author: Per Curiam. Forst, J., specially concurring.

text:
    Vernson Edward DORTCH, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-2815 4D16-2816
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
    EN BANC
   Per Curiam.

Competency and the requisite procedure to address the issue lie at the heart of this appeal. The defendant appeals his judgment and sentence after entering a nolo contendere plea. He argues the trial court erred in failing to hold a competency hearing and failing to enter an order on the issue prior to accepting his plea. We agree and reverse.

The State charged the defendant with possession of a firearm by a felon, dealing in stolen property, and giving false information to a pawnbroker. His attorney filed a written motion for a competency examination, pursuant to Florida Rule of Criminal Procedure 3.210(b). The motion indicated there were "reasonable grounds to believe" the defendant was incompetent, but did not articulate specific facts concerning the defendant's mental state. The motion indicated the defendant waived the required twenty-day hearing.

The trial court granted the motion and appointed an expert. The order included language reiterating the defendant's waiver of the hearing. It does not appear that an examination or a hearing on competency ever took place.

While incarcerated, the defendant was later charged with a new crime of aggravated assault by a detainee with a deadly weapon and introducing contraband into a county detention facility. His attorney did not move for a competency evaluation in the new case.

The defendant entered an open plea to both cases nearly a year after his initial arrest. The trial court accepted the plea and sentenced the defendant to ten years in prison. The defendant did not move to withdraw his plea. He now appeals the judgment and sentence in both cases.

He argues the trial court erred in failing to conduct a competency hearing, relying on Samson v. State , 853 So.2d 1116 (Fla. 4th DCA 2003). There, we held "[a]n individual adjudicated incompetent is presumed to remain incompetent until [ ] restored to competence." Id . at 1116.

Over the last several years, we have reviewed multiple cases involving the issue of competency. See, e.g. , Bain v. State , 211 So.3d 139 (Fla. 4th DCA 2017) ; Williams v. State , 178 So.3d 531 (Fla. 4th DCA 2015) ; R.C. v. State , 157 So.3d 458 (Fla. 4th DCA 2015) ; Burns v. State , 884 So.2d 1010 (Fla. 4th DCA 2004). Depending on the facts, procedural posture, and arguments made, our dispositions have varied, possibly giving the appearance of inconsistency at times. We write to clarify the law in this area.

One thing is certain: competency requires strict adherence to the Florida Rules of Criminal Procedure 3.210 - 212.

Dougherty v. State , 149 So.3d 672, 677-78 (Fla. 2014) ; Deferrell v. State , 199 So.3d 1056, 1060-61 (Fla. 4th DCA 2016). Once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, it must hold a hearing, and it must enter a written order on the issue. See Fla. R. Crim. P. 3.210(b), 3.212(b). Failure to do so is fundamental error and requires reversal.

This means that to raise the issue of a failure to comply with Florida Rules of Criminal Procedure 3.210 - 212 on direct appeal, it is not necessary that a defendant first file a motion to withdraw plea under Florida Rule of Appellate Procedure 9.140(2)(A) in cases where the trial court has reasonable grounds to believe the defendant is incompetent and has ordered an examination. Indeed, the rules mandate a hearing and an order under such circumstances. This is true regardless of whether the defendant has previously been declared incompetent. This mandate does not apply however if the trial court had no reasonable grounds to believe the defendant is incompetent.

To require a criminal defendant, who may be incompetent, to file a motion to withdraw a plea before raising the issue on appeal is unwarranted. If a defendant is incompetent, confining him to post-conviction relief, without the assistance of counsel, is not a remedy designed to do justice.

We therefore recede from our prior decisions in Burns , Williams , and R.C. to the extent they conflict with our holding. We certify conflict with the First, Third, and Fifth District Courts of Appeal in Pressley v. State , 227 So.3d 573 (Fla. 1st DCA 2017), Garcia-Manriquez , and Hicks .

Reversed and remanded for further proceedings consistent with this opinion. The trial court may determine the defendant's competence nunc pro tunc if possible. Hawks v. State , 226 So.3d 892, 894-95 (Fla. 4th DCA 2017). If the trial court cannot do so, the judgment and sentence should be vacated and the case set for trial.

Reversed and Remanded .

Gerber, C.J., Warner, Gross, Taylor, May, Damoorgian, Ciklin, Levine, Conner, Klingensmith, and Kuntz, JJ., concur.

Forst, J., concurs specially with opinion.

Forst, J., specially concurring.

I join in the court's opinion to reverse and remand this case, on the basis that the trial court's failure to afford Appellant with a competency hearing constituted fundamental error. In doing so, we are breaking from our own precedent, and our decision conflicts with the position taken by both the Third and Fifth District Courts of Appeal (as well as two First DCA opinions). This specially concurring opinion is written with the goal of providing a more complete picture of the legal landscape with respect to this issue and this court's resolution.

At the time that Appellant entered his nolo contendere plea, he had not previously been adjudicated incompetent to stand trial. His judgment and sentence were entered following his plea, and he did not subsequently file a motion to withdraw plea prior to the instant appeal. Under similar circumstances ("reasonable grounds" to believe the defendant was incompetent, no prior adjudication of incompetence, a plea deal, no motion to withdraw), this court and others have found no fundamental error and affirmed the lower court's disposition or dismissed the appeal for lack of jurisdiction. See, e.g. , Burns v. State , 884 So.2d 1010, 1011 (Fla. 4th DCA 2004) (affirmed); Hicks v. State , 915 So.2d 740, 741 (Fla. 5th DCA 2005) (dismissed).

Recently, this court, in Bain v. State , 211 So.3d 139 (Fla. 4th DCA 2017), and Hawks v. State , 226 So.3d 892 (Fla. 4th DCA 2017), and our sister district courts in at least three recent opinions have, explicitly or implicitly, found fundamental error and reversed and remanded for a competency hearing, notwithstanding the lack of a previous adjudication of incompetence. These recent opinions provide the impetus to re-examine this issue and provide guidance to the courts for handling this issue in the future.

Factual Background

The pertinent factual background is presented in the court's opinion. Despite the trial court's ordering the appointment of an expert "for the purpose of determining competence," there is no indication an examination was ever scheduled by either party or the trial court, and the latter never held a hearing to determine Appellant's competency.

Legal Background

Appellant argues that, notwithstanding his failure to file a motion to withdraw his no contest plea to the two charges, this court should hold that the trial court reversibly erred by failing to conduct a competency hearing once it had "reasonable ground to believe that the defendant [wa]s not mentally competent to proceed." Fla. R. Crim. P. 3.210(b).

A. The Fourth DCA

In arguing that "Appellant is not foreclosed from relief because this appeal arrives from a judgment and sentence entered after an open plea," Appellant relies upon two opinions from this court that are factually distinguishable from the instant case as they involved defendants who had previously been adjudicated incompetent and there was no subsequent adjudication of competency prior to the defendant accepting a plea deal. In Samson v. State , 853 So.2d 1116 (Fla. 4th DCA 2003), we held that "[a]n individual adjudicated incompetent is presumed to remain incompetent until adjudicated restored to competence." Id. at 1116. Similarly, in Blackmon v. State , 23 So.3d 239 (Fla. 4th DCA 2009), we determined that, absent a competency hearing and a written order stating the defendant was restored to competence, the defendant "remained incompetent to proceed and his negotiated pleas and subsequent sentence must be reversed." Id. at 240.

By contrast, where the defendant had not previously been adjudicated incompe tent , but there were reasonable grounds to believe the defendant was incompetent, we have determined that, although "[a]n issue relating to the voluntary and intelligent nature of the plea falls within the limited class of issues which a defendant may raise on appeal from a guilty or no contest plea without having specifically reserved the right to do so," Burns v. State , 884 So.2d at 1013, "we do not deem such error 'fundamental' so as to obviate the need for filing a motion to withdraw in the trial court before attacking the voluntariness of the plea on appeal." Id. at 1014. We have followed this approach in other cases to affirm where, as distinct from Blackmon and Samson , the defendant had not previously been adjudicated incompetent. See Williams v. State , 178 So.3d 531, 532 (Fla. 4th DCA 2015) ; R.C. v. State , 157 So.3d 458, 458 (Fla. 4th DCA 2015).

As noted above, two recent opinions from this court run counter to the precedent whereby we reversed only in situations involving a prior finding of incompetence ( Samson and Blackmon ), and otherwise affirmed ( Burns , et al.). In Bain , the trial court failed to hold a competency hearing although it "had earlier ordered a competency evaluation." 211 So.3d at 139. We reversed and remanded for a determination whether a nunc pro tunc competency determination could be made. Id. In so doing, we failed to address the Burns approach and instead relied on the opinions in two cases that did not involve a plea- Deferrell v. State , 199 So.3d 1056 (Fla. 4th DCA 2016), and Dougherty v. State , 149 So.3d 672 (Fla. 2014). Bain , 211 So.3d at 139-40. We took similar action in Hawks , again citing cases that did not involve a plea (other than Bain ) and failing to reference or distinguish Burns and the fundamental error analysis discussed therein. Neither Hawks nor Bain involved a prior adjudication of incompetence.

B. The Third and Fifth DCAs

There are a handful of appellate cases from the Third and Fifth Districts wherein the court dismissed the appeal for lack of jurisdiction due to the defendant's failure to file a motion to withdraw plea. See Hanes v. State , 232 So.3d 1073, 1073 (Fla. 3d DCA 2017) ; Murphy v. State , 181 So.3d 574, 574 (Fla. 5th DCA 2015) ; Garcia-Manriquez v. State , 146 So.3d 134, 134 (Fla. 3d DCA 2014) ; Campos-Carriera v. State , 106 So.3d 483, 483 (Fla. 5th DCA 2013) ; Bailey v. State , 21 So.3d 147, 150 (Fla. 5th DCA 2009) ; Hicks , 915 So.2d at 741. There is one exception in the Fifth District's dismissal approach: in Anderson v. State , 79 So.3d 884 (Fla. 5th DCA 2012), the court issued a per curiam affirmance with a citation to Burns . There is also at least one Fifth District opinion where the court determined that a failure to find the defendant competent was fundamental error notwithstanding the defendant's failure to file a motion to withdraw plea. See Rumph v. State , 217 So.3d 1092, 1094-95 (Fla. 5th DCA 2017). However, as in Samson and Blackmon , the defendant in Rumph had been adjudicated incompetent prior to the plea. Rumph , 217 So.3d at 1095.

C. The Second DCA

There are several cases in the Second District in which the court has reversed and remanded or relinquished jurisdiction for the trial court to determine the competence of the defendant when a plea was accepted. However, prior to Carrion v. State , 235 So.3d 1051, 1053-54 (Fla. 2d DCA 2018) (relinquishing jurisdiction), it appears that all the Second District opinions involved a defendant who had previously been adjudicated incompetent. See Moulton v. State , 230 So.3d 934, 934 (Fla. 2d DCA 2017) ; Golloman v. State , 226 So.3d 332, 334 (Fla. 2d DCA 2017) ; Bylock v. State , 196 So.3d 513, 514-15 (Fla. 2d DCA 2016) ; Shakes v. State , 185 So.3d 679, 680 (Fla. 2d DCA 2016).

D. The First DCA

In both Lewis v. State , 190 So.3d 208, 209 (Fla. 1st DCA 2016), and Ross v. State , 155 So.3d 1259, 1260 (Fla. 1st DCA 2015), the First District found that the trial court erred in accepting the defendant's plea when there had been a prior adjudication of incompetency, and no subsequent adjudication of competency. However, in two other cases, the First District followed Burns in affirming the trial court's acceptance of a plea. Pressley v. State , 227 So.3d 573 (Fla. 1st DCA 2017) ; Williams v. State , 134 So.3d 975 (Fla. 1st DCA 2012). In both Pressley and Williams , there is no indication that the defendant had previously been adjudicated incompetent. Williams cites to Burns and Pressley cites to Williams .

In Sheheane v. State , 228 So.3d 1178 (Fla. 1st DCA 2017), and Reynolds v. State , 177 So.3d 296 (Fla. 1st DCA 2015), two cases that involved a plea-bargained judgment and sentence and the absence of a prior adjudication of incompetency , the First District reversed and remanded without attempting to distinguish its previous Pressley and Williams opinions that instead affirmed.

Analysis

A. There is no consistency nor acknowledgment of inconsistency

As detailed in the previous section, Florida appellate courts have generally taken two approaches to these cases, based on whether the defendant had been previously adjudicated incompetent. However, none of the opinions discussed above have acknowledged that there is such a distinction in treatment on appeal. In fact, in rendering an "against the grain" remand opinion in Reynolds , Sheheane , Bain , Hawks , and Carrion , the panels failed to acknowledge the conflict with previous opinions of their court or sister courts. For instance, our 2004 opinion in Burns failed to distinguish its affirmance holding from the remand holding in this court's 2003 Samson opinion, just as Blackmon failed to take note of Burns , and Bain and Hawks failed to acknowledge the contrary holding in Burns and 2015 opinions in Williams and R.C.

B. We have jurisdiction to consider this appeal

In joining the court in answering this question in the affirmative, I first address the court's jurisdiction to even consider this appeal, inasmuch as Appellant pled nolo contendere and failed to file a motion to withdraw plea. On this basis, the Third and Fifth District Courts have dismissed appeals for lack of jurisdiction. Section 924.051(4), Florida Statutes (2016), states, "If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence." However, the Florida Supreme Court has clarified that this provision does not pose a jurisdictional bar to appellate review and, absent fundamental error , district courts should summarily affirm even "clearly frivolous" appeals where the defendant pleaded guilty or nolo contendere. Leonard v. State , 760 So.2d 114, 119 (Fla. 2000). Accordingly, we have jurisdiction to consider the instant appeal.

C. Remand for a determination of competence is appropriate, even in the absence of a prior adjudication of incompetence

As reflected above, in every case that involved a plea of a defendant who had been previously adjudicated incompetent, the courts have reversed and remanded for a competency determination and/or a written order of competency, notwithstanding the defendant's failure to move to withdraw the plea. Either implicitly or explicitly, the courts in those cases have found fundamental error requiring remand to comply with the requirements of Rules 3.210-215. Thus, the question before us is whether it is any less of a fundamental error to fail to abide by Rules 3.210-215 in a case where, although there had not been a previous adjudication of incompetency, the trial court nonetheless "has reasonable ground to believe that the defendant is not mentally competent to proceed." Fla. R. Crim. P. 3.210(b).

" Florida Rules of Criminal Procedure 3.210 - 3.212 were enacted to set forth the required competency hearing procedures for determining whether a defendant is competent to proceed or has been restored to competency." Dougherty , 149 So.3d at 677 (emphasis added) (citing Mora v. State , 814 So.2d 322, 333 (Fla. 2002) ). Neither the Rule nor Dougherty distinguish the right to an initial competency hearing from the right to determine if the defendant "has been restored to competency."

"A defendant has a procedural 'due process right to an independent finding of competency' once a competency hearing is required." Carrion , 235 So.3d at 1053 (quoting Golloman , 226 So.3d at 335 ). "This right cannot be waived, and a trial court's failure to make such a finding constitutes fundamental error." Id. (quoting Golloman , 226 So.3d at 335, which in turn cited to Zern v. State , 191 So.3d 962, 965 (Fla. 1st DCA 2016) ). We may review the argument that the trial court erred in accepting Appellant's plea without conducting a proper competency hearing or issuing an order regarding his competency for the first time on direct appeal. Id. (citing Shakes , 185 So.3d at 683 ). In so doing, we have de novo review. Zieler v. State , 220 So.3d 1190, 1191 (Fla. 4th DCA 2017).

When dealing with a defendant who had previously been adjudicated incompetent, with no intervening adjudication (pursuant to Rule 3.210 ) of competence, the trial court must make "an independent legal determination regarding whether the defendant is competent, after considering the expert testimony or reports and other relevant factors." Shakes , 185 So.3d at 681 (citing Dougherty , 149 So.3d at 678 ). When there has been no prior adjudication of incompetency, as in the present case, the safeguards of Rule 3.210 are only invoked "[i]f defense counsel, the state, or the trial court has reasonable grounds to suggest that a defendant is not mentally competent to proceed, [in which case] the court must conduct a competency hearing." Mairena v. State , 6 So.3d 80, 85 (Fla. 5th DCA 2009) (emphasis added); see also Hawks , 226 So.3d at 893 ("Under Rule 3.210, 'once a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing.' " (quoting Monte v. State , 51 So.3d 1196, 1202 (Fla. 4th DCA 2011) ) ).

In the instant case, Appellant's attorney filed a motion under Rule 3.210(b) requesting a competency examination, stating there were "reasonable grounds to believe [Appellant was] incompetent to proceed." The trial court granted Appellant's motion (an implicit acknowledgment of "reasonable grounds"), and set a competency hearing, although there is no record of any such hearing or ruling on Appellant's competence.

The nature of competency goes to the heart of whether a defendant has the capacity to make a cogent, legally binding decision. To find, as the trial court did here, there were reasonable grounds to believe Appellant may be incompetent, and then allow that same potentially incompetent individual to waive his right to determine competency, does not comport with due process. This is a denial of due process, resulting in a fundamental error that requires our intervention despite Appellant's failure to preserve it below.

Sheheane , 228 So.3d at 1181.

Consistent with Sheheane , I agree with the decision to recede from Burns and its progeny. The failure to apply Rules 3.210-215 and take appropriate measures once the trial court "makes an initial determination that it has reasonable grounds to question the competency of a defendant," Hawks , 226 So.3d at 894, notwithstanding the absence of a prior adjudication of incompetence, constitutes fundamental error that can be raised on direct appeal from a judgment and sentence entered pursuant to a plea.

On remand, if the trial court finds Appellant was competent at the time of the plea hearing, it must enter a nunc pro tunc order, and the judgment and sentence need not change. Sheheane , 228 So.3d at 1181 (citing Zern , 191 So.3d at 965 ). "If, however, the court cannot make a retroactive determination or it finds Appellant was incompetent at the time of the hearing, the court must hold a new hearing [on the merits of the charge(s) ], so long as Appellant is presently competent." Id. ; see also Reynolds , 177 So.3d at 299 ("Should the trial court find, for whatever reason, that an evaluation of [a defendant's] competency at the time of the original trial cannot be conducted in such a manner as to assure [the defendant] due process of law, the court must so rule and grant a new trial." (alterations in original) (quoting Mason v. State , 489 So.2d 734, 737 (Fla. 1986) ) ).

Conclusion

The trial court failed to follow the "three step" procedure set forth in Hawks , in a case in which there were reasonable grounds to question the competency of Appellant. I thus join the court's opinion in concluding that this constitutes fundamental error requiring that we vacate the conviction and sentence and remand for further proceedings.

      Rule 3.210(b) provides:
      If, at any material stage of a criminal proceeding, the court ... has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing.
      Rule 3.212(b) provides: "The court shall first consider the issue of the defendant's competence to proceed. If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed."

      We note that we and other District Courts of Appeal have previously required the defendant to file a motion to withdraw a plea before pursuing the competency issue on appeal if the defendant had not previously been found incompetent. See Burns , 884 So.2d at 1012-13 ; Garcia-Manriquez v. State , 146 So.3d 134, 134 (Fla. 3d DCA 2014) ; Hicks v. State , 915 So.2d 740, 741 (Fla. 5th DCA 2005). The First and Second Districts have however reversed judgments and sentences on this issue even without a prior adjudication of incompetency. See Carrion v. State , 235 So.3d 1051 (Fla. 2d DCA 2018) ; Sheheane v. State , 228 So.3d 1178, 1179 (Fla. 1st DCA 2017).

      Anderson's plea was subsequently set aside due to the district court's determination that his trial counsel was ineffective for failing to timely file a motion to withdraw plea. Anderson v. State , 183 So.3d 1146 (Fla. 5th DCA 2015).

      In Vestal v. State , 50 So.3d 733 (Fla. 5th DCA 2010), the Fifth District determined that, per Hicks and Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii) c., it "lack[ed] jurisdiction to consider Vestal's argument with regard to the plea proceeding because Vestal did not file a motion to withdraw her plea with the trial court." Vestal , 50 So.3d at 735. In a footnote, the court cited to Samson and Blackmon in noting "[a]n individual adjudicated incompetent is presumed to remain incompetent until and unless adjudicated competent again after a hearing," and "had Vestal been adjudicated incompetent prior to the entry of the plea, the competency issue would have been cognizable on direct appeal without a motion to withdraw plea." Vestal , 50 So.3d at 735 n.2. This footnote is cited in opinions of the First (Ross ) and Second (Shakes ) Districts.

      In Hawks , we set forth "three steps" a court must take following an "initial determination that it has reasonable grounds to question the competency of a defendant." Hawks , 226 So.3d at 894.
      First, the court must enter an order that schedules a competency hearing, appoints experts to evaluate the defendant's competency, and satisfies the requirements of Rule 3.210(b)(4).
      Second, as required by Rule 3.212(b), the court must hold the scheduled hearing during which any party or the court may call the appointed experts to testify, and the parties may introduce any other evidence that has bearing on the defendant's competence.
      Third, the court must issue a written order making findings as to the competency of the defendant as is specifically required by Rule 3.212(b).
      Id. (footnote omitted).


source: Caselaw Access Project

author: Gross, J.

license: Public Domain

text:
    Joshua SARGEANT, Petitioner, v. STATE of Florida, Respondent.
    No. 4D17-3753
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Howard Finkelstein, Public Defender, and Sarah Sandler, Assistant Public Defender, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Joshua Sargeant challenges his prosecution in Broward adult circuit court for burglary of an unoccupied conveyance, a third-degree felony allegedly committed when he was fourteen years old. His case was transferred to adult court based on an unrelated and pending prosecution as an adult in St. Lucie County, which is in a different judicial circuit. He contends that, under section 985.557(3)(b), Florida Statutes (2017), transfer to adult court is authorized only if adult charges are pending in the same circuit. We reject this argument and deny prohibition.

The legislature has given subsection 985.557(3) a name-"EFFECT OF DIRECT FILE." Subsection 985.557(3)(a) implements the policy "once sentenced as an adult, always an adult." Subsection (a) provides that once a juvenile has "been transferred for criminal prosecution pursuant to an information and has been found to have committed the presenting offense or a lesser included offense," the juvenile "shall be handled thereafter in every respect as if an adult for any subsequent violation of state law, unless the court imposes juvenile sanctions under s. 985.565." (Emphasis added). The statute does not tie its impact to the same circuit where the juvenile was prosecuted and sentenced as an adult because adult treatment is mandated for "any" subsequent state prosecution.

Consistent with the treatment of a juvenile sentenced as an adult in subsection (3)(a), subsection 985.557(3)(b) describes the treatment of a juvenile "who is transferred for criminal prosecution as an adult" and who has other pending cases-the child must be prosecuted as an adult for all outstanding felony charges.

(b) When a child is transferred for criminal prosecution as an adult, the court shall immediately transfer and certify to the adult circuit court all felony cases pertaining to the child, for prosecution of the child as an adult, which have not yet resulted in a plea of guilty or nolo contendere or in which a finding of guilt has not been made. If a child is acquitted of all charged offenses or lesser included offenses contained in the original case transferred to adult court, all felony cases that were transferred to adult court as a result of this paragraph shall be subject to the same penalties to which such cases would have been subject before being transferred to adult court.

§ 985.557(3)(b), Fla. Stat. (2017) (emphasis added). Once again, the statute is not circuit-specific; transfer to "adult court" is required of "all felony cases," wherever their geographic location may be.

Applying the plain language of section 985.557, the transfer of the Broward case to adult court was authorized because of Sargeant's pending prosecution as an adult in St. Lucie County.

We reject the application of State v. A.C. , 714 So.2d 617 (Fla. 4th DCA 1998), and Medina v. State , 732 So.2d 1153 (Fla. 3d DCA 1999), because those cases construed the 1997 version of the statute, which was substantially different. The statute was amended to its current form in 1999. See Ch. 99-284, § 26, Laws of Fla.

A.C. involved juveniles who had committed offenses and were adjudicated delinquent before October 1, 1997, which is when the transfer provision in the statute first went into effect. The juveniles opposed transfer arguing that subjecting them to adult sanctions would increase the punishment for their offenses and violate ex post facto laws. 714 So.2d at 618. A.C. interpreted the 1997 statute and concluded that its "objective" was to have "all pending delinquency and criminal proceedings before the same court at the same time." Id.A.C. held that no ex post facto violation occurred because the only effect of the transfer provision was "to alter which division of the circuit court has jurisdiction of those pending dispositions." Id. at 619.

Similarly, Medina construed the 1997 version of the statute and believed that the purpose of transferring postadjudicatory juvenile cases to the adult court was to promote efficiency. 732 So.2d at 1155 ("The apparent intent of the statute is to promote efficiency by having all open juvenile cases transferred to the felony division handling the direct-filed cases."). Medina held that "[o]nce transferred, however, post-adjudicatory juvenile cases retain their juvenile status. The only effect is to alter which division of the circuit court is responsible for the pending cases." Id.

The effect of the 1999 amendment was to clarify that only felony cases, "which have not yet resulted in a plea of guilty or nolo contendere or in which a finding of guilt has not been made," would be transferred but that those cases lose their juvenile status. The transfer provision was amended as follows:

(b) When a child is transferred for criminal prosecution as an adult, the court shall immediately transfer and certify to the adult circuit appropriatecourt all felony preadjudicatorycases pertaining to the child, for prosecution of the child as an adult, which have not yet resulted in a plea of guilty or nolo contendere or in which a finding of guilt has not been made. If a child is acquitted of all charged offenses or lesser included offenses contained in the original case transferred to adult court, all felony cases that were transferred to adult court as a result of this paragraph shall be subject to the same penalties to which such cases would have been subject before being transferred to adult court that pertain to that child which are pending in juvenile court, including, but not limited to, all cases involving offenses that occur or are referred between the date of transfer and sentencing in adult court and all outstanding juvenile disposition orders. The juvenile court shall make every effort to dispose of all predispositional cases and transfer those cases to the adult court prior to adult sentencing. It is the intent of the Legislature to require all cases occurring prior to the sentencing hearing in adult court to be handled by the adult court for final resolution with the original transfer case.

Ch. 99-284, 26, Laws of Fla. (amending section 985.227(3)(b), Fla. Stat. (1997) ).

The amended statute makes clear that transferred cases regain juvenile status only if the child is acquitted in the original direct file case. The intent of the statute as amended is not simply to promote efficiency as was suggested in A.C. and Medina. Nelson v. State , 757 So.2d 622, 623-24 (Fla. 3d DCA 2000) (explaining that "the [1999] amendment simply clarified the legislative intent that when a juvenile commits an offense that qualifies for direct filing in the criminal division or otherwise qualifies for transfer for criminal prosecution in adult court, any felony charges for which the child has not yet entered a plea or where findings of guilt have not yet been made are to be transferred for prosecution as an adult.").

The plain language of the amended statute describes the state-wide effect of a direct file of adult charges against a juvenile. The transfer of felony cases, "which have not yet resulted in a plea of guilty or nolo contendere or in which a finding of guilt has not been made," to the adult court "for prosecution of the child as an adult" is not limited to felony cases pending within the same circuit. § 985.557(3)(b).

Petition for writ of prohibition denied .

Gerber, C.J., and Damoorgian, J., concur.

      Sargeant filed this case as a petition for writ of certiorari following a circuit court order denying his motion to dismiss. We elected to treat this case as a petition for writ of prohibition under Florida Rule of Appellate Procedure 9.040(c), based on case law recognizing that prohibition lies in disputes on the issue of jurisdiction between juvenile and adult divisions of the circuit court. See , e.g. , Alton v. Conkling , 421 So.2d 1108, 1110 (Fla. 5th DCA 1982) ; Robidoux v. Coker , 383 So.2d 719 (Fla. 4th DCA 1980) ; State ex rel. Register v. Safer , 368 So.2d 620 (Fla. 1st DCA 1979).

      The 1997 version of the statute provided:
      When a child is transferred for criminal prosecution as an adult, the court shall immediately transfer and certify to the appropriate court all preadjudicatory cases that pertain to that child which are pending in juvenile court, including, but not limited to, all cases involving offenses that occur or are referred between the date of transfer and sentencing in adult court and all outstanding juvenile disposition orders. The juvenile court shall make every effort to dispose of all predispositional cases and transfer those cases to the adult court prior to adult sentencing. It is the intent of the Legislature to require all cases occurring prior to the sentencing hearing in adult court to be handled by the adult court for final resolution with the original transfer case.
      § 985.227(3)(b), Fla. Stat. (1997).

      The statute was subsequently renumbered to its present location in 985.557(3)(b), Florida Statutes (2017), but the language remains the same.


author: Per Curiam.

text:
    Michael WALLACH, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-829
    District Court of Appeal of Florida, Fourth District.
    [April 4, 2018]
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Michael Wallach appeals his seventeen convictions and several of his sentences. We affirm his convictions without further discussion, but reverse five of his sentences and remand for resentencing.

First, the defendant argues that some of his sentences were orally pronounced to be concurrent with other sentences, but that the written sentences were imposed to run consecutively. The State concedes that the sentences imposed on the following counts should be reversed:

Oral Count Crime pronouncement Written Sentence 11 Aggravated Assault with a 20 years - 20 yrs.-consecutive Firearm on a LEO concurrent with any other sentence 20 years - 20 yrs.-consecutive 15 Aggravated Assault with a concurrent with Firearm any other sentence 1345 months - 1345 months-consecutive 16-17 Grand Theft (Motor concurrent with Vehicle and Firearm) any other sentence

The State's concession of error is well-taken. See Ashley v. State , 850 So.2d 1265, 1268 (Fla. 2003) ("[A] court's oral pronouncement of sentence controls over the written document."). On remand, the sentences imposed on Counts 11, 15, 16, and 17 should be corrected so the written sentence matches the court's oral pronouncement.

Next, the defendant appeals the minimum-mandatory sentence imposed on Count 10:

Count Crime per Information Min.-Man. Imposed 10 Burglary while armed with a firearm 10 years

Wallach was convicted of burglarizing a conveyance (a car) while armed with a dangerous weapon. This is a felony of the first degree. § 810.02(2)(b), Fla. Stat. (2012). The State argues that the ten-year mandatory minimum sentence imposed is legal because the defendant was armed with a firearm and his sentence was enhanced under the 10-20-Life statute. See § 775.087(2)(a)1., Fla. Stat. (2012) While burglary is one of the enumerated felonies under the statute, if a defendant is convicted of burglary of a conveyance , the minimum mandatory sentence under 10-20-Life is three years, not ten years. Id. ; see Figueroa-Montalvo v. State , 10 So.3d 173, 174-75 (Fla. 5th DCA 2009) ("The crime of burglary of a conveyance is ... listed as one of the charges to which the three-year mandatory minimum applies.). Because the 10-20-Life statute imposes only a three-year minimum mandatory sentence for the crime of burglary of a conveyance, the ten-year minimum mandatory sentence enhancement imposed here is illegal.

Finally, the defendant appeals the length of the sentence imposed on Count 15:

Count Crime per Information Sentence imposed 15 Aggravated Assault with a Firearm 20 years

Wallach was convicted of aggravated assault, a felony of the third degree. § 784.021(2), Fla. Stat. (2012). His sentence was reclassified to a felony of the second degree under the 10-20-Life statute because he used a firearm. § 775.087(1)(c). The maximum sentence for a felony of the second degree is fifteen years. § 775.082(3)(d). The twenty-year sentence imposed is illegal.

The State argues that the sentence is legal under the 10-20-Life statute because the defendant discharged the firearm during the crime. See § 775.087(2)(a)1. (providing for a twenty-year minimum term of imprisonment where there is a finding that the person discharged the firearm during the commission of the felony). We find that the twenty-year enhancement was improperly imposed here because the jury did not find that Wallach discharged the firearm during the aggravated assault charged at Count 15.

We reverse the sentences imposed on Counts 10, 11, 15, 16, and 17 and remand for resentencing as follows:

Count Crime Instructions on Remand 10 Burglary while armed Remand for resentencing for "burglary of a with a Firearm conveyance" while armed with a firearm. 11 Aggravated Assault with Remand for imposition of concurrent a Firearm on a LEO sentencing orally pronounced. (1) Remand for imposition of concurrent sentencing orally pronounced. 15 Aggravated Assault with (2) Remand for resentencing as a a Firearm reclassified second degree felony under the 10-20-Life statute with a maximum sentence of fifteen years. 16-17 Grand Theft (Motor Remand for imposition of concurrent Vehicle and Firearm) sentencing orally pronounced.

Reversed in part and remanded.

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


author: May, J.

text:
    Ronald N. DUBNER, Appellant, v. Frank FERRARO, Appellee.
    No. 4D17-1435
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2018]
    Daniel L. McDermott, Michele M. Thomas and Adrian P. Thomas of Adrian Philip Thomas, P.A., Fort Lauderdale, for appellant.
    Jane Kreusler-Walsh and Rebecca Mercier Vargas of Law Office of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, Gregory Coleman and Santo DiGangi of Critton, Luttier & Coleman, LLP, West Palm Beach, and Michael S. Singer of Comiter, Singer, Baseman & Braun, LLP, Palm Beach Gardens, for appellee.
   May, J.

A dispute over the assets of an estate and an order directing a non-party broker to remove its unilateral freeze of certain accounts brings this appeal to this court. One of the beneficiaries argues the order is defective on its face for failing to include required findings and the posting of a bond. He also argues the mandatory injunction is not supported by the evidence. We agree and reverse.

The family estate was originally created by the beneficiary's father and step-mother. Bradley Dubner (deceased) is the half-brother and Leslie Strupp is the half-sister of the beneficiary. Frank Ferraro is the personal representative of the Estate of Bradley Dubner.

The beneficiary filed three lawsuits in Palm Beach Circuit Court (trust, probate, and tort actions). He also filed an action in Broward Circuit Court (unjust enrichment, constructive fraud, tortious interference with a business relationship, exploitation of a vulnerable adult, and declaratory action) seeking to recoup approximately $100 million. He based the claims on the undue influence exercised by his half-siblings on their mother to alter her estate plan and to give them millions of dollars in inter vivos gifts. He included the broker as a defendant in the Broward case because it held accounts of his step-sister, step-brother, and other family entities.

Most of the brokerage accounts flowed through his step-mother's will or trust and are the subject of the Palm Beach cases. He also named as defendants two companies in which he previously held ownership interests, and four separate entities not parties in the Palm Beach cases.

After the Broward action was filed, the broker put a freeze on the accounts in dispute in the Broward case. The personal representative of the step-brother's estate filed an emergency verified motion for injunctive relief in the probate case in Palm Beach. He argued the broker's freeze was "tantamount to a prejudgment writ of attachment and [was] causing irreparable harm to all of the [d]efendants. The freezing of the accounts by [the broker] was done without notice, without due process, and without any legal support."

The broker unilaterally instituted the freeze of its accounts without a court order. However, the personal representative of his step-brother's estate claimed the beneficiary had "strong-armed [the broker] into keeping the accounts frozen." The half-siblings sought removal of the freeze or the posting of a $60 million bond.

The defendants claimed "irreparable harm" in the inability to access critical funds not subject of a court order. They claimed a likelihood of success on the merits because the beneficiary had not moved for injunctive relief. They claimed that allowing the broker to arbitrarily freeze client accounts would be a disservice to the public interest "as it would allow more frivolous filings of lawsuits simply naming different financial institutions in complaints as a method of securing prejudgment relief."

Alternatively, they argued the freeze allowed the beneficiary to obtain a prejudgment writ of attachment without having to meet statutory prerequisites. And, he did not post bond as required for prejudgment writs of attachment. § 77.031(3), Fla. Stat. (2017). They concluded, "equity dictate[d] that [the broker] should unfreeze the various [ ] accounts and doing so would greatly serve the public interest."

The trial court denied the request for an emergency hearing, but set the emergency motion for injunctive relief for hearing.

The broker filed a "submission" stating the beneficiary had emailed a demand that it freeze the accounts.

The beneficiary argued the defendants were seeking a temporary (mandatory) injunction without demonstrating irreparable harm. He argued they made a conclusory claim that they were being denied access to the funds, which were a small portion of the estate. He next argued there was an adequate remedy at law, and the injunctive relief action was merely an attempt to forum-shop in Palm Beach Circuit Court rather than proceed in seeking relief in the Broward Circuit Court where the case was pending.

The defendants responded that all pertinent contacts were located in Palm Beach County other than this brokerage account dispute. In fact, they had moved to transfer the Broward case to Palm Beach County.

After the hearing, the court ordered the broker to release any hold or freeze on the accounts. It granted the verified motion for injunctive relief, and denied the motion for rehearing. From the order granting injunctive relief, the beneficiary now appeals.

For temporary injunctive relief, a movant must demonstrate: (1) irreparable harm would result if the relief is not granted; (2) an adequate remedy at law is unavailable; (3) a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest. Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc. , 51 So.3d 1191, 1195 (Fla. 4th DCA 2011) (citing Foreclosure FreeSearch, Inc. v. Sullivan , 12 So.3d 771, 775 (Fla. 4th DCA 2009) ). The movant must also show a clear legal right to the injunction. McKeegan v. Ernst , 84 So.3d 1229, 1230 (Fla. 4th DCA 2012).

Florida Rule of Civil Procedure 1.610(c) governing injunctions provides:

Every injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.

We have often recognized that "a trial court reversibly errs when an order fails to make specific findings for each of the elements." Wade v. Brown , 928 So.2d 1260, 1262 (Fla. 4th DCA 2006). "Strict compliance with Florida Rule of Civil Procedure 1.610(c)... is required." Eldon v. Perrin , 78 So.3d 737, 738 (Fla. 4th DCA 2012). And, a bond is ordinarily required for a temporary mandatory injunction absent evidence of financial inability to maintain a bond, agreement of both sides, or any other recognized ground. See Tri-Plaza Corp. v. N.R. Field , 382 So.2d 330, 331 (Fla. 4th DCA 1980) ; Fla. R. Civ. P. 1.610(b).

The beneficiary argues the injunction is defective for failure to comply with the procedural and substantive requirements for temporary injunctions. The trial judge orally announced: "I'm ruling that the brokerage house have no freeze on it ... ; that there's not to be any freeze." There was no other oral explanation or findings. For failure to comply with Rule 1.610(c), we reverse the injunction. See Am. Learning Sys., Inc. v. Gomes , 199 So.3d 1076, 1082 (Fla. 4th DCA 2016).

The beneficiary next argues the injunction is defective for failure to include a bond in accord with the express requirements of Florida Rule of Civil Procedure 1.610(b). See Fla. High Sch. Athletic Ass'n. v. Rosenberg , 117 So.3d 825 (Fla. 4th DCA 2013). There, we reversed an injunction and remanded the case for imposition of a bond. Id. at 827.

The beneficiary also argues the defendants failed to meet the standard of proof for issuance of a temporary injunction: (1) irreparable harm; (2) lack of adequate remedy at law; (3) likelihood of success on the merits; and (4) that an injunction order is consistent with public policy.

And last, the beneficiary argues his procedural due process rights were violated by the trial court for allegedly failing to provide adequate notice of the hearing for temporary injunction after the request for an emergency hearing was denied.

We agree with the beneficiary on three of these points. Here, the trial court failed to make the requisite findings, and the defendants failed to demonstrate a substantial likelihood of success or irreparable harm. See Am. Learning Sys., Inc. , 199 So.3d at 1082. While the defendants argue the beneficiary waived the bond challenge, we disagree and see no basis for avoiding the bond requirement. See Fla. R. Civ. P. 1.610(b). However, we find no merit in the beneficiary's claim that the trial court violated his procedural due process rights.

We therefore reverse and remand the case to dissolve the mandatory injunction.

Reversed and Remanded.

Conner and Kuntz, JJ., concur.

      The personal representative of the half-brother's estate and the half-sister will be referred to collectively as defendants for ease of reference.

      The Broward Circuit Court has since transferred the case to Palm Beach County.


author: SLEET, Judge.

text:
    D.J.S., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-935
    District Court of Appeal of Florida, Second District.
    Opinion filed March 14, 2018
    Howard L. Dimmig, II, Public Defender, and Anthony C. Musto, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

D.J.S. challenges the trial court's juvenile disposition order in which the court found him guilty of the delinquent acts of burglary of an occupied dwelling and grand theft, withheld adjudication of delinquency, and placed him on probation for an indefinite period not to exceed his nineteenth birthday. Because the only evidence of the value element of the grand theft allegation was improperly admitted hearsay, we reverse the disposition order as to the finding that D.J.S. committed that delinquent act and remand for the grand theft to be reduced to second-degree petit theft.

The State's delinquency petition alleged that D.J.S. committed the delinquent act of grand theft of property with a value of more than $300 but less than $5000. See § 812.014(2)(c)(1), Fla. Stat. (2016). The only items reported missing from the home after the burglary were three bottles of liquor, a speaker, and a watch. To establish the value of the items, the State presented-over hearsay objections-the homeowner's testimony that he went online to "eBay or something" and determined that the aftermarket value of the items was $135 for the speaker and $64 for the watch. Such testimony was improperly admitted hearsay. See Phillips v. State, 141 So.3d 702, 705 (Fla. 4th DCA 2014) ("[T]he victim's reliance on hearsay evidence from websites resembles a witness's reliance on hearsay evidence from a catalog or contacts with non-witnesses [sic].").

As this was the sole evidence presented as to value, without it the State failed to present competent substantial evidence of that element of the grand theft allegation. See Council v. State, 206 So.3d 155, 156 (Fla. 1st DCA 2016) ("Because ... the value of the two stolen diamond rings was based solely on inadmissible hearsay, we hold that the State failed to introduce competent, substantial evidence showing that the value of the stolen property exceeded [the value alleged in the charge]."). And where there is no competent evidence of value presented, the value is deemed to be an amount less than $100. See § 812.012(10)(b) ("[I]f no ... minimum value [of the property] can be ascertained, the value is an amount less than $100.").

Accordingly, the finding of guilt as to the grand theft must be reduced to one for second-degree petit theft. See Contes v. State, 190 So.3d 198, 199 (Fla. 3d DCA 2016) ("Because the evidence failed to establish the fair market value of the property at the time of the offense, [the defendant] can be convicted only of second-degree petit theft."). As such, we reverse the trial court's disposition order to the extent that it found D.J.S. guilty of the delinquent act of grand theft and remand for that finding to be reduced to second-degree petit theft. On remand, the trial court shall conduct a new disposition hearing to reconsider-in light of the reduced offense-its prior imposition of probation for an indefinite period not to exceed D.J.S.'s nineteenth birthday; D.J.S. has a right to be present at the hearing. See Y.R. v. State, 226 So.3d 1008, 1009 (Fla. 3d DCA 2017).

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

VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Mary BAKER and Janet Thornton, Appellants, v. ECONOMIC RESEARCH SERVICES, INC., Appellee.
    No. 1D16-4139
    District Court of Appeal of Florida, First District.
    March 22, 2018
    Christopher C. Marquardt of Alston & Bird LLP, Atlanta, Georgia, and Claire A. Duchemin of Claire A. Duchemin PA, Tallahassee, for Appellants.
    Albert T. Gimbel and Robert J. Telfer III of Messer Caparello PA, Tallahassee, and John P. Leonard and Alfred R. Brunetti of McElroy, Deutsch, Mulvaney & Carpenter, LLP, Morristown, New Jersey, pro hac vice, for Appellee.
   Per Curiam.

Economic Research Services, Inc., (ERS) sued former employees Mary Baker and Janet Thornton. Baker and Thornton moved to dismiss, arguing they were sued in the wrong venue. The trial court denied their motion, and Baker and Thornton appeal. We reverse because of an agreement that venue for certain claims would lie only in Delaware.

I.

Baker and Thornton once worked for ERS. In 2015, they resigned and started working for an ERS competitor, Berkley Research Group, LLC (BRG). Soon after, ERS sued Baker, Thornton, and BRG in Leon County Circuit Court, alleging that the three engaged in "predatory acts" designed to harm ERS's Tallahassee office. The complaint asserted both contract and tort claims. It alleged Baker and Thornton violated non-compete provisions and restrictive covenants contained in the parties' written agreements. There were three agreements at issue: a 2007 Members Agreement, a 2011 Stockholder Agreement, and a 2015 compensation plan. The 2007 and 2011 agreements had forum-selection clauses, but ERS argued those clauses were no longer in force and that their enforcement would be "unjust, unreasonable and violative of the express terms of the agreements."

The defendants moved to dismiss. They contended the claims against Baker and Thornton based on the 2007 and 2011 agreements failed because the 2015 compensation plan superseded those agreements, rendering them void. Alternatively, the defendants contended that if the 2007 and 2011 agreements remained in force, the forum-selection clauses precluded litigation in Florida. In response, ERS presented three arguments. First, ERS argued the forum-selection clauses had not survived the termination of the agreements. Second, ERS claimed that the venue issue was not yet ripe because if the 2015 compensation plan controlled (as the defendants alleged), it superseded the 2007 and 2011 agreements altogether, including their forum-selection clauses. Finally, ERS argued that its complaint raised claims unrelated to the 2007 and 2011 agreements, meaning the forum-selection clauses would not apply even if they remained in force.

The trial court issued a short order denying the motion to dismiss. The court said it accepted all the complaint's allegations as true, but it offered no discussion of the forum-selection clause issue. Baker and Thornton appeal.

II.

Contracting parties have the right to select the forum for prospective disputes. Land O'Sun Mgmt. Corp. v. Commerce & Industr.Ins. Co. , 961 So.2d 1078, 1080 (Fla. 1st DCA 2007) (citing Mgmt. Comput.Controls, Inc. v. Charles Perry Constr., Inc. , 743 So.2d 627, 631 (Fla. 1st DCA 1999) ). And courts must enforce forum-selection agreements unless they are "shown to be unreasonable or unjust." Id. (citing Manrique v. Fabbri , 493 So.2d 437, 440 (Fla. 1986) ). Aggrieved parties may appeal nonfinal orders that concern venue, Fla. R. App. P. 9.130(a)(3)(A), so they can avoid being "forced to litigate the entire controversy in the wrong forum." Mgmt. Comput.Controls, Inc. , 743 So.2d at 630.

Everyone agrees that the 2007 and 2011 agreements contained mandatory forum-selection clauses, in which the parties "irrevocably and unconditionally consent[ed]" to "exclusive jurisdiction" in Delaware courts for any litigation "arising out of or relating" to the agreements. And everyone agrees that the 2007 and 2011 agreements are no longer in force. The principal question on appeal is whether the forum-selection clauses survived after the agreements terminated. We conclude that they did.

Unlike the substantive rights and obligations in a contract, a forum-selection clause is a structural provision that addresses the procedural requirements for dispute resolution. See Silverpop Sys., Inc. v. Leading Mkt. Techs., Inc. , 641 Fed.Appx. 849, 857 (11th Cir. 2016) ("While contractual obligations may expire upon the termination of a contract, provisions that are structural (e.g., relating to remedies and the resolution of disputes) may survive that termination."). "Generally, dispute-related provisions, such as forum-selection clauses, are enforceable beyond the expiration of the contract if they are otherwise applicable to the disputed issue and the parties have not agreed otherwise." U.S. Smoke & Fire Curtain, LLC v. Bradley Lomas Electrolok, Ltd. , 612 Fed.Appx. 671, 672-73 (4th Cir. 2015).

This court has held that an arbitration provision does not require any type of "savings clause" to survive termination of the contract. Auchter Co. v. Zagloul , 949 So.2d 1189, 1194 (Fla. 1st DCA 2007). The Auchter holding is applicable to forum-selection clauses as well. If the parties wanted the forum-selection clauses to apply only during the life of the contracts, they could have explicitly stated so. See id. ("Because post-termination disputes are not expressly excluded from the scope of the dispute resolution provisions of the contract, we must construe them as intended to be included."). Instead, the clauses note that the parties "irrevocably and unconditionally" consent to submit to Delaware jurisdiction for "any" actions, suits, proceedings, or litigation arising out of or relating to the agreements. Because "any" means "all," Anders v. Hometown Mortg. Servs., Inc. , 346 F.3d 1024, 1028 (11th Cir. 2003) (citing Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1186 (11th Cir. 1997) ), the forum-selection clauses apply to all disputes related to the contracts, whether those disputes arose before or after termination of the contracts. See Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers Union, AFL-CIO , 430 U.S. 243, 255, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977) ("[T]he parties' failure to exclude from arbitrability contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship.").

In arguing that the forum-selection clauses terminated when the rest of the contracts did, ERS relies on the Third District's opinion in DVDPlay, Inc. v. DVD 123 LLC , 930 So.2d 816 (Fla. 3d DCA 2006). In that case, contracting parties agreed their disputes would be litigated in California. Id. at 817. One party nonetheless sued in Florida, and the other party invoked the forum-selection clause. Id. The trial court found the defendant's repudiation of the agreement meant it could not enforce the forum-selection clause. Id. The Third District reversed, finding that the forum-selection clause "clearly was intended to survive the termination of the contract." Id. at 819. In doing so, the court noted the agreement's survival provision, which specifically stated the forum-selection clause would survive the expiration and/or termination of the agreement. Id. Based on that, ERS argues that a forum-selection clause will not survive the agreement's termination unless the agreement specifically says so. But that argument overstates DVDPlay 's holding. The Third District did not create a per se rule; it merely found that the forum-selection clause survived termination, citing the survival provision as clear evidence of the parties' intent. A forum-selection clause can survive an agreement's termination even without an explicit survival provision. See TriState HVAC Equip., LLP v. Big Belly Solar, Inc. , 752 F.Supp.2d 517, 536 (E.D. Pa. 2010)amended on other ground on reconsideration , No. 10-1054, 2011 WL 204738 (E.D. Pa. Jan. 21, 2011) ("The exclusion of the forum-selection clause from the 'survival' clause-which, as a general matter, is intended to ensure the survival of certain contractual provisions that might otherwise be extinguished upon termination of the agreement-simply does not evidence a clear intent that, upon termination of the agreement, the forum-selection clause would cease to apply to claims arising under the agreement.").

III.

Having determined that the forum-selection clauses survived the agreements' terminations, we must next decide whether the clauses covered the disputes at issue. In its complaint, ERS sought declaratory relief as to what governed Baker and Thornton's post-employment obligations: the 2007 and 2011 agreements or the 2015 compensation plan. ERS now argues that we should affirm because there is a live dispute as to which agreement governs the parties' relationship. ERS contends that if the 2015 compensation plan controls, as Baker and Thornton maintain, then the forum-selection clauses in the 2007 and 2011 agreements would be inapplicable. ERS therefore suggests that before the case could be dismissed for improper venue, the trial court must first determine which contract applies. We disagree.

The 2007 and 2011 agreements required that any dispute arising out of or relating to the agreements be resolved in Delaware. The declaratory-judgment action seeks to determine if the 2007 and 2011 agreements remain in force, an action that unquestionably relates to or arises out of those agreements. The declaratory-judgment count therefore falls within the scope of the forum-selection clauses. The trial court should have dismissed that count for improper venue.

IV.

The remaining issue is whether the trial court also should have dismissed the rest of ERS's claims. In addition to the declaratory-judgment claim, ERS raised breach-of-contract claims relating to the 2007 and 2011 agreements, along with claims for breach of common law fiduciary duty, breach of duty of good faith and loyalty, unfair competition, intentional interference, and civil conspiracy. ERS argues that even if the forum-selection clauses remain enforceable, its entire complaint against Baker and Thornton should not be dismissed because the complaint raises claims independent from the contractual claims-claims that do not arise out of or relate to the contracts.

When determining whether an agreement's forum-selection clause applies to non-contractual claims, courts have considered whether there is a "significant and obvious nexus" between the claims and the agreement. Farmers Grp., Inc. v. Madio & Co., Inc. , 869 So.2d 581, 582 (Fla. 4th DCA 2004). In Jackson v. Shakespeare Foundation, Inc. , 108 So.3d 587 (Fla. 2013), the supreme court considered this issue in the context of arbitration clauses, noting that:

A "significant relationship" between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a "contractual nexus" between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties' unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.

Id. at 593 (citations omitted).

Because the trial court never determined whether the breach of common law fiduciary duty, breach of duty of good faith and loyalty, unfair competition, intentional interference, and civil conspiracy claims arose out of or related to the agreements, we conclude we should remand for the trial court's determination in the first instance. If the court concludes that any of the above claims are not significantly related to the 2007 or 2011 agreement, those claims may proceed below. See Seifert v. U.S. Home Corp. , 750 So.2d 633, 642 (Fla. 1999) (concluding common law negligence action did not bear a significant relationship to a contractual agreement and, therefore, the agreement's arbitration provision did not require the tort claim be arbitrated). Any remaining claims (along with the breach-of-contract claims and declaratory judgment action) may not.

REVERSED and REMANDED .

Winsor, J., and Brown, John T., Associate Judge, concur; Makar, J., concurs in part and dissents in part with opinion.

Makar, J., concurring in part, dissenting in part.

I agree with much of the court's analysis, but I would allow the trial court to adjudicate ERS's declaratory judgment claim, which seeks to determine whether the 2015 agreements govern the post-employment obligations of Baker and Thornton. See United Services General Life Co. v. Bauer , 568 So.2d 1321 (Fla. 2d DCA 1990). If the 2015 agreements supersede their prior agreements, the forum selection issue becomes academic. Whether the parties have chosen independently to displace their prior agreements is an issue separate and apart from issues that might arise from or relate to those prior agreements. If the parties intended to abandon or forego their prior agreements, and enter the new ones, they should have that narrow issue adjudicated where all the witnesses, evidence, and alleged conduct occurred, which is in Leon County, rather than in Delaware. Absent the ability to show that they've superseded their prior agreements, or enter a novation that effectively does so, parties and their potential assignees become permanently shackled to forum-selection clauses they may no longer desire or intend, resulting in needless and costly litigation in far-away fora. For these reasons, the trial court ought to decide this threshold issue in the pending declaratory judgment claim.

      ERS was not a signatory to either the 2007 or 2011 agreement. The 2007 agreement lists the contracting company as CorpSource Finance Holdings, LLC, and the 2011 agreement lists SourceHOV Holdings, Inc. The amended complaint alleged that SourceHOV acquired CorpSource, and that ERS was a subsidiary of SourceHOV. Regardless, both sides have relied on the agreements as though ERS were a signatory: ERS by suing for breach, and Baker and Thornton by seeking to enforce the venue provisions. Neither side has raised ERS's nonsignatory status as an issue, and we will not address it.

      "Courts have often compared forum selection clauses to arbitration clauses and have applied a similar enforceability analysis to both." Carnival Corp. v. Booth , 946 So.2d 1112, 1115 (Fla. 3d DCA 2006) (quoting Thunder Marine, Inc. v. Brunswick Corp. , No. 8:06-CV-384-T17 EAJ, 2006 WL 1877093, at *8 (M.D.Fla. July 6, 2006) ); accord Scherk v. Alberto-Culver Co. , 417 U.S. 506, 519, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974) (noting that an agreement to arbitrate before a specific tribunal is "in effect, a specialized kind of forum-selection clause"). We reject ERS's argument that the pro-arbitration public-policy rationale included in Auchter means we should not follow it in a forum-selection case.

      ERS also briefly argues that the forum-selection clauses are unenforceable because they are unjust and unreasonable, that "[f]orcing piecemeal litigation" of some claims against some defendants in Delaware and other claims against other defendants in Florida would burden all parties and waste judicial resources. (Ans. Br. at 17). This is insufficient to invalidate a forum-selection clause. See Manrique , 493 So.2d at 440 n.4 ("We emphasize that the test of unreasonableness is not mere inconvenience or additional expense."); Ill. Union Ins. Co. v. Co-Free, Inc. , 128 So.3d 820, 820 (Fla. 1st DCA 2013) ("[I]t should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Absent that, there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to his bargain." (quoting Manrique , 493 So.2d at 440 n.4 (quoting M/S Breman v. Zapata Off-Shore Co. , 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) ) ) ).


author: SILBERMAN, Judge.

text:
    BRIGHT HOUSE NETWORKS, LLC, a Delaware Limited Liability Company, Appellant, v. Albert B. CASSIDY; Steven L. Cassidy; Peter E. Cassidy; Carol Cassidy Rhinehart; and Michael H. Cassidy, Appellees.
    Case No. 2D16-4770
    District Court of Appeal of Florida, Second District.
    Opinion filed March 23, 2018
    Eric J. Partlow and Donald A. Mihokovich of Adams and Reese, LLP, Tampa, for Appellant.
    John Marc Tamayo and Barbara W. Davis of Valenti, Campbell, Trohn, Tamayo & Aranda, P.A., Lakeland, for Appellees.
   SILBERMAN, Judge.

Bright House Networks, LLC, appeals a final order denying its motion for attorney's fees based on a proposal for settlement that Bright House had served on one of the plaintiffs, Albert B. Cassidy, pursuant to section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442 (2012). Because the trial court erred in determining that the proposal for settlement contained an ambiguity that could reasonably cause the offeree to be uncertain about the proposal's conditions, we reverse and remand for further proceedings.

In 2012, five members of the Cassidy family filed a one-count complaint for breach of contract against Bright House. The Cassidys alleged that Bright House was providing cable services to the Cassidys free of all charges and costs pursuant to a contract, but Bright House began issuing 1099 tax forms for the value of the services beginning in 2011. The Cassidys alleged that these taxes are charges and costs that they should not have to bear.

Bright House served "Defendant's Proposal for Settlement to Albert B. Cassidy" (the Proposal) in January 2013. He did not accept the Proposal. The Cassidys later amended their complaint to add a count for a declaratory judgment. After the trial court entered summary judgment in Bright House's favor, it filed a motion for attorney's fees and costs. Bright House sought attorney's fees based on its Proposal. Bright House asserts on appeal that it did not serve a proposal on any other plaintiff in order to avoid the issues that can arise with joint proposals for settlement.

The Proposal defines the Offeror as Bright House and the Offeree as Albert B. Cassidy. At issue are paragraphs 4 and 6 of the Proposal which read as follows:

4. Relevant Conditions: Upon acceptance of this proposal, Offeree shall, within ten (10) days thereof, cause this civil action to be dismissed with prejudice as to all claims against Offeror....
6. Claims to be Resolved: This proposal is to settle and otherwise fully and completely resolve all claims asserted by Offeree against Offeror in this action.

The trial court denied Bright House's motion for attorney's fees because the court found that "[t]here is an inherent ambiguity created in Paragraph 4 of the Proposal for Settlement regarding which claims were to be dismissed." The trial court found that the Proposal "could reasonably cause Albert Cassidy to be unsure about the conditions of the Proposal." Recognizing that "the case law requires strict construction" with respect to proposals for settlement, the court found that the Proposal did not meet the particularity requirement of rule 1.442 and was invalid.

Appellate review of a party's entitlement to attorney's fees under section 768.79 and rule 1.442 is de novo. Anderson v. Hilton Hotels Corp., 202 So.3d 846, 852 (Fla. 2016) ; Saterbo v. Markuson, 210 So.3d 135, 138 (Fla. 2d DCA 2016). Proposals made under the offer of judgment statute must strictly conform to the requirements of the statute and rule because the statutory award of attorney's fees is in derogation of the common law that usually provides for each party to pay its own fees. Anderson, 202 So.3d at 852. Rule 1.442(c)(2)(C) requires that proposals for settlement state relevant conditions with particularity. See State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1078 (Fla. 2006). A lawsuit's dismissal "is a proper and relevant condition in an offer of judgment." Sherman v. Savastano, 220 So.3d 441, 443-44 (Fla. 4th DCA 2017) (quoting 1 Nation Tech. Corp. v. A1 Teletronics, Inc., 924 So.2d 3, 6 (Fla. 2d DCA 2005) ). The condition of a dismissal must be stated with particularity in the proposal. Id. at 444. The version of rule 1.442(c)(2)(B) applicable here also provides that the proposal shall "identify the claim or claims the proposal is attempting to resolve."

The Florida Supreme Court has recognized that it may be impossible to rid proposals for settlement from all ambiguity.

[G]iven the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree's decision, the proposal will not satisfy the particularity requirement.

Nichols, 932 So.2d at 1079. And more recently, the Florida Supreme Court has stated that "courts are discouraged from 'nitpicking' proposals for settlement to search for ambiguity." Anderson, 202 So.3d at 853 (quoting Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008) ). It is the elimination of reasonable ambiguities that is required. Id. at 852-53.

A proposal that seeks to resolve all claims identified in the complaint or in a certain count can be sufficient under rule 1.442(c)(2)(B). See Miley v. Nash, 171 So.3d 145, 147-48 (Fla. 2d DCA 2015). In Miley, Martha and Garfield Nash sued Kyle Miley, the driver of an automobile, and Glenn Miley, the owner of the vehicle, in count one for bodily injury to Martha Nash and in count two for loss of consortium to Garfield Nash. Id. at 147. Kyle Miley offered to pay a specified sum of money to Martha Nash in "an attempt to resolve all claims and causes of action resulting from the incident or accident giving rise to this lawsuit brought by Plaintiff Martha Nash against Defendant Kyle Miley." Id. The proposal contained a condition requiring Martha Nash to dismiss Glenn and Kyle Miley from the lawsuit in exchange for the payment by Kyle Miley. Id. Other than count one of the complaint, Martha Nash had no other pending claims at the time of the proposal. Id. at 147-48.

This court stated that the proposal was meant to resolve only Martha Nash's bodily injury claims in count one and not her husband's loss of consortium claim in count two. Id. This court determined that "the proposal did not contain a level of ambiguity that would render Martha Nash unable to 'make an informed decision without needing clarification.' " Id. at 148 (quoting Nichols, 932 So.2d at 1079 ).

A proposal for settlement, as any other contract, must be read as a whole to determine whether it is ambiguous. See Kiefer v. Sunset Beach Invs., LLC, 207 So.3d 1008, 1011 (Fla. 4th DCA 2017). In looking at a proposal as a whole, a court should not nitpick to search for an ambiguity. Id. In Kiefer, the court determined that when a proposal and release attached to the proposal were read as a whole, the release related to only Sunset Beach and one of the defendants, Kiefer, despite that two paragraphs of the release did not state to which defendant they applied. Id. One of those paragraphs "stated that Sunset Beach released all claims that related to the lawsuit." Id. at 1010.

As in Miley and Kiefer, the Proposal did not contain a level of ambiguity that would render Albert B. Cassidy unable to make an informed decision without needing clarification. The Proposal is titled as a proposal to Albert B. Cassidy. The Proposal defines Albert B. Cassidy as "Offeree." Paragraph 4 does state the condition that the Offeree "cause this civil action to be dismissed with prejudice as to all claims against Offeror." But paragraph 6 defines the claims to be resolved and specifically states, "This proposal is to settle and otherwise fully and completely resolve all claims asserted by Offeree against Offeror in this action." Albert B. Cassidy has no authority to cause the other plaintiffs' claims to be dismissed. It is clear that the Proposal was made only to Albert B. Cassidy and that the Proposal defines the claims to be resolved as those asserted in this action by Offeree (Albert B. Cassidy) against Offeror (Bright House).

The only reasonable interpretation of the Proposal is that it was not a joint offer to all the plaintiffs and did not require a dismissal of the claims by all the plaintiffs. Instead, the Proposal was directed to only Albert B. Cassidy. When read as a whole, there is no ambiguity that would reasonably affect Albert B. Cassidy's decision. See Nichols, 932 So.2d at 1079. Thus, we reverse the trial court's order that denies Bright House's motion for attorney's fees and remand for further proceedings.

Reversed and remanded.

VILLANTI and BADALAMENTI, JJ., Concur.

      The version of section 768.79 that applies is the one in effect at the time the cause of action accrues. Buchanan v. Allstate Ins. Co., 629 So.2d 991, 992 (Fla. 1st DCA 1993).

      The version of rule 1.442 that applies is the one in effect at the time the proposal for settlement was made. See Sharp Cmty. Ambulance Serv., Inc. v. Sharp, 582 So.2d 778, 779 (Fla. 1st DCA 1991).

      An amendment effective January 1, 2014, changed rule 1.442(c)(2)(B) to require a proposal to "state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F)." See In re Amendments to the Florida Rules of Civil Procedure, 131 So.3d 643, 645, 648 (Fla. 2013). The purpose of the amendment was "to clarify that a proposal for settlement must resolve all claims between the proponent and the party to whom the proposal is made except claims for attorneys' fees, which may or may not be resolved in the proposal." Fla. R. Civ. P. 1.442 (Committee Notes, 2013 Amendment).


author: PER CURIAM.

text:
    Shamichael JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1856
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Shamichael Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   PER CURIAM.

Shamichael Johnson appeals from the trial court's denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief, see Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for attachment of records conclusively showing that the appellant is not entitled to any relief or an evidentiary hearing. Langdon v. State, 947 So.2d 460 (Fla. App. 3d DCA 2006). If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: LAGOA, J.

text:
    Gordon B. CHIU, Appellant, v. WELLS FARGO BANK, N.A., successor-by-merger to Wachovia Bank, N.A., a national banking association, Appellee.
    No. 3D17-997
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Steven F. Samilow, P.A., and Steven F. Samilow (Boca Raton), for appellant.
    Carlton Fields Jorden Burt, P.A., and Joseph H. Lang, Jr., Donald R. Kirk, and Niall T. McLachlan (Tampa), for appellee.
    Before SUAREZ, LAGOA, and LINDSEY, JJ.
   LAGOA, J.

Appellant, Gordon Chiu ("Chiu"), appeals from a final summary judgment entered in favor of Wells Fargo Bank, N.A. ("Wells Fargo"). We reverse.

I. FACTUAL AND PROCEDURAL HISTORY

In September 2005, Appellant, Gordon Chiu ("Chiu"), and his friend, Colin Green ("Green"), purchased an investment property in Port St. Lucie, Florida. To finance the purchase, Chiu and Green signed a promissory note in the amount of $504,985.97 in favor of Wachovia Bank, N.A. Chiu and Green were jointly and severally obligated under the terms of the note. The loan fell into arrears, and on June 15, 2015, Wells Fargo, successor-by-merger to Wachovia Bank, N.A., filed a complaint against Chiu for breach of the promissory note. On September 1, 2016, Chiu filed his consolidated answer and second amended affirmative defenses. Chiu asserted numerous affirmative defenses, including estoppel, unclean hands, statute of limitations, laches, unconscionability, fraud in the inducement, negligent misrepresentation, that the extension of the due dates under the note was void or voidable, failure to mitigate damages by failing to pursue the foreclosure action, misconduct in connection with the presentation of Green's creditworthiness and finances, failure to state a cause of action, and breach of fiduciary duty.

On December 7, 2016, Wells Fargo filed its motion for summary judgment, arguing that it was entitled to judgment in its favor as a matter of law and that none of Chiu's affirmative defenses raised a genuine issue of material fact. Wells Fargo filed an affidavit of amounts due and owing on March 1, 2017. Chiu filed a memorandum and amended memorandum in opposition to the motion for summary judgment on March 27, 2017. Chiu also filed affidavits in support of his memorandum on March 25, 2017 and March 27, 2017.

The parties agree that a hearing on Wells Fargo's motion for summary judgment was set for April 3, 2017. On March 31, 2017, however, the trial court, on its own initiative, entered an order cancelling the hearing set for April 3 and granting Wells Fargo's motion for final summary judgment. In its order, the trial court stated that it had reviewed Wells Fargo's motion and supporting materials as well as Chiu's memorandum in opposition to the motion and materials in opposition. The trial court entered final judgment in favor of Wells Fargo on April 5, 2017. Chiu's appeal ensued.

II. STANDARD OF REVIEW

A trial court's order entering final summary judgment is reviewed de novo. Tropical Glass & Const. Co. v. Gitlin, 13 So.3d 156, 158 (Fla. 3d DCA 2009).

III. ANALYSIS

Chiu argues that the trial court erred in entering summary judgment without conducting a hearing on Wells Fargo's motion for summary judgment as required by Florida Rule of Civil Procedure 1.510(c). This Court has held that " Florida Rule of Civil Procedure 1.510(c) contemplates a hearing on a summary judgment motion." State Farm Fire & Cas. Co. v. Lezcano, 22 So.3d 632, 634 (Fla. 3d DCA 2009). Indeed, a trial court does not have discretion to decide whether to conduct a hearing on a motion for summary judgment. Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147, 148 (Fla. 4th DCA 1992) ("[ Rule 1.510(c) ] does not provide the trial court with discretion to decide whether 'a hearing is required.' "). Thus, where a trial court grants final summary judgment without conducting a hearing pursuant to rule 1.510(c), reversal is required. See, e.g., Greene v. Seigle, 745 So.2d 411, 411 (Fla. 4th DCA 1999) ; Travelers Ins. Co. v. Fla. Med. Ctr., Inc., 621 So.2d 581, 581 (Fla. 4th DCA 1993) ; Kozich, 609 So.2d at 148.

Wells Fargo asserts that Chiu failed to preserve his objection to the trial court's procedure because he did not file a motion for reconsideration or rehearing below or otherwise bring the issue of a lack of hearing to the trial court's attention. Generally, in order to raise an issue on appeal, it must be presented to the trial court, and the "specific legal argument or ground to be argued on appeal must be part of that presentation." Holland v. Cheney Bros., Inc., 22 So.3d 648, 649-50 (Fla. 1st DCA 2009) ; see also Pensacola Beach Pier, Inc. v. King, 66 So.3d 321, 324 (Fla. 1st DCA 2011) (finding that appellants failed to preserve argument for appeal where the "trial court's error appeared for the first time on the face of the final summary judgment" and appellants did not attempt to correct error in the trial court). There is an exception to this general rule, however, where the trial court's action constitutes fundamental error. See Hall v. Marion Cty. Bd. of Cty. Comm'rs, 43 Fla. L. Weekly D197, D199 (Fla. 5th DCA Jan. 19, 2018) (stating that a party may raise an issue for the first time on appeal if it constitutes fundamental error); see also Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So.2d 1231, 1235 (Fla. 1st DCA 1995).

In Lezcano, this Court held that "[a] trial court's failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard." 22 So.3d at 634 ; accord Greene, 745 So.2d at 411 ; Kozich, 609 So.2d at 148 ("An order granting summary judgment on liability determines a party's right to the relief requested and to deny either party a hearing must be construed as a denial of due process."); cf. WGEvergreen Woods SH, LLC v. Fares, 207 So.3d 993, 996 (Fla. 5th DCA 2016) (in determining whether Rule 1.190(f) required a hearing, appellate court looked to Rule 1.510(c) for guidance and cited to Lezcano, Kozich, and Greene, noting that "[s]everal cases have concluded that it is a denial of due process 'to deny either party a hearing' when ruling on a motion for summary judgment" (citations omitted) ). A denial of due process constitutes fundamental error that may be raised for the first time on appeal. Blechman v. Dely, 138 So.3d 1110, 1114 (Fla. 4th DCA 2014) ; Weiser v. Weiser, 132 So.3d 309, 311 (Fla. 4th DCA 2014) ; Verizon Bus. Network Servs., Inc. v. Dep't of Corrections, 988 So.2d 1148, 1151 (Fla. 1st DCA 2008).

The parties agree that a hearing was scheduled on Wells Fargo's motion for summary judgment and that the trial court unilaterally cancelled the scheduled hearing. It is, therefore, appropriate for this Court to consider Chiu's due process arguments despite the fact that Chiu did not present this argument to the trial court as "[a] trial court's failure to conduct a hearing prior to ruling on the motion for summary judgment constitutes a denial of the due process guarantee of notice and an opportunity to be heard." Lezcano, 22 So.3d at 634.

Because we find that the trial court committed fundamental error in entering final summary judgment in favor of Wells Fargo without conducting a hearing as provided by rule 1.510(c), the final summary judgment entered in favor of Wells Fargo is reversed, and the cause remanded for further proceedings. See Lezcano, 22 So.3d at 634 ; Greene, 745 So.2d at 411 ; Kozich, 609 So.2d at 148.

Reversed and remanded.

      Rule 1.510(c) states, in pertinent part:
      (c) Motion and Proceedings Thereon. The motion must state with particularity the grounds on which it is based and the substantial matters of law to be argued and must specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ("summary judgment evidence") on which the movant relies. The movant must serve the motion at least 20 days before the time fixed for the hearing , and must also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party must identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing , or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party must serve a copy on the movant pursuant to rule 1.080 at least 5 days prior to the day of the hearing , or by delivery to the movant's attorney no later than 5:00 p.m. 2 business days prior to the day of hearing .
      (emphasis added).

      Because we are reversing on the basis of a procedural due process error, we do not address Chiu's substantive arguments directed toward the final summary judgment. See Casa Inv. Co. v. Nestor, 8 So.3d 1219, 1221 (Fla. 3d DCA 2009) ("Because we find merit with the procedural argument raised by [petitioner], we do not address the substantive issues raised on appeal."); Kozich, 609 So.2d at 148 (reversing order granting final summary judgment where trial court failed to conduct a hearing and expressing no opinion on the merits of the motion for summary judgment because "[a]ppellate review of the merits would be premature given the trial court's failure to provide appellant an opportunity to be heard").


text:
    Scott Allen SANDERS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-475
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 28, 2018
    Robert Wesley, Public Defender, and Daniel S. Spencer, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Scott Allen Sanders petitions for a writ of habeas corpus and certiorari relief from the trial court's order finding him to be incompetent to proceed in a criminal case and involuntarily committing him to the Department of Children and Families ("DCF"). Sanders does not contest the finding that he is incompetent to proceed due to mental illness, but he challenges the court's determination that the State established the statutory requirements for involuntary commitment by clear and convincing evidence. Concluding that the trial court's order departed from the essential requirements of law, we grant the petition and issue the writ.

Sanders was charged with burglary of a structure. The trial court appointed two mental health experts to examine Sanders to determine whether he was competent to proceed to trial. Each expert prepared a report that was submitted to the court, and both later testified at the hearing to determine whether Sanders was to be involuntarily committed to the State Hospital. The trial court found that Sanders should be committed under section 916.13(1)(a)1., Florida Statutes (2017), which provides:

(1) Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:
(a) The defendant has a mental illness and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant's well-being.

The experts disagreed as to whether Sanders should be involuntarily hospitalized. One expert opined that Sanders should be committed because he clearly would not take his medications to cope with the delusions he suffers related to his mental illness and that anything less restrictive than involuntary hospitalization would not lead to a restoration of competency because Sanders's medication intake needed to be monitored. However, no testimony or evidence was presented at the hearing specifying the nature of the self-neglect or substantial harm to Sanders, as required under this statute, if he were not involuntarily committed. Further, the written report of this expert described Sanders as appearing to be an intelligent man, albeit with untreated symptoms of schizophrenia, who resided in an apartment, had adequate hygiene, and was alert and oriented in "person, place, time, and situation," and whose speech and comprehension for casual conversation was "fine."

"In an involuntary commitment proceeding, the State bears the burden of proving by clear and convincing evidence that the statutory criteria authorizing involuntary commitment have been met." Boller v. State , 775 So.2d 408, 409 (Fla. 1st DCA 2000) (quoting Blue v. State , 764 So.2d 697, 698 (Fla. 1st DCA 2000) ). Moreover, "[i]t is well-settled that the need for treatment and medication and the refusal to take psychotropic medication despite a deteriorating mental condition, standing alone, do not justify involuntary commitment." Id.

We conclude that the testimony and evidence presented at this hearing did not clearly and convincingly establish that Sanders met the statutory criteria for involuntary commitment. See Lyon v. State , 724 So.2d 1241, 1242-43 (Fla. 1st DCA 1999) (holding that a psychiatrist's testimony that the patient, who was alleged to be schizophrenic, would neglect herself if she were not on medication, without specifying the nature of the self-neglect in a manner that established any real and present threat of substantial harm to the patient's well-being, could not support involuntary commitment). Accordingly, we grant the petition, quash the order for involuntary commitment, and remand to the trial court to hold a hearing to determine the appropriate mental health treatment for Sanders in accordance with Florida Rule of Criminal Procedure 3.212(c)(1)-(2) and (d). See, e.g., Gatlin v. State , 79 So.3d 202, 204 (Fla. 2d DCA 2012).

PETITION GRANTED; ORDER QUASHED; REMANDED.

PALMER, LAMBERT, and EDWARDS, JJ., concur.

      We treat the petition as a petition for writ of certiorari. See In re Commitment of Reilly , 970 So.2d 453, 455 (Fla. 2d DCA 2007) ("As a general rule, certiorari is the proper vehicle for this court's review of orders committing an individual involuntarily.").

      In Boller , the First District Court of Appeal addressed an involuntary commitment pursuant to the 1999 version of the Baker Act; specifically, section 394.467(1)(a)2.a., the language and requirements of which are nearly identical to section 916.13(1)(a)1., Florida Statutes (2017). See 775 So.2d at 409.