proper amount. The trial court then entered a final judgment as to all claims. However, the final judgment omitted the $11,207,632 indemnification award ordered in the partial final judgment. Additionally, although the appellants, the appellees, and the successor judge agreed that both the partial final judgment and final judgment reflected an incorrect amount held in escrow, the trial court refused to correct the final judgment to reflect the correct amount. The final judgment did not award the appellees any prejudgment interest and prohibited the appellees from offsetting any prevailing party attorney’s fees and costs against any balance owed under the note.

II. ANALYSIS

A. The Final Judgment Contains Errors Which Must Be Corrected.

It is undisputed that in the partial final judgment rendered after the trial on the breach of warranty claim, the presiding judge ordered that the appellees shall recover damages in the amount of $11,207,632 from the appellants. This amount does not appear in the successor judge’s final judgment. It is also undisputed that the correct amount that was held in escrow was $2,701,264.30. The partial final judgment and final judgment erroneously state the escrow amount as $2,944,000 although the trial court was apprised of the error and asked to correct it.

The final judgment must be corrected to accurately reflect the amount due and owing to the appellants from the appellees. The correct escrow amount of $2,701,264.30 must be deducted from the judgment amount of $11,207,632, which results in a net amount of $8,606,367.70. When that amount is offset against the earnout promissory note of $10,000,000, as the presiding judge intended, there is a balance due from the appellees to the appellants of $1,493,633.30. The final judgment must be corrected accordingly. See, e.g., Plaza Builders, Inc. v. Regis, 502 So.2d 918, 921-22 (Fla. 2d DCA 1986) (acknowledging that a trial court’s findings and conclusions will not be disturbed if they are supported by competent, substantial evidence, but holding, in part, that the trial court’s computation of damages was erroneous and remanding for ■ a proper computation of damages); Javier v. Javier, 955 S.W.2d 224, 226 (Mo. Ct. App. 1997) (“A money judgment must specify with certainty the amount for which it is rendered, or if the amount is not stated, it must be ascertainable from the record to be enforceable by execution.” (citation omitted)).

B. The Appellees Are Entitled to Prejudgment Interest.

We. review a trial court’s denial of prejudgment interest de novo. See Wood v. Unknown Pers. Representative of Estate of Burnette, 56 So.3d 74, 76 (Fla. 2d DCA 2011). “The purpose of the award of prejudgment interest is to make the plaintiff whole from the date of the loss once the jury determines the defendant’s liability for damages and their amount. Once the jury sets the amount of damages to be awarded, the damages are retroactively considered liquidated damages, and the plaintiff is entitled to prejudgment interest back to the date that the damages were due.” Capitol Envtl. Servs., Inc. v. Earth Tech, Inc., 25 So.3d 593, 597 (Fla. 1st DCA 2009) (citing Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla. 1985)).

Florida has adopted the “loss theory” approach to prejudgment interest. Under this theory, “neither the merit of the defense nor the certainty of the amount of the loss affects the award of prejudgment interest.” May Plumbing Co., 474 So.2d at 215; see also Reimbursement Recovery, Inc. v. Indian River Mem’l Hosp., Inc., 22 So.3d 679, 682 (Fla. 4th DCA 2009); Berloni S.p.A. v. Della Casa, LLC, 972 So.2d 1007, 1012 (Fla. 4th DCA 2008). Instead, the theory presumes that “the loss itself is a wrongful deprivation by the defendant of the plaintiffs property [and thus the] [p]laintiff is to be made whole from the date of the loss once a [court] has determined the amount of damages and [the] defendant’s liability therefor.” May Plumbing Co., 474 So.2d at 215; see also Beach Terrace Ass’n, Inc. v. Wanda DiPaola Stephen Rinko Gen. P’ship, 27 So.3d 147, 148 (Fla. 2d DCA 2010); Fid. & Guar. Ins. Underwriters, Inc. v. Federated Dep’t Stores, Inc., 845 So.2d 896, 903 (Fla. 3d DCA 2003). Once liquidated damages have been determined, a trial court must award prejudgment interest. May Plumbing Co., 474 So.2d at 215; see also Summerton v. Mamele, 711 So.2d 131, 133 (Fla. 5th DCA 1998) (“[I]f a plaintiff establishes that [it] sustained out-of-pocket loss, prejudgment interest must be awarded from the date of the loss. The trial court has no discretion with regard to awarding prejudgment interest and must do so applying the statutory rate of interest in effect at the time the interest accrues.” (citing May Plumbing Co., 474 So.2d at 215)).

We recognize that prejudgment interest has not been awarded for breach of contract where a plaintiffs claims have involved mixed contract and tort claims. In Aetna Casualty & Surety Co. v. Langel, 587 So.2d 1370 (Fla. 4th DCA 1991), the trial court awarded the plaintiff prejudgment interest on a claim against an uninsured motorist. In reversing the decision of the trial court, the Fourth District explained that “although the [plaintiffs’] action was based upon a contract of insurance, it was still essentially one for the recovery of personal injury damages, and, accordingly, the [plaintiffs] were not entitled to pre-judgment [sic] interest.” Id. at 1374 (alterations in original) (quoting Cooper v. Aetna Cas. & Sur., 485 So.2d 1367, 1368 (Fla. 2d DCA 1986)). But in the case before us, the claims were for breach of warranty and for fraud based on the breach of warranty. Accordingly, once the liquidated damages had been determined, the trial court had no discretion not to award prejudgment interest.

C. The Appellees Were Entitled to Offset Their Fees/Costs Against the Note.

The final judgment in this case included the following language:

6. The Court reserves the right to enforce the terms of this Final Judgment if the Subordinated Promissory Note is not paid in full, according to its terms. Those payments may not be held to set-off against any potential attorney fee or cost awards reserved in this Final Judgment.

(Emphasis added.) However, section 6.7 of the parties’ agreement clearly provides otherwise:

6.7 Exclusive Remedy. ... [T]he first source of recovery and recourse for indemnification claims of the Buyers .,. related to this Agreement shall be from the recovery of amounts under the Escrow Agreement. ,.. In the event a Promissory Note is issued to the Sellers, then the Buyers shall have no recourse against the Sellers until no further amounts are held in escrow pursuant to the Escrow Agreement and all amounts due under the Promissory Note have been reduced to zero.... [Njothing in this Agreement ... shall limit or restrict any of the Parties’ right to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation.

(Emphasis added.) Moreover, section 7.1 of the agreement defines “losses” as follows:

7.1 Defined Terms. As used herein, the following terms shall have the following meanings: ... “Losses” means, with respect to any person, any actual damage, liability, demand, claim, action, cause of aetion, cost, deficiency, penalty, fine or other actual loss or out-of-pocket expense (including reasonable attorneys’ fees)....

(Emphasis added.) Indeed, section 5 of the promissory note provides for prevailing party attorney’s fees and expenses to the appellants for having to take action to enforce the note in judicial proceedings. Under the reciprocity provisions of section 57.106(7), Florida Statutes (2009), the ap-pellees are entitled to attorney’s fees and costs for having to defend the action. Additionally, section 6(a) of the promissory note provides that any payments for “fees and expenses permitted under Section 5 of the Note” must be paid before payment of “any unpaid principal amount of the Note.”

Accordingly, the language of the final judgment regarding setoff of the ap-pellees’ fees and costs against the note clearly contravenes the parties’ express intent on this issue. When the parties to a contract have selected language to express their intent and when that language is clear and unambiguous, as it is in this case, the court cannot rewrite the contract. See Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995). The final judgment should be corrected to reflect the parties’ expressed intent on this issue.

D. Sanctions

The successor judge in this case found that the appellees engaged in egregious conduct from the outset of the case which included their actions during the course of discovery proceedings. As a result, the successor judge entered an order finding that the appellants were entitled to their attorney’s fees as, a sanction against the appellees and reserving jurisdiction to determine the amount. The appellees appeal this order, but an order that only determines entitlement -to attorney’s fees and does not set the amount is a nonfinal and nonappealable order. Salem v. Abram, 868 So.2d 1213, 1214 (Fla. 2d DCA 2004); see also Garcia v. Valladares, 99 So.3d 518, 518 (Fla. 3d DCA 2011) (“Appellant, Maria Garcia, appeals from a [nonfinal] order finding entitlement to costs and attorney-fees .... Because the order, however, does not determine the amount of such fees or costs, the order is a [nonfinal], [nonappealable] order. Indeed, the order appealed reserves jurisdiction to determine the amount at a future hearing. We, therefore, dismiss the appeal for lack of jurisdiction.” (citations omitted)); Avis Rent A Car Sys., Inc. v. Newman, 641 So.2d 915, 915-16 (Fla. 3d DCA 1994) (“The instant order merely determined the entitlement to attorney’s fees without setting the amount. Accordingly, we dismiss the appeal without prejudice to allow Avis to appeal from the final order setting the amount of attorney’s fees, when entered.” (citations omitted)). Therefore, this court is without jurisdiction to consider the appel-lees’ challenge to the successor judge’s order determining entitlement, and accordingly, we dismiss that portion of the appel-lees’ appeal. See Salem, 868 So.2d at 1214 (affirming entry of final judgment, but dismissing portion of appeal challenging the trial court’s determination of entitlement to attorney’s fees).

III. CONCLUSION

The final judgment is hereby affirmed in part and reversed in part. The appellees’ appeal of the successor judge’s order finding that the appellants are entitled to attorney’s fees is dismissed, and this matter is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; dismissed in part; remanded.

KELLY and WALLACE, JJ., Concur.

      . The successor judge was appointed after the trial was completed.


text:
    Albert (Al) HADEED and Nathan (Nate) McLaughlin, Appellant, v. STATE of Florida, Commission on Ethics, Appellee.
    CASE NO. 1D16-724 & 1D16-725
    District Court of Appeal of Florida, First District.
    Opinion filed December 12, 2016
    Rehearing Denied February 2, 2017

      Mark Herron and Robert J. Telfer, III, of Messer Caparello, P.A., Tallahassee, for Appellant.
    C. Christopher Anderson, III, and Gray-den Paul Schafer of the Florida Commission on Ethics, Tallahassee, for Appellee.
   PER CURIAM.

Albert “Al” Hadeed, a county attorney, and Nathan “Nate” McLaughlin, a county commissioner, who were the targets of unsuccessful ethics complaints, appeal the Commission on Ethics’s denial of their requests for costs and attorney’s fees sought under section 112.317(7), Florida Statutes. We affirm.

I.

In June 2015, the Commission received a 187-page complaint from citizen John Ruf-falo, who claimed that Hadeed, as the attorney for the Flagler County Board of County Commissioners, had engaged in acts that violated state ethics laws. Soon thereafter, the Commission received a 34-page complaint from citizen Dennis McDonald that raised similar allegations against McLaughlin, a Flagler County Commissioner. Among others, an allegation common in both complaints was that Hadeed provided advice to McLaughlin and other board members, who accepted his recommendation that public funds be expended to pay for legal expenses to defend against litigation previously brought against the public officials and Hadeed.

The Commission rejected the two complaints as legally insufficient, finding neither established grounds for an ethics violation. The Commission, which summarized Ruffalo’s complaint as a “lengthy narrative and multiple attachments, much of which concerns officials or persons other than [Hadeed],” focused on Hadeed’s alleged failure to provide appropriate legal advice to the Board and his conduct in defending a lawsuit against the County. It concluded that the complaint “substantively fails to indicate a possible violation of Section 112.313(6), Florida Statutes, the only provision of the Code of Ethics even arguably applicable to it.” Specifically, the Commission found that Hadeed’s legal representation and advice to the Board was not inconsistent with his public duties; indeed, it was prudent action. Because none of the matters in Ruffalo’s complaint raised redressible matters, the complaint was dismissed. Likewise, the Commission dismissed the complaint against Commissioner McLaughlin as legally insufficient, finding his alleged conduct was not inconsistent with the proper performance of public duty.

Dismissal of the ethics complaints did not end the matter. Florida law provides for an award of costs and attorney’s fees against persons who file knowingly false ethics complaints against public officials and employees, provided certain parameters are met. The applicable statute, section 112.317(7), states in relevant part:

In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney fees incurred in the defense of the person complained against[J

§ 112.317, Fla. Stat. (2013). Pursuant to this statute, Hadeed and Commissioner McLaughlin sought costs and attorney’s fees, alleging the complaints were filed maliciously to injure their reputations via knowingly false allegations that were material to ethics violations. The Commission dismissed the fee requests as insufficient because, among other reasons, neither met the standards for showing that the allegations were material to an ethical violation. Stated differently, even if knowingly false allegations were maliciously made to injure Hadeed and McLaughlin, they were not “material” to any purported ethics violation. Hadeed and McLaughlin appeal the orders denying their fee requests.

II.

The central point we address in this consolidated appeal is the language of section 112.317(7), which requires that a complaint contain false statements that are “material to a violation” of the Ethics Code. As explained in Brown v. State, Commission on Ethics, 969 So.2d 553, 560 (Fla. 1st DCA 2007):

the elements of a claim by a public official for costs and attorney fees are that (1) the complaint was made with a malicious intent to injure the official’s reputation; (2) the person filing the complaint knew that the statements made about the official were false or made the statements about the official with reckless disregard for the truth; and (3) the statements were material.

The statute includes some language that is “the same as that used in the Sullivan case," id.- at 558, but the exacting requirements of the “actual malice” standard of that case are not applied. To the point, the statute also requires that the false allegations be “material” to an ethics violation to be actionable for costs and fees. Falsely calling someone a terrorist or child abuser is of no moment under section 112.317(7) unless the false allegation is “material” to a violation of Florida’s Code of Ethics.

Amidst the hundreds of pages of inflammatory, disparaging, and conclusory allegations in the complaints, the Commission found just three were material to possible ethics violations:

(1) Hadeed sought Board approval for a publicly-funded legal defense for Board members and himself;
(2) McLaughlin voted favorably for a publicly-funded legal defense for himself and others; and
(3) Hadeed was involved in defending a lawsuit involving the County.

The question then becomes whether these factual allegations—stripped of the tacked-on hyperbolic legal conclusions that accompany them in the complaints—are false. They are not. Hadeed does not deny seeking approval from the Board to procure a publicly-funded defense, as well as holding a vote on the matter. Nor does Hadeed deny participating in litigation involving the County. Likewise, Commissioner McLaughlin does not deny voting at the meeting as alleged. The Commission found that these actions were part of the officials’ duties and not ethical breaches. Accordingly, there are no false allegations of fact in the complaints that are material to a violation of the Code to support a request for costs and fees. Though we need not defer to the Commission’s interpretation of section 112.317(7), Brown, 969 So.2d at 557, we nonetheless find it supportable as applied in this case.

The statutory analysis stops here. Whether the disparaging language and desultory legal conclusions interspersed through the two tome-like complaints were maliciously intentional or knowingly false doesn’t matter legally under section 112.317(7); so long as the allegations are true and material, costs and fees are not recoverable. This result may seem odd. Hundreds of pages of inflammatory language in ethics complaints are directed at public officials, who prevail on the merits, but they can’t recover costs or fees against their tormentors? The answer is that the statute is narrowly-drawn and allows recovery only in very limited situations; it doesn’t permit recovery where knowingly false allegations are maliciously made to injure a public official’s reputation on matters immaterial to an ethics violation, at least in this context. Awards of costs and attorney’s fees are a matter of legislative grace and the dividing line the Legislature has drawn here does not extend to the actions of Ruffalo and McDonald in filing meritless ethics complaints; had they made a knowingly false allegation as to a material fact in an attempt to cause repu-tational harm, the statute would apply.

Finally, because the material factual allegations in the complaints are true, allowing amendment to Hadeed’s and McLaughlin’s cost/fee petitions would not change the result. For all these reasons, the Commission’s orders on the petitions for costs and attorney’s fees and the motions for leave to amend are AFFIRMED.

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

      . See New York Times Co. v. Sullivan, 376 U.S. 254,84 S.Ct. 710, 11 L.Ed.2d 686 (1964)


text:
    Gary Lynn SPROUSE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3235
    District Court of Appeal of Florida, First District.
    Opinion filed December 16, 2016
    Rehearing Denied January 26, 2017

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

After Gary Lynn Sprouse sexually abused a young woman with Down syndrome, a jury convicted him of sexual battery on an intellectually disabled person and lewd or lascivious battery on a disabled adult. On appeal, he argues that the trial court should have granted his motion for judgment of acquittal, that his two convictions violate double jeopardy, and that the trial court should not have allowed the State to introduce hearsay evidence of the twenty-year-old victim’s statements. We affirm.

I.

First, Sprouse’s boilerplate motion for judgment of acquittal was insufficient to preserve the issue for appeal. See Stephens v. State, 787 So.2d 747, 753 (Fla. 2001). Regardless, the State presented sufficient evidence to withstand a motion for judgment of acquittal. Among other things, the State presented the victim’s statements and DNA evidence showing Sprouse’s semen in the victim’s underwear. Viewing all the evidence in a light most favorable to the State, as we must, see Ibeagwa v. State, 141 So.3d 246, 246-47 (Fla. 1st DCA 2014), we find no error in denying the motion.

II.

We also reject Sprouse’s double jeopardy claim, which is foreclosed by State v. Drawdy, 136 So.3d 1209 (Fla. 2014). Double jeopardy principles do not prohibit separate convictions for multiple sexual offenses in one course of conduct. In Drawdy, for example, the Florida Supreme Court rejected the claim that double jeopardy precluded convictions for sexual battery and lewd or lascivious molestation. Id. at 1214 (“Drawdy was convicted of sexual battery for penetrating the victim’s vagina with his penis. He was convicted of lewd or lascivious molestation for intentionally touching the victim’s breasts in a lewd or lascivious manner during the vaginal penetration. These offenses are distinct criminal acts of a separate character and type.”). On this record, Sprouse has not met his burden of showing his multiple convictions violate double jeopardy. See Edwards v. State, 139 So.3d 981, 983 (Fla. 1st DCA 2014) (“Because Edwards has failed to demonstrate from the record that his two aggravated battery charges were based on a single act, he has failed to meet his burden to support a finding of double jeopardy.”).

III.

Finally, we turn to Sprouse’s hearsay argument. At trial, the victim and her mother both testified. The victim testified about what Sprouse did to her, and the mother testified about what the victim said Sprouse did to her. Sprouse argues that the mother’s testimony included inadmissible hearsay.

A.

The mother’s testimony unquestionably included hearsay — “out-of-court statements] offered to prove the truth of the matter asserted,” Lark v. State, 617 So.2d 782, 788 (Fla. 1st DCA 1993). The mother testified, for example, that the victim told her “[Sprouse] and [the victim] were in the bathroom and he put his private part to her private part.” That testimony was therefore admissible only if it satisfied one of the statutory hearsay exceptions. § 90.802, Fla. Stat. (2015).

Section 90.803(24), Florida Statutes, creates a hearsay exception for “out-of-court statements] made by an elderly person or disabled adult ... describing any act of abuse or neglect ... or sexual battery” under certain conditions. § 90.803(24)(a), Fla. Stat. (2015). Before the exception can apply, the court must “find[ ] in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” Id. § 90.803(24)(a)l. In addition, the State must give criminal defendants pretrial notice of its intent to rely on the exception. Id. § 90.803(24)(b). Finally, the exception applies only if the “[t]he elderly person or disabled adult is unavailable as a witness [and] there is corroborative evidence of the abuse or offense.” Id. § 90.803(24)(a)2.

B.

Before trial, the State filed a notice of its intent to rely on hearsay statements pursuant to this exception, and the trial court held a hearing. The State proffered the mother’s testimony, and the State and Sprouse presented argument for and against a finding of reliability. Ultimately, the trial court concluded that “the hearsay statements made by the alleged victim are reliable and will be admitted via the testimony of her mother.” Sprouse challenges that determination on appeal, but the trial court made sufficient findings to support its conclusion, and we find no abuse of discretion. Cf. Jones v. State, 728 So.2d 788, 790 (Fla. 1st DCA 1999) (noting that the trial court’s reliability determination under the hearsay exception is reviewed for an abuse of discretion).

C.

Sprouse alternatively argues that the mother’s hearsay testimony was inadmissible because the victim testified at trial and the exception only applies if the declarant “is unavailable as a witness,” see § 90.803(24)(a)2. Defending this argument on the merits, the State argues that notwithstanding the victim’s live testimony at trial, she was actually “unavailable” because of her disabilities: “[D]espite the fact that she testified at trial, the victim’s understanding of the questions posed and her ability to respond to them was so limited due to her varied mental limitations the victim was unavailable.” We cannot accept that tortured interpretation of “unavailable.” The Legislature has defined “unavailability as a witness,” § 90.804(1), Fla. Stat. (2015); see also § 90.803(24)(a)2, and it does not reach the circumstance in which a declarant testifies on the same subject as her hearsay statement. Because the victim in this case testified at trial, she was not “unavailable as a witness” for purposes of the hearsay exception.

We therefore consider the State’s preservation argument, which presents a closer question. Sprouse argued below that the hearsay was unreliable, but he never argued that the victim’s availability (or actual testimony) precluded application of the exception. Indeed, there was surprisingly little discussion below about the victim’s availability to testify. The State noted at the hearing that the exception would apply only if the declarant were unavailable. But in the same hearing, and immediately after the court ruled it would allow the mother’s testimony, the State acknowledged that the victim would testify, asking that the court partially clear the courtroom when the victim testified. Sprouse did not object then, he did not object when the victim actually testified, and he did not object when the mother testified about the hearsay evidence. Accordingly, Sprouse is left to rely on his arguments below regarding the hearsay statements' reliability.

Generally, “for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982). Sprouse seeks to avoid this general rule, arguing that under Neeley v. State, 883 So.2d 861 (Fla. 1st DCA 2004), his reliability argument below was sufficient. In Neeley, this Court explained that “[w]hen a party makes a hearsay objection, a trial court must consider all possible hearsay violations, exceptions, and exclusions.” Id. at 864 (citing Richardson v. State, 875 So.2d 673, 676 (Fla. 1st DCA 2004)). Thus, Sprouse argues, his reliability argument below was sufficient to preserve his unavailability argument here. Neeley does not reach that far.

Neeley and the decisions on which it relied all involve circumstances where an objection was raised on “hearsay” grounds. See id. at 863-64 (holding that hearsay objection was sufficient to preserve the issue of whether the business record exception or medical treatment exception applied); Richardson, 875 So.2d at 675-76 (holding that hearsay objection was sufficient to preserve the issue of whether the business records exception applied); Andrews v. State, 261 So.2d 497, 497-98 (Fla. 1972) (holding that hearsay objection was sufficient to preserve the issue of whether a predicate had been properly laid for impeachment purposes); see also State v. Crofoot, 97 So.3d 866, 868 (Fla. 1st DCA 2012) (holding that hearsay objections “need not specify the hearsay exception the objecting party will address on appeal,” and therefore “the State’s hearsay objection preserved its argument on appeal that the ‘statement against interest’ exception does not apply”). This case is different. In this case, the parties never disputed whether the statements were hearsay. Rather, they only argued whether the statements were sufficiently reliable to satisfy the section 90.803(24) reliability requirement. Sprouse’s reliability argument did not put the trial court on notice regarding any independent concerns about unavailability. See Castor v. State, 365 So.2d 701, 703 (Fla. 1978) (noting that the purpose of an objection is to “placet ] the trial judge on notice that error may have been committed, and provide[ ] him an opportunity to correct it at an early stage of the proceedings”). Had Sprouse raised the separate unavailability argument below, the issue might have been resolved then. Instead, Sprouse now asks for a retrial “with the attendant cost to the State, inconvenience to the witnesses, and trauma to the ... victim, on the basis of a deficiency which, if brought to the trial court’s attention, would have been timely cured.” See Sigmon v. State, 622 So.2d 57, 59 (Fla. 1st DCA 1993).

AFFIRMED.

WINOKUR, JAY, and WINSOR, JJ., CONCUR.

      . In Conner v. State, 748 So.2d 950, 960 (Fla. 1999), the Florida Supreme Court held the hearsay exception for elderly adults, as applied to criminal cases, violated the federal Confrontation Clause.

      . Section 90.803(24) was amended effective October 1, 2014 — -just weeks before the acts giving rise to this case. Before the amendment, the exception could apply even when the declarant testified — the statute required that "[t]he elderly person or disabled adult either: a. Testifies; or b. Is unavailable as a witness See Ch. 95-158, § 1, Laws of Fla. (emphasis added). However, "[i]or reasons that are unclear,” the Legislature decided "to delete the language stating that the exception was applicable if the declarant testified at trial.” Charles W, Ehrhardt, Florida Evidence § 803.24 (2016 ed.) (citing Ch. 2014-200, Laws of Fla.). The result was an awkward presentation; an exception applicable only when the declarant is unavailable, residing in a section titled "Hearsay exceptions; availability of declarant immaterial.” Despite the misleading title, the text of the provision is clear: the statutory exception applies only if the declarant is unavailable as a witness.

      . For instance, the State might have decided not to introduce the hearsay statements. Alternatively, the State might have elected not to call the victim as a witness and to seek a ruling that she was unavailable pursuant to section 90.803(24)(a)2.


author: LOGUE, J.

text:
    Susanne LOUNDIN, Appellant, v. BAYVIEW LOAN SERVICING, LLC, Appellee.
    No. 3D16-70
    District Court of Appeal of Florida, Third District.
    Opinion filed December 21, 2016.

      Pomeranz & Associates, P.A., and Mark L. Pomeranz (Hallandale), for appellant.
    Kass Shuler, P.A., and Melissa A. Giasi (Tampa), for appellee.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

In this appeal of a judgment of foreclosure entered after a trial, appellant’s first argument — that the Bank’s failure to specify a unit number on the letter sent to her constitutes a failure to meet the notice requirements — -was not raised below and cannot be raised for the first time on appeal. See, e.g., Krivanek v. Take Back Tampa Political Comm., 625 So.2d 840, 842 (Fla. 1993). Appellant’s second argument— that she was not properly served a copy of the complaint — was not properly preserved because she failed to provide a transcript of the hearing at which her motion to dismiss in this regard was denied or a transcript reflecting any evidentiary support for her argument in this regard. See, e.g., Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (noting that the burden is on the appellant to demonstrate error and without a transcript, the appellate court cannot conclude whether the trial court’s judgment is not supported by the evidence or alternative theory).

Affirmed.


author: COHEN, J.

text:
    Sara R. MACKENZIE and Ralph MacKenzie, Appellants, v. CENTEX HOMES, By Centex Real Estate Corporation, Sullivan Ranch Homeowners Association, Inc., and Board of Directors of Sullivan Ranch Homeowners Association, Inc., Appellees.
    Case No. 5D16-1254
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 22, 2016
    Rehearing and Rehearing En Banc Denied January 26, 2017

      Sara R. MacKenzie, Mount Dora, for Appellants.
    Ronald D. Edwards, Jr., and Matthew G. Brenner, of Lowndes, Drosdick, Doster, Kantor & Reed, Orlando, for Appellee.
   COHEN, J.

Sara and Ralph MacKenzie appeal summary final judgment entered in favor of Centex Homes, et al. (“Centex”) and the Board of the Sullivan Ranch Homeowners’ Association (“the board” or “the HOA”) on Count II of their complaint. The Mac-Kenzies seek a declaration that Centex failed to meet its obligation to make capital contributions to the HOA’s reserve accounts when it controlled the HOA along with $993,988 in resulting damages. The lower court entered summary final judgment in favor of Centex after it found that section 720.308(l)(b), Florida Statutes (2015), excused Centex from funding the reserve while it funded the deficit in the HOA’s current operating expenses. We disagree with the court’s interpretations of section 720.308 and find that section 720.303(6), Florida Statutes (2015), required Centex to continue funding the reserve accounts once they were established. We reverse the court’s entry of summary final judgment and remand for further proceedings.

The MacKenzies have lived in Sullivan Ranch since 2007. Sullivan Ranch consists of 692 residential lots divided into two sub-associations. The MacKenzies own a lot in the second sub-association, a fifty-five and older community. The lots in Sullivan Ranch are governed by the “declaration of covenants, conditions, and restrictions” and the second amendment (“the declaration”), which were drafted by Centex. Cen-tex was the developer of Sullivan Ranch and appointed the members of the board until December 2015 when the Board was turned over to the homeowners.

The MacKenzies filed the operative complaint, their fifth amended complaint, in April 2015 while the HOA was still controlled by Centex. They alleged three counts but only appeal summary judgment as to Count II. Count II alleged that Cen-tex failed to make capital contributions to the HOA’s reserve accounts as required by sections 8.2 and 8.6(b) of the declaration and subsections 720.303(6)(b),(d) and (f) of the Florida Statutes.

Centex contributed an initial $32,300 to the reserve funds in 2007. Centex later stopped contributing to the reserve funds although it continued to include a line item for reserve funds in the budget and collected reserve funds on the non-developer owned properties. Centex opted to pay Sullivan Ranch’s operating expenses in lieu of making any contributions to the reserve accounts and claimed that it had made no guarantee about funding the reserves. The MacKenzies allege the HOA is due approximately $993,988, and they seek a declaration that Centex was obligated to make capital contributions during the time it controlled the HOA.

Centex argues that the Mac-Kenzies lack standing to pursue their claim and that the lower court lacked jurisdiction over the action because the Mac-Kenzies had not met the requirements for seeking a declaratory judgment under section 86.011, Florida Statutes (2015). Centex has not filed a cross appeal; therefore, this Court has no jurisdiction over the standing issue. See Philip J. Padovano, Florida Appellate Practice § 23:9 at 483 (2011) (“In the absence of a cross appeal, the appellee may only defend the order of the lower court and may not seek affirmative relief from any part of the order.”). A cross appeal is the proper method to seek review of an earlier non-final order when the final order is entirely favorable to the appellee. See Fla. R. App. P. 9.130(g),(h); Allen v. TIC Participations Tr., 722 So.2d 260, 261 (Fla. 4th DCA 1998) (denying motion to dismiss cross appeal).

Regardless of a cross appeal, this Court has an independent obligation to ensure jurisdiction was proper. See Shannon v. Cheney Bros., Inc., 167 So.3d 397, 399 (Fla. 1st DCA 2015). Circuit courts have jurisdiction to “render declaratory judgments on the existence, or nonexistence: [ ] [o]f any immunity, power, privilege, or right ...,”§ 86.011, Fla. Stat. To obtain a declaratory judgment “the plaintiff must show a bona fide, actual, present, and practical need for the declaration.” Wilson v. Cty. of Orange, 881 So.2d 625, 631 (Fla. 5th DCA 2004) (quoting X Corp. v. Y Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993)).

Section 720.305, Florida Statutes (2015), provides any member of an HOA with the right to bring an action against the HOA or another member to “redress alleged failure or refusal to comply with [the HOA statutory provisions].” The declaration provides every property owner with a similar right. Centex argues that the MacKenzies have no right to a declaratory judgment as to the reserve funds because any recovery of such funds would flow to the reserve accounts of the HOA and not to the MacKenizes. Yet any increase in the reserve funds will make it less likely that special assessments will be required in the future — special assessments that would come directly from the MacKenzies and their heirs or assigns. Thus, we And the MacKenzies have a statutory and contractual right to enforce the declaration and a bona fide interest in the account. Jurisdiction is appropriate.

This Court reviews motions for summary final judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary final judgment is required where the pleadings and summary judgment evidence demonstrate that 1) there is no genuine issue of material fact, and that 2) the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). Issues of contract and statutory interpretation are reviewed de novo as they raise questions of law. See, e.g., State v. Daniels, 158 So.3d 629, 630 (Fla. 5th DCA 2014); Heylin v. Gulfstream Prop. & Cas. Ins. Co., 147 So.3d 659, 661 (Fla. 5th DCA 2014). When a statute is susceptible to only one reasonable interpretation, the plain language of the statute controls. Fla. Dep’t of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070, 1074 (Fla. 5th DCA 2011). Only where the plain language of a statute is ambiguous — where a reasonable person could find two different meanings leading to two different outcomes — will this Court resort to the tools of statutory construction. Fla. Dep’t of Transp. v. Clipper Bay Invs., LLC, 160 So.3d 858, 862 (Fla. 2015).

The Homeowners’ Association Act, which governs this action, “provide[s] procedures for operating homeowners’ associations, and [ ] protects] the rights of association members without unduly impairing the ability of such associations to perform their functions.” § 720.302(1), Fla. Stat. (2015). Centex argues that section 720.308(l)(b) excused it from funding the HOA’s reserve accounts. Section 720.308(l)(b) provides a developer the right to avoid paying its share of “operating expenses and assessments” on the lots the developer controls when it controls the board and elects to fund the difference between the assessments received from the lot owners and the “operating expenses incurred that exceed the assessments receivable.” § 720.308(l)(b), Fla. Stat. This is referred to as “deficit funding.” See In re Majorca Isles Master Ass’n, Inc., No. 12-19056-BKC-AJC, 560 B.R. 824, 838-39, 2016 WL 6157437 at *10 (Bankr. S.D. Fla. Oct. 21, 2016). Centex argues that by deficit funding the HOA, it was excused from any obligation to fund the reserve accounts.

Centex’s argument depends on an ambiguity in section 720.308(l)(b) — the subsection excuses a developer from paying its share of “operating expenses and assessments” if the developer funds the deficit in operating expenses. § 720.308(l)(b), Fla. Stat. The subsection is unclear as to whether the developer is excused from all other contributions, including contributions to the reserves, or if the developer is merely excused from paying the regular assessments on the properties. The declaration is, if anything, more ambiguous on this point as it specifically excludes contributions to reserves from the operating expenses without specifying whether Centex is liable for those expenses in addition to the operating deficit. Given this ambiguity, we turn to the tools of statutory construction to resolve this dispute.

The docteine of in pari materia requires that statutes related to the same subject be “construed together to harmonize the statutes and to give effect to the Legislature’s intent.” Deen v. Wilson, 1 So.3d 1179, 1182 (Fla. 5th DCA 2009). The Florida Supreme Court has specified that Florida courts have a duty to adopt constructions of statutes that harmonize provisions within the same act. Knowles v. Beverly Enterprise-Fla., Inc., 898 So.2d 1, 9 (Fla. 2004).

Section 720.303(6)(d) of the Homeowners’ Association Act requires an HOA to fund reserve accounts once they have been established. Section 8.2 of the declaration likewise requires the board of Sullivan Ranch to include a reserve fund in its budgeting, although it allows the board to exercise its “business judgment” in establishing the amount of such reserves. Under the declaration, reserve funds are required to be held in a separate account and to be used for “major maintenance, repair, or replacement of those assets covered by the reserve budget .... ” Although the statute allows an HOA that is liable for deferred maintenance to forego creating reserve accounts, it requires that the HOA’s budgets indicate that no reserves are being provided for by making a specific declaration in conspicuous font. § 720.303(6)(c)(l.), Fla. Stat. If reserve funds are provided for in the budget but no accounts are actually established, the statute requires that the failure to fund reserves be indicated in the budgets again using a conspicuous font. § 720.303(6)(e)(2.), Fla. Stat. The statute provides that the reserves may be reduced following a meeting and vote. § 720.303(6)®, Fla. Stat.

Centex argues that because assessments are defined broadly to include all monies owed to the HOA, an excuse from contributing “operating expenses and assessments” must include more than just the operating expenses — it must excuse the developer from paying the reserve contributions as well because reserve funds are monies owed to the HOA. Yet reading section 720.308(l)(b) to exhaust Centex’s funding requirements creates a direct conflict with section 720.303(6), which requires reserve accounts be funded once established or defunded according to a regular procedure with specific notice to the homeowners. The legislature’s requirement that changes to funding of the reserve accounts be conspicuously noted in the financial reports — reports which must be made available to all homeowners pursuant to section 720.303(7) — evidences an intent to keep homeowners aware of the state of reserve finances and to avoid allowing developers and boards to surprise homeowners with unexpected special assessments.

Reading section 720.308(l)(b) not to address the reserve accounts — leaving the original obligation to fund reserves in place — avoids a conflict with section 720.303(6) and ensures that the purposes of the sections are met, given that section 720.303(6) was specifically amended to provide for reserve accounts and avoid the need for special assessments. See Ch. 2007-173, Law of Fla. § 9. Moreover, it forces developers to comply with section 720.303(6) by either paying the reserve funds or waiving them at a proper meeting and noting the absence of reserve funds in a conspicuous location in the financial reports. Cf. Meritage Homes of Fla., Inc. v. Lake Roberts Landing Homeowners, 190 So.3d 651, 652-53 (Fla. 5th DCA 2016) (affirming order requiring developer to pay reserve funds based on the developer’s failure to follow proper procedures before waiving funds).

Here, the declaration provides for reserve accounts, and Centex made an initial contribution to the reserve fund in the amount of $32,300 before removing those funds. Thus, under section 720.303(6), Cen-tex is obligated to fund or maintain the reserves or vote to reduce or eliminate them and provide notice in the HOA’s financial reports. See § 720.303(6)(d), Fla. Stat.

Centex argues, alternatively, that section 720.303(6) affects only the budgeting for the reserves not the funding of such reserves. Although section 720.303(6) refers specifically to “budgeting,” that section also speaks of “funding” and maintaining in subsections (d) and (f). Those subsections unambiguously require that reserve accounts, once established, must be funded or waived by a vote of the members, and they provide no support for treating the obligation to budget as completely distinct from the obligation to fund.

The difficulty with Centex’s position is clear when considering the disclosure requirements of subsection 720.303(6)(c). Subsection (c) requires notice to homeowners when the budget does not provide funding for reserve accounts. § 720.303(6)(c), Fla. Stat. According to Centex, this is merely a requirement that a line item occur in the budget for “reserve accounts” and the question of whether the funds actually exist is immaterial. Under Centex’s interpretation, a board could completely defund the reserve accounts without notifying homeowners, provided it continued to include a tally of what the reserve accounts ought to contain. This interpretation is incorrect because the plain language of subsection (c) requires the HOA to notify homeowners if it fails to fund the reserve accounts established in the budget. See § 720.303(6)(c)(2.), Fla. Stat.

Mindful of this Court’s duty to construe statutory provisions as a whole where the plain language is ambiguous, we conclude that section 720.308(l)(b) should not be read to excuse a developer’s otherwise valid obligation to fund reserves while it controls the HOA. Therefore, we reverse the summary final judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

SAWAYA and EDWARDS, JJ., concur.

      . "Reserve accounts” are monies set aside for future capital expenditures and deferred maintenance of common areas. See § 701.303(6)(b), Fla. Stat. (2015). The goal of establishing reserves is to reduce the need for special assessments. Amy S. Thompson, Legislative Changes to Chapter 720: Homeowners Associations, Florida Statutes, Regular Legislative Session 2007 and 2008, 82 Fla. Bar J. 20, 22 (Dec. 2008).

      . Appellees have asked that summary judgment be affirmed as to the current board because they are not a proper party to this litigation. Even though this argument appears to have merit, the proper remedy for the board is to seek dismissal under Florida Rule of Civil Procedure 1.420(a)(1). See also Fla. R. Civ. P. 1.250(b).

      . Centex urges this Court to affirm the order for lack of standing under the tipsy-coachman doctrine. Yet lack of standing is not a proper tipsy-coachman argument because it would require the order on appeal be dismissed rather than affirmed. The tipsy-coachman doctrine only applies where the trial court “reaches the right result, but for the wrong reason.” Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (emphasis added).

      . See § 720.303(6)(d), Fla. Stat. (“Once established as provided in this subsection, the reserve accounts must be funded or maintained or have their funding waived in the manner provided in paragraph (f).”).

      . See § 720.301(1), Fla. Stat (2015) ("'Assessment' ... means a sum or sums of money payable to the association, ... which if not paid by the owner of a parcel, can result in a lien against the parcel.”).


author: LAGOA, J.

text:
    Derrick G. AMOS, Appellant, v. Alexander REICH, Appellee.
    No. 3D16-2670
    District Court of Appeal of Florida, Third District.
    Opinion filed December 28, 2016.
    Derrick G. Amos, in proper person.
    Paul Haralson P.A. and Paul Haralson, for appellee.
    Before WELLS, LAGOA and LOGUE, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Appellant, Derrick G. Amos (“Amos”), appeals from a final judgment of foreclosure. Appellee, Alexander Reich (“Reich”), moves to dismiss the appeal as untimely. We grant the motion to dismiss.

In his motion, Reich argues that this Court is precluded from exercising its jurisdiction over this appeal because the Notice of Appeal was not filed within thirty days of rendition. Florida Rule of Appellate Procedure 9.020(i) provides that “[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” An order is rendered when all of these three conditions are met. Reich incorrectly asserts that the order on appeal was “rendered” on October 17, 2016. While the trial court signed the written order on October 17, 2016, the order was not filed with the clerk until October 19, 2016. As such, the order on appeal was not rendered until October 19, 2016 — the date the order was filed with the clerk.

Notwithstanding Reieh’s miscalculation of the date of rendition, the motion to dismiss for untimeliness must be granted. Pursuant to Florida Rule of Appellate Procedure 9.110(b), an appeal from a final oi'der must be taken within thirty days of rendition of the order appealed. Because the order was rendered on October 19, 2016, the thirty-day period to file the Notice of Appeal fell on November 18, 2016. Amos, however, filed his Notice of Appeal on November 21, 2016. “Under Rule 9.110, the ‘[fjailure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.’ ” Rice v. Freeman, 939 So.2d 1144, 1145 (Fla. 3d DCA 2006) (quoting Miami-Dade Cty. v. Peart, 843 So.2d 363, 364 (Fla. 3d DCA 2003)).

Accordingly, the appeal is untimely and this Court lacks jurisdiction to entertain this appeal.

DISMISSED.


author: FERNANDEZ, J. SHEPHERD, J.

text:
    Lily ALVAREZ-MEJIA, Appellant, v. BELLISSIMO PROPERTIES, LLC and Vista Goebel, LLC, Appellees.
    No. 3D15-1258
    District Court of Appeal of Florida, Third District.
    Opinion filed December 28, 2016.
    Marin Eljaiek & Lopez, P.L., Anthony M. Lopez and Eric J. Strauss, for appellant.
    Cohen Law and Danielle A. Cohen, for appellees.
    Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
   FERNANDEZ, J.

Lily Alvarez-Mejia appeals from the trial court’s summary judgment order in favor of appellees Bellissimo Properties, LLC and Vista Goebel, LLC. We reverse the summary judgment because the trial eourt incorrectly found that there is no genuine issue of material fact as to the value of the property after repair and the cost of repair. The court also improperly weighed evidence and determined credibility when it granted the motion.

On November 2, 2006, EquityLink, Inc. loaned Alvarez $120,000 to purchase residential property. That same day, Alvarez-Mejia executed a mortgage and note granting EquityLink a security interest in the property. On December 8, 2006, Equi-tyLink assigned the mortgage to Bellissi-mo for $62,667 and to Bonita Properties, LLC for $57,333. Bonita then assigned all of its interest in the mortgage to Vista Goebel, LLC.

On December 22, 2011, a fire damaged the property, and Alvarez-Mejia filed a claim for her losses with the homeowner’s insurance carrier, Capitol Preferred Insurance Company, Inc. Capitol issued Alvarez-Mejia two checks totaling $94,162.52: one in the amount of $54,976.43, and the other in the amount of $39,186.09. The payees on both checks included Alvarez-Mejia, Marin, Eljaiek & Lopez, P.L. (the law firm that represents Alvarez-Mejia), Bellissimo, and Bonita.

• Bellissimo withheld the insurance proceeds pursuant to sections 5 and 11 of the mortgage, which provides that during the repair and restoration period, Bonita and Bellissimo “shall have the right to hold the insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender’s satisfaction.... ” Moreover, section 5 of the mortgage titled “Property Insurance” provides that:

Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender’s security is not lessened.... If the restoration or repair is not economically feasible or Lender’s security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower.

Bellissimo maintained that it was not economically feasible to repair the property based on an appraisal of the exterior of the home, which set the home’s value at $90,000, and a repair estimate from a licensed contractor for $98,717. Alvarez-Mejia relied on this repair estimate to obtain the $94,162.52 in insurance proceeds. Alvarez-Mejia later provided Bellissimo with a revised estimate for $53,117.

On August 15, 2013, Alvarez-Mejia filed a complaint against Bellissimo and alleged that she was unable to repair the property because Bellissimo failed to distribute the insurance proceeds. In response, Bellissi-mo filed a motion to dismiss, and Alvarez-Mejia subsequently amended her complaint. On November 11, 2014, Bellissimo filed a motion for summary judgment on all counts in the Amended Complaint, including: (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing, (3) Declaratory Judgment, and (4) Unjust Enrichment. Alvarez-Mejia filed a response in opposition to the motion for summary judgment along with two supplemental affidavits. The trial court granted summary judgment in favor of Bellissimo, and found that it was not economically feasible to repair the property because the cost to repair was greater than the value of the property. Alvarez-Mejia then filed a motion for reconsideration and rehearing. The trial court denied the motion.

The standard of review for summary judgment is de novo. Tropical Glass & Const. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009). Summary judgment is proper if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). It is the movant’s burden to establish that there is no genuine issue of material fact. Calarese v. Weissfisch, 87 So.3d 1225 (Fla. 3d DCA 2012). On review of a summary judgment, this Court must “consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.” Daneri v. BCRE Brickell, LLC, 79 So.3d 91, 93-94 (Fla. 3d DCA 2012).

We agree with Alvarez-Mejia that the trial court erred when it granted final summary judgment in favor of Bellissimo, as a genuine issue of material fact exists with respect to the value of the property after repairs. Bellissimo argued that it was not economically feasible to repair the property with the insurance proceeds because the initial estimate of $98,717 was greater than the exterior appraisal of the home, valued at $90,000. However, Alvarez-Mejia’s affidavit provides that it is economically feasible to repair the property because the value of the property with repairs will be significantly greater than the outstanding balance of the mortgage. The term “economically feasible” is undefined in the mortgage and is subject to different interpretations. In the instant case, summary judgment is precluded because Bellissimo did not provide an estimate of the value of the property after repairs, and therefore did not meet its burden of proof that no genuine issue of material fact exists.

Moreover, a genuine issue of material fact exists as to the cost of repairs to the property. In the motion for summary judgment, the parties relied on two different repair estimates to support their contention. Bellissimo relied on the initial estimate that Alvarez-Mejia signed and relied upon to obtain the insurance proceeds, while Alvarez-Mejia relied on the revised estimate that was significantly less than the insurance proceeds. Despite a conflict of material evidence, the trial court granted summary judgment in favor of Bellissi-mo.

It is clear that the trial court placed substantial weight on the initial estimate on the motion for summary judgment and disregarded the revised estimate. However, on a motion for summary judgment, the trial court must not weigh material conflicting evidence or pass upon the credibility of the witness. Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345 (Fla. 3d DCA 1999). See Jones v. Stoutenburgh, 91 So.2d 299, 302 (Fla. 1956) (holding that the trial court should not weigh evidence on the motion for summary judgment and should construe any evidence in controversy in favor of the non-movant). Only a trier of fact may weigh evidence and determine credibility — the court was without authority to weigh the evidentiary value of the conflicting estimates.

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

Reversed and remanded.

LAGOA, J., concurs.

SHEPHERD, J.

I respectfully dissent.

The question in this case is under what circumstances a lender may choose to apply the proceeds of a homeowner’s insurance policy to the debt due under the mortgage rather than to the repair or restoration of a home that has suffered a fire loss. The operative language of the mortgage reads as follows:

Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender’s security is not lessened... .If the restoration or repair is not economically feasible or Lender’s security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to the Borrower.

In other words, a lender is contractually bound by this provision to accede to the use of insurance proceeds received as a result of a covered property loss if two independent conditions are satisfied: (1) restoration and repair of the property is “economically feasible” and (2) the Lender’s security is not lessened as a result. On summary judgment, it therefore falls to the lender to demonstrate indisputably either that restoration and repair of the property is not economically feasible, or that the lender’s security will be lessened as a consequence of proceeding with the repair. I believe the lender met its burden on both of these grounds in this case. In addition, I believe the undisputed fact that the borrower was in default in this case long before the date of loss and has remained so constitutes a separate basis for affirmance.

On the first ground, the phrase “economically feasible” is undefined in the mortgage, and the parties provide no guidance to us as to its meaning. Electronically assisted research of all federal and state case law discloses just one case where a court has attempted to define the phrase. In Vongohren v. Citimortgage, Inc., JFM-14-3549, 2016 WL 739070, at *4 (D. Md. Feb. 25, 2016), Judge J. Frederick Motz of the United States District Court of Maryland reasoned to the following definition:

Feasibility is defined as “[t]he possibility that something can be made, done, or achieved, or that it is reasonable; practicability.” Feasibility, BLACK’S LAW DICTIONARY (10th ed. 2014). Because “economically” modifies “feasible” in the parties’ loan agreement, and defining “economically feasible” as simply “economically possible” has no limiting principle, the best interpretation of “economically feasible” is “economically reasonable” or “practicable.”

I find Judge Motz’ reasoning in this case to be persuasive. While it may be economically possible to repair the property in question, assuming Alvarez-Mejia was willing to advance the remainder of the funds in excess of the insurance proceeds to perform the repair on the property, I believe it is not “economically reasonable” or “practicable” to do so.

The following evidence was presented to the trial court on the issue of the economic feasibility of repair: (1) the mortgage showing the original $120,000 debt; (2) an estimate prepared by The Combined Group, dated November 12, 2012, signed by Alvarez-Mejia, of $98,717 to repair the fire damage; (3) an appraisal of the home commissioned by the lender, valuing the property at $90,000 after repairs; (4) an affidavit by Alvarez-Mejia in which she averred, without supporting facts, that “[o]nce repaired, the value of the [property will be significantly greater than the outstanding balance on the mortgage”; and (5) an affidavit by Alvarez-Mejia’s counsel’s office manager, attaching an unsigned estimate of repairs alleged to have been prepared by The Combined Group on April 11, 2013, stating the cost of repair to be $53,117.

The majority would have us believe the latter two affidavits together created a genuine issue of material fact barring summary judgment. However, the trial judge correctly found that they were legally insufficient for consideration. Alvarez-Mejia’s affidavit was properly excluded from consideration as conclusory opinion evidence. See Pla. R. Civ. Proc. 1.510(e) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”) Her conclusion that after repairs the value of the home will exceed the outstanding balance on the mortgage was an opinion on the ultimate issue to be decided in the case. See, e.g., Carter v. Cessna Fin. Corp., 498 So.2d 1319, 1320 (Fla. 4th DCA 1986) (“In short, a party does not create a fact question merely by placing his assertions in affidavit form.”); see also Fuentes v. Sandel, Inc., 189 So.3d 928, 935 (Fla. 3d DCA 2016) (upholding a trial court’s exclusion of an affidavit which only contained legal conclusions); Castro v. Brazeau, 873 So.2d 516, 517 (Fla. 4th DCA 2004) (determining “conclusion of one passenger that [defendant] had to be speeding based upon the crash damage to [plaintiff’s] vehicle was not competent evidence because passenger was not qualified as an expert”); compare McNabb v. Taylor Elevator Corp., 203 So.3d 184 (Fla. 2d DCA 2016) (finding expert’s conclusions as to duration of a leak sufficiently supported by observation and testing).

The second affidavit of counsel’s office manager and self-described records custodian, attaching a later dated repair estimate alleged to have been prepared by The Combined Group, is even more deficient. First, the repair estimate was ex-cludable as hearsay, “a statement other than one made by the declarant ... offered in evidence to prove the truth of the matter asserted,” § 90.801(1), Fla. Stat. (2016), because not introduced by The Combined Group’s .record custodian. § 90.802(6), Fla. Stat. (2016) (defining a business record as “[a] record ... of acts ,.. made at or near the time .... by a person with knowledge, if kept in the course of a regularly conducted business and if it was the regular practice of that business activity to make such memorandum, report [or] record.”) Additionally, the unsigned repair estimate was excluda-ble for lack of authentication. Nichols v. Preiser, 849 So.2d 478, 481 (Fla. 2d DCA 2003) (“Simply attaching documents that are not sworn or certified to a motion for summary judgment does not satisfy the procedural requirements of Florida Rule of Civil Procedure 1.510(e).”); Daeda v. Blue Cross & Blue Shield of Fla., 698 So.2d 617, 618 (Fla. 2d DCA 1997) (“Under our rules of civil procedure ... only competent evidence may be considered by the court in ruling upon a motion for summary judgment”); see also Freiday v. OneWest Bank, 162 So.3d 86 (Fla. 4th DCA 2014) (excluding default letter attached to motion for summary judgment but not otherwise authenticated). The second repair estimate allegedly came from the same company which prepared the first estímate which was submitted to the insurance company. A side-by-side comparison of the two estimates reveal only three differences; the contract dates, the amount for repairs, and the absence of Alvarez-Mejia’s signature on the later estimate. The details of the work to be performed are identical, and Alvarez-Mejia never provided an explanation as to the reason for the change in the cost to perform the same repairs.

Accordingly, accepting the repair estimate of $98,717 as the only accurate cost of repair and the property value estimated to be $90,000, it is neither “economically reasonable” nor “practicable” to expend $98,717 to obtain a $90,000 benefit in this case. See Vongohren at *5 (finding no genuine issue of material fact to exist where necessary repairs would cost $67,500 and add only $35,000 in value, especially where the borrowers are in default under their loan agreement).

As to the second ground, we only need to acknowledge that the insurance proceeds, when granted by the insurer, become part of the security for the loan. Accordingly, an expenditure for restoration or repair of a property which ends with a property value less than the amount expended constitutes, a fortiori, a “lessening” of the lender’s security. Parenthetically, it should be noted that a careful consideration of the language of the second ground in section 5 of the mortgage reveals it is not the post-repair adequacy of the security that is determinative of whether the lender’s security will be “lessened” by a repair or restoration, but rather the post-repair value of the security itself. In re Hill 2011 WL 6936357, at *12 (Bkrtcy.S.D.Tex. 2011)(noting the abiding interest of the lender during the course of loan is not the outstanding balance on the loan at any point in time, but rather “ensuring that the value of its collateral ... is maintained, if not enhanced”).

Finally, in a fashion very similar to the Vongohrens in their case, Alvarez-Mejia, in the case before us, defaulted on her mortgage loan long before the fire loss occurred to property, and there is no evidence in the record that she has brought the loan current. Although not raised by the parties or considered below, I would find this alone is sufficient, as a matter of law, to make repair economically unfeasible in this case. See Vongohren at *4.

For all of these reasons, I would affirm the decision of the trial court.

      . This estímate was submitted by Alvarez-Mejia to her insurer and netted the disputed $94,162.52 insurance proceeds being held by the lender.

      . Because the lender was denied access to the interior of the home, this appraisal was conducted from outside the home.