author: WINSOR, J.

text:
    Jason Royce REDMON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-225
    District Court of Appeal of Florida, First District.
    Opinion filed February 14, 2017.
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, Eleventh Judicial Circuit, Miami. Jason Royce Redmon, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   WINSOR, J.

In this Anders appeal, we affirm Jason Redmon’s judgment and sentence.

I.

The United States Supreme Court has recognized that there are circumstances where a court-appointed appellate counsel will, “after a conscientious examination,” find their client’s case to be “wholly frivolous.” See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In those circumstances, counsel should “so advise the court” and submit “a brief referring to anything in the record that might arguably support the appeal.” Id.; see also In re Anders Briefs, 581 So.2d 149, 151 (Fla. 1991) (“The procedure established in An-ders and its progeny requires an indigent’s appellate counsel to ‘master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal ....’” (quoting McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988)) ).

Some Anders briefs fall short of the requirements. See, e.g., Penson v. Ohio, 488 U.S. 75, 81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (noting that counsel’s Anders brief “failed to draw attention to ‘anything in the record that might arguably support the appeal’ ”); In re Order of the First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State, 556 So.2d 1114, 1116 (Fla. 1990) (agreeing with district court that “appellate counsel’s original brief failed to meet the minimum requirements of Anders”); Chapman v. State, 186 So.3d 3, 6 (Fla. 2d DCA 2015) (indicating that counsel’s brief “[fell] short of satisfying the procedure under An-ders”). It is critical, though, that counsel diligently follow the requirements because the Anders brief “serves the valuable purpose of assisting the court in determining both that counsel in fact conducted the required detailed review of the case and that the appeal is indeed so frivolous that it may be decided without an adversary presentation.” Penson, 488 U.S. at 81-82, 109 S.Ct. 346 (footnote omitted).

II.

In this case, Redmon’s appellate counsel did everything the Anders process demands. Counsel thoroughly outlined the facts and procedural history of the case, noted when objections were raised, and provided clear citations to the record. Moreover, counsel identified possible issues and cited to appropriate legal authorities.

A.

The first issue counsel identified was whether the trial court erred in denying Redmon’s motion to strike the jury panel. Redmon’s basis for the motion was that the panel had allegedly overheard prejudicial out-of-court information about his case. The trial court asked the panel whether anyone had heard anything and then individually questioned the responsive jurors to determine if what they heard would prejudice Redmon. Having determined that no such prejudice existed, the trial court denied Redmon’s motion. This fell well within the court’s discretion, see Smith v. State, 7 So.3d 473, 494-95 (Fla. 2009); Williams v. Osking, 105 So.3d 653, 655 (Fla. 4th DCA 2013), and we find no arguable reversible error.

B.

The second issue counsel identified was whether the trial court erred in denying Redmon’s motion for judgment of acquittal. Redmon was charged with abusing a disabled person, and he argued at trial that the State failed to provide sufficient evidence that the victim was disabled. But the victim had testified extensively as to her condition, and viewed in the light most favorable to the State, there was competent, substantial evidence that the victim was disabled. The trial court therefore properly denied the motion for a judgment of acquittal, see Pagan v. State, 830 So.2d 792, 803 (Fla. 2002), and we find no arguable error.

III.

Redmon’s counsel identified two potential issues, neither of which provides an arguable basis for reversal. Finally, our own independent review of the record found no arguable basis for reversal. Accordingly, we AFFIRM.

B.L. THOMAS and ROWE, JJ., CONCUR.

       The procedure established in Anders is "merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.” Smith v. Robbins, 528 U.S. 259, 276, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). States can adopt different procedures, provided they adequately safeguard the right to appellate counsel. Id. at 265, 120 S.Ct. 746. Florida, however, has "adopted the precise procedure set forth in the original Supreme Court opinion in Anders.” See N.S.H. v. Fla. Dep’t of Children & Family Servs., 843 So.2d 898, 900 (Fla. 2003).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose MORA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1434
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017.

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   PER CURIAM.

Jose Mora appeals his conviction and sentence for second-degree murder. In affirming, we address a single issue raised by the appellant regarding the prosecutor’s allegedly-improper closing argument. In this case, the prosecutor told the jury, at separate points in her closing argument, “[t]his trial has been a circus of a parade of incidents,” that the jury should rely on what the witnesses said, not what defense counsel told them, “because she [defense counsel] misrepresented the facts,” and that the defense case of self-defense was “just a theory” and “something that has been fabricated.”

These comments were indeed improper. The timely objections by the defense should have been sustained. Each such comment warranted a curative instruction and, in the discretion of the trial judge, a sidebar and warning to the prosecutor. A trial is not a “circus.” Defense counsel was not intentionally misrepresenting facts or “fabricating” them. The Rules Regulating the Florida Bar, local codes of professionalism, and the reported decisions of all six state appellate courts in Florida demand a higher standard. “Verbal attacks on the personal integrity of opposing counsel are inconsistent with the prosecutor’s role and are unprofessional.” Merck v. State, 975 So.2d 1054, 1070 (Fla. 2007).

This is not a new problem. See, e.g., Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982). Although the State Attorney’s Office prosecutes these cases, the regional office of the Attorney General of Florida is required to handle any resulting appeals. One imagines that improper argument of this kind might diminish if the prosecutor who created the issue at trial was required to research and write the appellee’s brief, and then argue the appeal here. In-service trainings between the two offices might also mitigate the problem.

Turning to the present case, only two facts save the State from a reversal. First, the comments were isolated and not “pervasive.” See, e.g., Cardona v. State, 185 So.3d 514, 516 (Fla. 2016). Second, the evidence of guilt was overwhelming. The medical examiner testified that the victim suffered seven entrance gunshot wounds, in the front, side, and back, consistent with being shot from a few feet away. The defendant owned and used both pistols and did not deny that in his own testimony. Eyewitnesses and other evidence did not corroborate the defendant’s claim of self-defense regarding the actual incident. On this record “there is no reasonable probability that the improper comments affected the verdict,” with the result that “such error is harmless and does not require reversal.” Braddy v. State, 111 So.3d 810, 837 (Fla. 2012) (citing Hitchcock v. State, 755 So.2d 638, 643 (Fla. 2000)).

The remaining issues raised by the appellant do not merit further analysis. Affirmed.

      .“A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury's view with personal opinion, emotion, and nonrecord evidence.” Ruiz v. State, 743 So.2d 1, 4 (Fla. 1999) (emphasis provided).

      . Indeed, if the prosecutor actually believed that defense counsel offered "fabricated” evidence during the case, this would constitute that lawyer’s violation of Rule 4-3.3(a)(4) of the Rules Regulating The Florida Bar. The prosecutor could be obligated to report the violation to the Bar. R. Regulating the Fla. Bar 4-8,3(a).

      . This is not to suggest that defense counsel are exempt from such issues; the applicable Rules and decisions apply to prosecutors and defense counsel alike.


author: EMAS, J.

text:
    Richard N. FRIEDMAN, Appellant, v. MERCANTIL COMMERCEBANK, N.A., Appellee.
    No. 3D15-2352
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017

      Richard N. Friedman, in proper person.
    Victor K. Rones and Jeremy S. Rones, for appellee.
    Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
   EMAS, J.

Richard N. Friedman appeals an amended final deficiency judgment entered in favor of Mercantile Commerce Bank in the amount of $364,740.56 plus interest. We affirm.

The case was originally filed as a foreclosure action against Friedman and his wife, Marjan Nini Friedman, relating to property owned by the Friedmans in Miami-Dade County. However, on the day of trial, the parties reached a settlement. Pursuant to the terms of that settlement, Mercantile agreed to accept a deed in lieu of foreclosure, and reserved the right to seek a deficiency. Friedman reserved the right to assert any defenses to, or otherwise contest, any deficiency sought by Mercantile. It was further agreed that Mercantile would seek any deficiency judgment against Friedman only, and not against his wife. When the Friedmans failed to deliver the deed to Mercantile, the trial court entered an order conveying the property and transferring all of the Friedmans’ interest in the property to Mercantile. That order, rendered on June 27, 2012, was recorded by Mercantile on July 2, 2012. Thereafter, Mercantile sought a deficiency judgment against Friedman, and following a bench trial, the court entered the deficiency judgment, accepting the fair market valuation of Mercantile’s expert, and assessing prejudgment interest at eighteen percent.

Friedman asserts that the trial court erred in its determination of the proper date for assessing the fair market value of the property; in its assessment of the amount of the deficiency; and in awarding prejudgment interest of eighteen percent. We find no error.

We hold that the trial court properly concluded that the date for determining fair market value was July 2, 2012, the date of recordation of the order transferring interest in the property from the Friedmans to Mercantile. See Philippe v. Weiner, 143 So.3d 1086 (Fla. 3d DCA 2014).

Further, the record on appeal provided by Friedman is otherwise inadequate to allow for meaningful review of related errors allegedly made by the trial court in its determination of fair market value and the amount of the deficiency. Based on the record provided, we conclude that the trial court, having considered the evidence, including competing testimony from each party’s expert, properly exercised its broad discretion in determining the fair market value of the property and the amount of the deficiency. Id. See also Khan v. Simkins Indus., Inc., 687 So.2d 16, 18 (Fla. 3d DCA 1996) (observing: “It is a long standing legal principle that the granting of a deficiency decree is discretionary with the trial court; such discretion is not absolute and unbridled, but rather one which must be supported by established equitable principles as applied to the facts of the case.”)

Finally, we hold that the trial court, in its amended final judgment, properly awarded prejudgment interest at the rate of eighteen percent. Mercantile, in its original foreclosure complaint, sought interest at the rate of twenty-five percent, a rate which Friedman alleged was usurious. Pursuant to the express terms of the settlement, the parties agreed that “the interest rate will be 18 percent and not 25 percent,” as sought by Mercantile in its complaint. Friedman was bound by the express terms of the settlement and has failed to demonstrate any error by the trial court in this regard.

Affirmed.

      . To render this transfer of real property "good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice,” it was required that this order be recorded. See § 695.01(1), Fla. Stat. (2012).

      . In this case, as in Philippe, there was no foreclosure sale, distinguishing the instant case from those decisions relied upon by Friedman. See, e.g., Morgan v. Kelly, 642 So.2d 1117, 1117 (Fla. 3d DCA 1994); Cmty. Bank of Homestead v. Valois, 570 So.2d 300, 303 n.1 (Fla. 3d DCA 1990); Mizner Bank v. Adib, 588 So.2d 325 (Fla. 4th DCA 1991).

      . Friedman retained a court reporter who recorded the trial proceedings. However, Friedman did not order the trial proceedings transcribed, asserting that he is indigent and unable to pay the costs of transcription. We reject Friedman’s claim that his indigent status renders the transcripts "unavailable” under Florida Rule of Appellate Procedure 9.200(b)(4). That mle provides in pertinent part; "If no report of the proceedings was made, or if the transcript is unavailable, a party may prepare a statement of the evidence or proceedings” with the participation of the other parties, which must then be submitted to, and approved by, the lower tribunal. However, an indigent party to an appeal from a civil action has no constitutional or statutory right to a free transcript of the trial proceedings. See Alexander v. Bamash, 814 So.2d 1211 (Fla. 4th DCA 2002). Cf. Smith v. Dep't of Health and Rehab. Servs., 573 So.2d 320 (Fla. 1991) (holding that section 57.081 and section 120.57(l)(b)(6) Florida Statutes (1991) require the state to provide a free transcript in an appeal taken by an indigent party from an adverse agency decision).
      This court entered an order directing Friedman to provide the transcript of the trial proceedings, which Friedman failed to do. Instead, Friedman prepared and submitted a Statement of the Evidence or Proceedings pursuant to Rule 9.200(b)(4). This court eventually permitted the appeal to proceed on this Statement of the Evidence. Nevertheless, it was (and remained) incumbent on Friedman to provide the appellate court with an adequate record upon which the court can determine the merits of any properly-preserved claims of error. See Fla. R. App. P. 9.200(e) (providing that "[t]he burden to ensure that the record is prepared and transmitted in accordance with these rules shall be on the petitioner or appellant.”) Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979); Corallo v. Florida Dept. of Children & Family Servs., 971 So.2d 966 (Fla. 3d DCA 2008); Latin Am. Ben. Center, Inc. v. Johstoneaux, 257 So.2d 86 (Fla. 3d DCA 1972).

      . The remaining issues raised by Friedman are either without merit, not properly preserved, or cannot be determined on the merits based upon the inadequacy of the record on appeal.


author: WELLS, Judge.

text:
    Mamie WILSON, et al., Appellants, v. Darrell WILSON, et al., Appellees.
    No. 3D14-2576
    District Court of Appeal of Florida, Third District.
    Opinion filed February 15, 2017

      Frank Wolland, North Miami, for appellants.
    Marcus Law Center, and Alan K. Marcus and Christopher Machado, for appellee Gamalyah Israelion.
    Before SUAREZ, C.J., and WELLS and EMAS, JJ.
   WELLS, Judge.

Church of God Tabernacle, Inc., Church of God, True Holiness of Miami, Inc., Nationwide Holiness Church of Brotherly Love, Inc., Operation Keep Cool, Inc., Silver Stone Singing Convention, Inc., Star of Dave’s Temple, Inc., and Young Land USA, Inc., appeal from an order determining that the properties owned by these entities were in fact the personal property of Reverend John Wilson, the incorporator of each of these entities, thereby making their assets subject to probate as part of the estate of Reverend Wilson. Because no basis was alleged and no evidence adduced to support disregarding the corporate identity of these entities, we reverse and remand for adjudication of the claims raised by the pleadings below.

This action was commenced in March of 2012 by Mamie Wilson, Deshawn Green and Joseph Warren, Jr., on behalf of the plaintiff corporations, claiming to be the lawful board members of these corporations formed by the Reverend John Wilson. According to the verified complaint, following Reverend Wilson’s death in December of 2010, a number of Reverend Wilson’s children, specifically Darrell, Emanuel, and Elwyn Wilson (a/k/a A1 Allen), as well as Steven Higg and Robert Watts, through trickery and deceit attempted to name themselves as members of the board of directors of these corporations; to oust the legitimate board members of these corporations; and to take over the operation of the properties and businesses owned by these corporations. The plaintiff corporations requested that the court below declare their right “to reinstate their original board members,” and to enjoin the defendants from further interfering in the management, operations, and business of these entities.

Darrell, Emanuel, and Elwyn Wilson admitted that they were Reverend Wilson’s sons as alleged in the complaint and that each had “filed documents with the State of Florida naming themselves as board members of the plaintiff corporations.” (Emphasis added). They also admitted that Robert Watts “had placed himself in the State of Florida Corporate Records as a board member” of the plaintiff corporations. Robert Watts also admitted that he had “placed himself in the State of Florida Corporate Records as a board member.” Steven Higg filed an answer, but neither identified himself as a member of Reverend Wilson’s family nor stated how he became a corporate board member.

Darrell and Emanuel Wilson ultimately were allowed to file a counterclaim seeking to be declared the rightful directors of the plaintiff corporations alleging only that “[u]pon information and belief’ Reverend Wilson had “conducted a meeting of the Board of Directors at which time he had appointed ... [Darrell and Emanuel Wilson] to the Board” of the plaintiff corporations.

In April of 2013, Gamalyah Israelion, another of Reverend Wilson’s fourteen children, although not named as a defendant in this action, sought leave to intervene below. Israelion, initially appointed as personal representative of Reverend Wilson’s estate but later removed and replaced by Mamie Wilson, sought intervention after having been unsuccessful in having the probate court include as assets in Reverend Wilson’s estate the properties owned by the corporations at issue here. According to his motion to intervene, Is-raelion asserted that because these corporations had not “been properly run as tax exempt[] ‘not for profit corporations,’” the assets belonging to them belonged to Reverend Wilson individually and had to be included as assets in Wilson’s estate.

A few months later, all but one of the plaintiffs and defendants executed a settlement agreement resolving all issues regarding board of director membership and sought court approval of the agreement. The intervenor and one of the original defendants, Elwyn Wilson, objected to the settlement and the agreement was not approved by the court below. The intervenor then filed a complaint naming Mamie, Darrell, and Emanuel Wilson, as well as Desh-awn Green, Joseph Warren, Jr., Steven Higg, and Robert Watts as defendants in which he claimed that because the corporations created by Reverend Wilson were not actually “Not For Profit” corporations, the assets of these corporations belonged to Reverend Wilson individually and now to his estate.

Darrell and Emanuel Wilson moved to dismiss the intervenor’s complaint but the motion was denied. They then counterclaimed alleging that documentation online with the Secretary of State confirmed that the corporations at issue here “began as Not For Profit Corporations and ha[d] always maintained their status as Not For Profit Corporations.” They further alleged that there was “no legal basis or authority for this or any other court to convert a Not For Profit Corporation into a For Profit Corporation for the purposes of distributing corporate assets through intestate succession.” Otherwise stated, they claimed that no legal basis existed to disregard a corporation’s identity based on its failure to function as a not for profit corporation.

This matter was finally tried over a period of four days in May, June, July and September of 2014, By the time of trial, literally countless motions and orders thereon had been filed resulting in a record exceeding 3000 pages. Additionally, many thousands of dollars had been expended in receivers’ and attorney’s fees.

On September 29, 2014, a final order was entered. That order determined that neither plaintiffs nor defendants proved “that they duly formed a properly constituted Board of Directors for the ... Plaintiff corporations or in any way carried out any of the proper functions to constitute a duly formed corporation(s) for the business of Rev. Wilson.” The order further determined that because the plaintiff corporations neither operated as not for profit corporations nor conducted regular director and shareholder meetings or maintained corporate minutes or books, records and bank accounts, they were not corporations at all. As a consequence, the final order determined that the businesses conducted by the plaintiff corporations were “businesses owned by Rev. Wilson personally” essentially subject to distribution as part of Reverend Wilson’s estate as requested by the intervenor.

We reverse this final order because the action was decided on a matter wholly outside the issues raised by the parties in their pleadings and because it is unsupported by controlling law.

The pleadings filed below by the plaintiffs and defendants herein raise but a single claim: whether the board of directors of each named corporation was comprised of the plaintiffs or the defendants. No issue was raised as to whether the named corporations were corporations, whether for or not for profit. That issue, which is the issue decided by the court below, was raised mid-proceeding by an intervenor and not by the parties to this action and should not have been determined in this action.

Florida Rule of Civil Procedure 1.230 no doubt authorizes intervention by a party claiming an interest in a pending litigation. Fla. R. Civ. P. 1.230 (providing that “[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention”). However, the general rule long-ago stated is that the interest that will support intervention is one of such direct and immediate character that the intervenor will be affected by a judgment:

The interest which will entitle a person to intervene must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918); see also Omni Nat’l Bank v. Georgia Banking Co., 951 So.2d 1006, 1007 (Fla. 3d DCA 2007) (“In order for a party to intervene, its interest ‘must be in the matter in litigation, and of such a direct and immediate character that the interve-nor will either gain or lose by the direct legal operation and effect of the judgment.’”) (quoting Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla. 1992)).

For these reasons, an intervenor must accept the record and pleadings as he finds them and cannot raise new issues and is limited to arguing the issues as they apply to him as a party. See Nat’l Wildlife Fed’n Inc. v. Glisson, 531 So.2d 996, 997-98 (Fla. 1st DCA 1988); see also Omni Nat’l Bank, 951 So.2d at 1007 (“The intervenor must accept the record and pleadings as they exist in the litigation and the intervenor may not raise any new issues.”); Envtl. Confederation of Sw. Fla., Inc. v. IMC Phosphates, Inc., 857 So.2d 207, 211 (Fla. 1st DCA 2003) (“Intervention is a dependent remedy in the sense that an intervenor may not inject a new issue into the case.”).

The intervenor in this case, an already removed personal representative of Reverend Wilson’s estate, demonstrated no interest of such a direct and immediate character that the intervenor would either gain or lose by the direct legal operation and effect of a judgment on the issues raised by the parties to this action. A determination as to which set of board members was the proper board of directors would be, and is, of no moment to the interests of Reverend Wilson’s estate. To the contrary, the interest of Reverend Wilson’s estate is whether the assets owned by the plaintiff corporations were corporately or individually owned and, thus, whether or not they were part of Reverend Wilson’s estate. That matter is wholly separate and apart from the issues raised by the parties to this action below. Intervention was, therefore, improper as was the issue adjudicated as a consequence thereof.

The court below also erred in determining that the plaintiff corporations were neither not for profit corporations nor any other kind of corporations, but were simply “businesses owned by Rev. Wilson personally.” In so ruling, the court below, while not specifically ordering a judicial dissolution of the plaintiff corporations, effectively dissolved them, and went one step further and determined the proper owner of the corporations’ assets. For a number of reasons, this is neither legally nor factually supportable.

First, no person authorized by section 617.1430 of the Florida Statutes moved for judicial dissolution of these not for profit corporations. See § 617.1430, Fla. Stat. (2016). Indeed, the plaintiffs below did not seek a judicial dissolution; the court itself concluded the defendants were not board members; and the intervenor never professed to be a board member or shareholder of the plaintiff corporations. In short, no party authorized to pursue dissolution sought such relief below.

Second, even if a proper party on a proper basis had moved for judicial dissolution of these corporations, dissolving these corporations would not have placed their assets in Reverend Wilson or his estate’s hands. Among other things, and as section 607.1405 of the Florida Statutes makes clear, dissolving a corporation does not transfer title, that is, ownership, of a corporation’s assets. See § 607.1405, Fla. Stat. (2016). Thus, even had the plaintiff corporations been properly dissolved, their assets would not automatically become Reverend Wilson or his estate’s assets.

Third, the plaintiff corporations’ failure to engage in the activities enumerated in the order on appeal does not justify their immediate dissolution. Contrary to the trial court’s conclusion, failure to keep corporate minutes and to conduct regular stockholder and board of director meetings does not vitiate corporate identity. As section 617.0701(2) of the Florida Statutes expressly confirms, “[f|ailure to hold an annual meeting does not cause a forfeiture or give cause for dissolution of the corporation, nor does such failure affect otherwise valid corporate acts, except as provided in s. 617.1430 in the case of a deadlock among the directors or the members.” § 617.0701(2), Fla. Stat. (2016). The record is that these closely held corporations were incorporated by Reverend Wilson, some over forty years ago, for the express purposes of operating numerous churches on properties purchased by the corporations. Throughout the years, annual reports for each of these entities were filed and from time to time, the composition of their boards of directors were modified. As these corporations fulfilled their express purpose over many years, no evidence exists that the officers, directors, or shareholders of them contemplated abandoning their stated purpose. More to the point, the fact that these closely held corporations purchased properties and collected rents thereon provides no support for disregarding their corporate identities. This is especially so since no party to this action, and not even the intervenor, pled an action that would support piercing their corporate veils and concluding that Reverend Wilson and these churches were really one in the same, or created for an improper purpose, rather than merely conducting those activities necessary for the perpetuation of these corporations’ stated goals. See Gasparini v. Pordomingo, 972 So.2d 1058, 1055 (Fla. 3d DCA 2008) (“To ‘pierce the corporate veil’ three factors must be proven: (1) the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant.” (quoting Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987, 990 (Fla. 4th DCA 1998))); see also Roberts’ Fish Farm v. Spencer, 153 So.2d 718, 721 (Fla. 1963) (“Those who utilize the laws of this state in order to do business in the corporate form have every right to rely on the rules of law which protect them against personal liability unless it be shown that the corporation is formed or used for some illegal, fraudulent or other unjust purpose which justifies piercing of the corporate veil. This is the reason for the rule, stated in all Florida cases, that the courts are reluctant to pierce the corporate veil and will do so only in a court of competent jurisdiction, after notice and full opportunity to be heard by all parties, and upon showing a cause which necessitates the corporate entity being disregarded in order to prevent some injustice.”); see also Lipsig v. Ramlawi, 760 So.2d 170, 187 (Fla. 3d DCA 2000) (“[E]ven if a corporation is merely an alter ego of its dominant shareholder or shareholders, the corporate veil cannot be pierced so long as the corporation’s separate identity was lawfully maintained.”).

Lastly, rather than adjudicating a matter not properly raised below, the trial court should have considered the single claim raised below, that is, whether the plaintiffs or the defendants were the rightful directors of the plaintiff corporations. The uncontradicted record is that from inception each plaintiff corporation herein filed an annual report and these annual reports listed the names and addresses of each corporation’s directors. Based on this record, we agree with the trial court that the defendants Darrel Wilson, Sr., Emanuel Wilson, Steven Higg, Elwyn Wilson and Robert Watts were never members of the properly constituted board of directors of any of the plaintiff corporations. The record is that from the inception of each of the plaintiff corporations in the 1960’s through the 1990’s, the board of directors of each corporation remained virtually unchanged. Significantly, at no time prior to Reverend Wilson’s death in December of 2010 or even until March of 2012, were any of these defendants “named” to the board of directors of any of the entities at issue. The same cannot be said for plaintiff, Mamie Wilson, who, according to annual reports filed by these corporations, was a member of various boards of directors well before, until, and after Reverend Wilson’s death. Plaintiffs Deshawn Green and Joseph Warren, Jr. became members of various boards of directors after Reverend Wilson’s death and before the defendants named themselves as the directors in their stead.

Accordingly, we reverse the trial court’s dissolution of these not for profit corporations because dissolution was not properly raised as an issue, nor properly pled or tried below. We also affirm the trial court’s determination that the individual defendants were never members of the properly constituted board of directors of any plaintiff corporation. Because the uncontradict-ed record demonstrates that the plaintiffs are the rightful directors of the subject corporations, we reverse the denial of plaintiffs’ claim for declaratory relief and remand for entry of judgment in plaintiffs’ favor.

Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.

      . They also asked for the appointment of a receiver to operate the corporations’ businesses; for an accounting of all of the corporations’ books and records; for an injunction against Mamie Wilson; and for money damages against Mamie Wilson for conversion of corporate assets.

      . Section 617.1430 provides the grounds for judicial dissolution of a not for profit corporation:
      A circuit court may dissolve a corporation: (1)(a) In a proceeding by the Department of Legal Affairs if it is established that:
      1. The corporation obtained its articles of incorporation through fraud; or
      2. The corporation has continued to exceed or abuse the authority conferred upon it by law.
      (b) The enumeration in paragraph (a) of grounds for judicial dissolution does not exclude actions or special proceedings by the Department of Legal Affairs or any state official for the annulment or dissolution of a corporation for other causes as provided by law.
      (2) In a proceeding brought by at least 50 members or members holding at least 10 percent of the voting power, whichever is less, or by a member or group or percentage of members as otherwise provided in the articles of incorporation or bylaws, or by a director or any person authorized in the articles of incorporation, if it is established that:
      (a) The directors are deadlocked in the management of the corporate affairs, the members are unable to break the deadlock, and irreparable injury to the corporation is threatened or being suffered;
      (b) The members are deadlocked in voting power and have failed to elect successors to directors whose terms have expired or would have expired upon qualification of their successors; or
      (c) The corporate assets are being misapplied or wasted.
      (3)In a proceeding by a creditor if it is established that:
      (a) The creditor’s claim has been reduced to judgment, the execution on the judgment returned unsatisfied, and' the corporation is insolvent; or
      (b) The corporation has admitted in writing that the creditor’s claim is due and owing and the corporation is insolvent.

        (4) In a proceeding by the corporation to have its voluntary dissolution continued under court supervision.

      . Section 607.1405 Fla. Stat. (2016), provides:
      (1) A dissolved corporation continues its corporate existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs, including:
      (a) Collecting its assets;
      (b) Disposing of its properties that will not be distributed in kind to its shareholders;
      (c) Discharging or making provision for discharging its liabilities;
      (d) Distributing its remaining property among its shareholders according to their interests; and
      (e) Doing every other act necessary to wind up and liquidate its business and affairs.
      (1) Dissolution of a corporation does not:
      (a) Transfer title to the corporation’s property;
      (b) Prevent transfer of its shares or securities, although the authorization to dissolve may provide for closing the corporation’s share transfer records;
      (c) Subject its directors or officers to standards of conduct different from those prescribed in ss. 607.0801-607.0850 except as provided in s. 607.1421(4);
      (d) Change quorum or voting requirements for its board of directors or shareholders; change provisions for selection, resignation, or removal of its directors or officers or both; or change provisions for amending its bylaws;
      (e) Prevent commencement of a proceeding by or against the corporation in its corporate name;
      (f) Abate or suspend a proceeding pending by or against the corporation on the effective date of dissolution; or
      (g) Terminate the authority of the registered agent of the corporation.
      (3) The directors, officers, and agents of a corporation dissolved pursuant to s. 607.1403 shall not incur any personal liability thereby by reason of their status as directors, officers, and agents of a dissolved corporation, as distinguished from a corporation which is not dissolved.
      (4) The name of a dissolved corporation shall not be available for assumption or use by another corporation until 120 days after the effective date of dissolution unless the dissolved corporation provides the Department of State with an affidavit, executed pursuant to s. 607.0120, permitting the immediate assumption or use of the name by another corporation.
      (5) For purposes of this section, the circuit court may appoint a trustee for any property owned or acquired by the corporation who may engage in any act permitted under subsection (2) if any director or officer of the dissolved corporation is unwilling or unable to serve or cannot be located.

      . Given this, it is unsurprising that the defendants have not appealed this determination; nor did they file an appellate brief in this matter or at all participate in this appeal.

      . The record as to the plaintiff corporations is:
      Church of God, True Holiness of Miami, Inc.: incorporated by Reverend Wilson in 1966 with Wilma, Morrie and Lillie Wilson as its initial board of directors. Annual reports for this corporation confirm that by 1995 the board was comprised of John, Mamie and Mamie Yvonne Wilson and Walter Wortham. Thereafter, no changes were made to the board of directors until 2012 when the defendants added themselves to the board.
      Church of God Tabernacle, Inc.: incorporated by Reverend Wilson in 1967 with Wilma Wilson and Andrew Alcomb as its initial board of directors. Annual reports for this corporation confirm that by 1995 the board was comprised of John, Mamie and Mamie Yvonne Wilson and Walter Wortham. Thereafter, no changes were made to the board of directors until 2012 when the defendants added themselves to the board.
      Operation Keep Cool, Inc.: incorporated by Reverend Wilson in 1969 with Wilma Wilson, Andrew Alcomb, and Fulton Thomas as its initial board of directors. Annual reports for this corporation confirm that by 1995 the board was comprised of John and Mamie Wilson and Walter Wortham. Annual reports show that in 2007 Yvonne Wilson was added to the board which remained unchanged until 2012 when the defendants added themselves to the board.
      Young Land USA, Inc.: incorporated by Reverend Wilson in 1986 with Mamie Wilson and Walter Wortham as its initial board of directors. Annual reports for this corporation confirm that by 1995 the board was comprised of Mamie, John and Wesley Wilson. Annual reports show that in 2004 Yvonne Wilson was added to the board which remained unchanged until 2012.
      Silver Stone Singing Convention, Inc.: incorporated by Reverend Wilson in 1986 with Mamie Wilson, Walter Wortham and John Manual as its initial board of directors. Annual reports for this corporation confirm that by 1995 the board was comprised of Mamie and John Wilson and Walter Wortham. Annual reports show that in 2007 Yvonne Wilson was added to the board which remained unchanged until 2012.
      Star of Dave’s Temple, Inc.: incorporated by Reverend Wilson in 1987 with Mamie Wilson and Walter Wortham as its initial board of directors. Annual reports for this corporation confirm that by 1995 the board was comprised of Mamie, John, and Wesley Wilson. Annual reports show that in 2007 Yvonne Wilson was added to the board which remained unchanged until 2012.
      Nationwide Holiness Church of Brotherly Love, Inc.: incorporated by Reverend Wilson in 1991 with Mamie Wilson, Walter Wortham, and Christine Alexander as its initial board of directors. Annual reports show that in 1997 Yvonne Wilson was added to the board which remained unchanged until 2012.

      .In so holding, we express no opinion as to propriety or potential outcome of any validly pled action for judicial dissolution of these not for profit corporations, a shareholder’s derivative action, an action to pierce the corporate veil, or any other possible action in which the allegations of the intervenor's complaint may be raised and considered.


author: May, J.

text:
    Gabriel Brian NOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1240
    District Court of Appeal of Florida, Fourth District.
    February 15, 2017
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals his conviction and sentence for first degree murder while engaged in the commission of a robbery, and tampering with physical evidence. He raises three issues. We find no merit in any of them, but write to discuss the third issue concerning the detective’s testimony regarding the defendant’s statement. We affirm.

The evidence revealed that the victim, a sixty eight-year-old retired man, took the defendant, a twenty-seven-year-old man, home with him from the beach. When the victim did not show up later that day for a planned dinner, the victim’s friend went to his house. There, he discovered the victim lying face down in the kitchen.

A detective arrived at the scene and spoke to witnesses, who saw the victim eating with a younger man on his back porch earlier that day. A medical examiner determined the victim had extensive injuries to his neck consistent with pressure being applied to the area. He questioned whether it was horseplay or erotic choking, but determined more force was likely used to cause the victim’s death.

During the investigation, law enforcement discovered videos showing the defendant using the victim’s credit card at various Broward County stores. Surveillance videos showed the victim’s car at locations where the card was used. The defendant actually gave his phone number to a cashier while using the victim’s credit card.

Law enforcement obtained a pen-register/trap and trace order to access information concerning the defendant’s cell phone, and an order specifically authorizing the use of real time cellular site information (“CSLI”) to track the cell phone. Six days after the victim’s death, a Broward detective was notified that the defendant’s cell phone had been turned on for the first time in three days. The cell phone signal was tracked to South Beach.

Broward law enforcement traveled to South Beach in unmarked police cars. Using a still photo of the defendant from a surveillance video, they located him. They flagged down a Miami Beach police officer, who detained the defendant.

When the detective arrived, he introduced himself to the defendant, who responded by asking whether he was being approached about the car or the warrant out of Delaware. The detective observed the defendant in possession of a tote bag with the victim’s initials on it. The detective saw the victim’s business cards, credit cards, car keys, and a lap top computer inside the tote bag. He confirmed the defendant’s cell phone as the one they were tracking and noted the defendant’s resemblance to the still photo.

Broward law enforcement then took the defendant to their office where he gave a Mirandized statement to the detective. Neither party introduced the video recording of the interrogation into evidence. Instead, the State called the detective to testify about the defendant’s statement.

On direct examination, the detective testified that the defendant initially stated he did not know the victim and he had bought all the items from someone on the beach. The defendant later acknowledged he knew the victim. The detective testified: “[the defendant] put his head down and shook his head and said, he wasn’t suppose[d] to die, it wasn’t suppose[d] to happen this way, and then he began telling me more details about what had happened.”

The defendant told the detective that he left the beach with the victim, who was going to pay him for sex. The victim had a wrestling fetish and asked the defendant to engage in “wrestling moves” where he would put the victim in a headlock until he “tap[ped] out,” indicating that the move was too forceful. This activity first occurred upstairs in the victim’s home. The defendant then took the victim’s wallet and credit cards before going downstairs.

In the kitchen, the defendant again put the victim in a headlock, but this time the victim collapsed. The defendant claimed the victim never tapped out. He became scared when he could not wake the victim. He then poured bleach around the kitchen and living room to cover up his presence, grabbed whatever items he could, and left in the victim’s car.

The State charged the defendant with first degree murder and tampering with physical evidence. The defendant moved to suppress all statements and evidence recovered by Broward law enforcement through the tracking of his cell phone with an unknown tracking device. The trial court denied the motion to suppress.

When the defendant was asked to present evidence to support his contention that something other than CSLI was used, defense counsel offered only that the defendant believed law enforcement was lying. The court concluded that no unknown tracking device was used after a deputy testified that only CSLI had been used. The trial court added that if a tracking device was used, the defendant had no expectation of privacy when using a cell phone in public.

The defendant next moved to suppress all evidence stemming from the arrest because the arrest was made outside of Bro-ward law enforcement’s territorial jurisdiction. The court also denied that motion.

The defendant also filed a motion seeking to require the State to admit the entire video recording of the defendant’s statement into evidence, under the best evidence rule and the rule of completeness. The trial court denied the request, specifically finding the rule of completeness inapplicable because the State did not offer the video into evidence. The court stated that if the desired portions of the statements were elicited when the defense cross-examined the detective, then section 90.806(1), Florida Statutes (2014), allowed the State to use the defendant’s prior convictions for impeachment.

The defendant later renewed his rule of completeness objection during the State’s direct examination of the detective; the court denied the motion. During a sidebar, the State suggested that the defendant was free to introduce the video in his portion of the ease. Rather than do so, the defense cross-examined the detective regarding the exculpatory portions of the defendant’s statement, which supported his defense of the victim’s death being an accident.

As a result, the jury was later advised of the defendant’s “nine prior convictions of felonies or crimes involving dishonesty.” The trial court instructed the jury that the prior crimes were not evidence of guilt and should only be used in assessing the defendant’s credibility.

The jury found the defendant guilty of first degree murder while engaged in the commission of a robbery and tampering with physical evidence. The court sentenced the defendant to life imprisonment with a concurrent term of 120 months. From his conviction and sentence, the defendant now appeals.

We find no merit in the defendant’s first argument that Broward law enforcement conducted a warrantless and unlawful search by using a tracking device to determine his location. Suffice it to say, law enforcement obtained a warrant for the use of CSLI to locate the defendant. See Tracey v. State, 152 So.3d 504 (Fla. 2014).

Nor do we find any merit in the defendant’s argument that Broward law enforcement arrested the defendant outside of its jurisdiction. The defendant volunteered to return to Broward where he was subsequently Mirandized, interrogated, and arrested.

In his last issue, the defendant argues the trial court abused its discretion in denying his motion in limine and overruling his subsequent objections concerning the introduction of the defendant’s entire recorded statement. He argues: (1) the rule of completeness applies; and (2) the trial court erred in permitting the State to impeach the defendant’s credibility with evidence of his prior felony convictions.

The State responds that the trial court properly ruled on the use of the defendant’s statement. The rule of completeness is inapplicable because the State did not introduce the video statement. And, the trial court correctly permitted the State to impeach the defendant after defense counsel cross-examined the detective about the self-serving parts of the defendant’s statement.

Self-serving statements are generally inadmissible under section 90.803(18), Florida Statutes (2014). However, the rule of completeness provides: “[w]hen a writing or recorded statement or pari thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part of any other writing or recorded statement that in fairness ought to be considered contemporaneously.” § 90.108(1), Fla. Stat. (2014) (emphasis added). The purpose of the rule is to “avoid the potential for creating misleading impressions by taking statements out of context.” Kaczmar v. State, 104 So.3d 990, 1000-01 (Fla. 2012) (quoting Larzelere v. State, 676 So.2d 394, 401 (Fla. 1996)).

We have held that the rule of completeness does not apply when the written or recorded statement is not introduced into evidence. Cann v. State, 958 So.2d 545, 549 (Fla. 4th DCA 2007); see also Hoffman v. State, 708 So.2d 962, 966 (Fla. 5th DCA 1998). “The state simply asked the deputy to tell the court and jury what appellant said. The rule of completeness is inapplicable when no portion of the taped statement is actually played for the jury.” Hoffman, 708 So.2d at 966.

Here, the State did not introduce the defendant’s recorded statement. It merely questioned the detective on direct examination about his conversation with the defendant. The defendant was free to do the same and did so on cross-examination. But in doing so, the trial court properly ruled the rule of completeness inapplicable.

Section 90.806(1), Florida Statutes (2014), provides:

When a hearsay statement has been admitted in evidence, credibility of the de-clarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant’s hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it.

The defendant argues however that he should not be subjected to impeachment through his prior felonies just because he cross-examines a witness about his statement. The defendant relies on Foster v. State, 182 So.3d 3 (Fla. 2d DCA 2015), in support of his position. There, the Second District held the defendant was entitled to have the jury hear the remainder of his statement without placing his credibility in issue.

We agree that the defendant’s position is supported by Foster. But, Foster runs contrary to section 90.806(1) and our precedent. See, e.g., Kelly v. State, 857 So.2d 949, 949 (Fla. 4th DCA 2003) (holding that the court properly allowed the state to admit the defendant’s convictions as impeachment evidence once the defendant elicited exculpatory statements through the interrogating officer).

The defendant’s position is also contrary to our supreme court’s decision in Kacz-mar. There, the State warned defense counsel that although the defendant could utilize the rule of completeness, it would open the door to impeachment with prior felonies under § 90,806. Kaczmar, 104 So.3d at 1001. In response to the warning, the defendant did not introduce the statements. Id. Our supreme court held the trial court did not abuse its discretion by not admitting the exculpatory statements. Id.; see also Huggins v. State, 889 So.2d 743, 756 (Fla. 2004) (providing that a defendant who succeeds in getting his exculpatory statements into evidence risks having those statements impeached through felony convictions).

Here, defense counsel brought out the exculpatory portions of the defendant’s statement during cross-examination of the detective. As a result, the court correctly permitted the jury to learn of the defendant’s nine prior felonies and crimes of dishonesty. We therefore affirm the defendant’s conviction and sentence. We also certify conflict with Foster.

Affirmed.

Warner and Gross, JJ., concur.


author: MAKAR, J.

text:
    Jeffrey Merwyn BROWN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-2546
    District Court of Appeal of Florida, First District.
    Opinion filed February 16, 2017
    D. Gray Thomas, Bryan S. Gowdy, Creed & Gowdy, P.A., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Matthew Pavese, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

MAKAR, J.

Upon defendant’s conviction, the trial court—at the State’s urging—verbally imposed at sentencing a “venire fee” in the amount of $1,000, ostensibly to offset costs associated with empaneling the jury. The court cited no statutory authority for the fee in the final judgment. Defendant timely, but unsuccessfully, challenged the fee saying it was unauthorized. On appeal, we initially affirmed, but defendant’s motion for rehearing makes evident that authority does not exist for imposition of a “venire fee.”

To begin, the phrase “venire fee” appears nowhere in Florida’s jurisprudence, which might explain why the trial judge seemed puzzled when the State asked for a “venire fee in the amount of $1,000.”

THE COURT: I’m sorry, what type of fee?
[THE STATE]: A venire fee.
THE COURT: Venire?
[THE STATE]: Yes, ma’am. Pursuant to Florida Statute 939.02.
THE COURT: Okay.

A handful of cases nationwide from around the turn of the 20th Century refer to a “venire fee,” primarily dealing with a defendant’s right to jury trial despite a failure to pay a fee for jurors’ service. See, e.g., N. J. Soc’y for Prevention of Cruelty to Animals v. Wilbur, 76 N.J.L. 266, 266, 69 A. 1010, 1011 (Sup. Ct. 1908) (error to deny jury trial in criminal case where defendant failed to advance venire fees). Likewise, “jury fees” is an infrequently used phrase in Florida law, primarily because such fees are not used except as permitted by statute, the only one identifiable being a summary proceeding (for example, an eviction) requiring a special ve-nire. § 51.011(3), Fla. Stat. (2016) (“If a special venire be summoned, the party demanding the jury shall deposit sufficient money with the clerk to pay the jury fees which shall be taxed as costs if he or she prevails.”).

The State claims the authority for a venire fee comes from section 939.02, Florida Statutes, which says: “All costs accruing before a committing trial court judge shall be taxed against the defendant on conviction or estreat of recognizance.” § 939.02, Fla. Stat. (2016). The State sees the statute as a general, all-purpose grant of authority for any costs arising from a criminal conviction including the costs of a jury. The defendant counters that this statute “merely governs when costs are to be imposed, rather than authorizing imposition of what particular costs or in any particular amounts.” Defendant says costs must specifically be authorized by statute and only then may they be “taxed against the defendant on conviction or estreat of recognizance.” Because no statute authorizes a “venire fee,” such a fee is improper.

Defendant has the better argument. Black letter law says that court-imposed costs in a criminal case must be statutorily authorized lest they be stricken. Carter v. State, 173 So.3d 1048, 1051 (Fla. 1st DCA 2015) (striking costs and remanding for the trial court to “re-impose those costs in the appropriate amounts if it provides statutory authority for their assessment”); Bradshaw v. State, 638 So.2d 1024, 1025 (Fla. 1st DCA 1994) (“[I]t is improper to impose additional court costs without reference to statutory authority, or an explanation in the record as to what the additional costs represent, which is sufficiently clear to permit a reviewing court to determine the statutory authority for the costs”). The reason is as follows:

It is well settled that costs cannot be assessed in a criminal case unless there is statutory authority for their imposition. ... This is because-“[c]osts as such in criminal cases were unknown to the common law. As a consequence, recovery and allowance of such costs rest entirely on statutory provisions and no right to or liability for costs exists in the absence of statutory authorization.”

Bradshaw, 638 So.2d at 1025 (citations omitted). Given that “common law” costs in criminal proceedings don’t exist, it would be a stretch to interpret section 939.02 as granting wholesale authority to impose any and all categories of costs even if they are not specifically identified in any statute. We note that no recorded case in section 939.02’s century-old existence has ever cited it as the authority for doing so. Section 939.02 does not set out any specific cost or fee, let alone a “venire fee.” Instead, it is best understood as a procedural statute describing when and under what circumstances all statutorily authorized costs may be imposed.

Moreover, the primary statute that allows for the costs of prosecution to be assessed against a convicted defendant, section 938.27(1), Florida Statutes, has been interpreted to disallow the “costs of judicial administration,” which include juror costs. See Mickler v. State, 682 So.2d 607, 609 (Fla. 2d DCA 1996) (“[J]uror costs are an ancillary cost of prosecution that are not recoverable under section 939.01 [renumbered as 938.27].”) “The reason is that they represent expenditures that must be made in order to maintain and operate the judicial system irrespective of specific violations of the law.” Id. Indeed, our court has held such costs are not statutorily authorized. Henderson v. State, 192 So.3d 638, 640 (Fla 1st DCA 2016) (reversing imposition of $1,000 of “juror costs” that are “costs of judicial administration” under section 938.27(1)); see also Davis v. State, 42 So.3d 807, 808-09 (Fla. 1st DCA 2010) (“The only limitations that have been recognized by Florida courts in construing the term ‘cost of prosecution’ are that courts have not permitted costs of judicial administration to be assessed.”). We see no basis for interpreting section 939.02 as allowing jury or “venire” costs that are disallowed under section 938.27(1).

For these reasons, we grant Brown’s motion for rehearing and order that the venire fee in the final judgment be stricken.

JAY and M.K. THOMAS, JJ„ CONCUR.

      . How the amount of $1,000 was determined is a mystery from the record.

      . The State postulates that "[t]here may be a circumstance where a jury is empanelled [sic], then for dilatory reasons the defense moves to continue the trial which would result in a subsequent jury selection process. Under these circumstances, the trial court may have accrued additional venire costs through a defendant's lack of diligence.” But it was the State that moved for the first continuance and Brown for the second (he’d hired a lawyer to replace the public defender), which the State did not oppose. Nothing reflects that a jury was empaneled either time.

      .The phrase "estreat of recognizance” is an antiquity, appearing only in section 939.02, which took root in 1873. It has never been used by any court or legislature nationwide, and appears to be the equivalent of breaching a bail bond. See Black's Law Dictionary 591 & 1299 (8th Ed. 2004) (definitions of "es-treat” and “recognizance”).


author: SLEET, Judge.

text:
    BELTWAY CAPITAL, LLC, Appellant, v. NIGEL LUCOMBE; Circle Trustee Company Inc.; and Mortgage Electronic Registration Systems, Inc., as Nominee for First Franklin, a Division of National City Bank, Appellees.
    Case No. 2D16-437
    District Court of Appeal of Florida, Second District.
    Opinion filed February 17, 2017.

      Manuel Farach of McGlinchey Stafford, Fort Lauderdale, for Appellant.
    Adam J. Knight, Laura L. Whiteside, and Matthew A. Kassel of Hicks Knight, P.A., Tampa, for Appellees Nigel Lucombe and Circle Trustee Co., Inc.
    No appearance for Appellee Mortgage Electronic Registration Systems, Inc.
   SLEET, Judge.

Beltway Capital, LLC (the bank), appeals the trial court’s order dismissing its amended complaint without prejudice for failure to contain a verification pursuant to Florida Rule of Civil Procedure 1.110(b) and denying its motion for leave to amend. Because the motion to dismiss was not properly noticed and the trial court abused its discretion in denying the bank’s motion to amend the complaint, we reverse.

The bank’s initial complaint for foreclosure against Nigel Lucombe contained a verification pursuant to rule 1.110(b). The bank subsequently filed an amended complaint but omitted the required verification. Lucombe filed a motion to dismiss challenging, among other things, the bank’s failure to comply with rule 1.110(b). The trial court denied the motion; Lu-combe then filed an answer and affirmative defenses but did not again challenge the missing verification. On the morning of trial, Lucombe orally moved to dismiss arguing that by failing to attach a verification to its complaint, the bank had failed to state a cause of action for foreclosure. Lucombe contended that he could raise this motion without prior notice and on the morning of trial pursuant to rule 1.140(h)(2). The trial court granted the motion to dismiss and denied the bank’s motion to amend, finding that the bank’s failure to verify the amended complaint was a fatal defect not capable of being corrected by amendment. The bank now appeals from this order. We have jurisdiction. See Fla. R. App. P. 9.080(b)(1)(A); Valcarcel v. Chase Bank USA NA, 54 So.3d 989, 990 (Fla. 4th DCA 2010) (“An order dismissing an action without prejudice and without granting leave to amend is a final appeal-able order.”).

We review a trial court’s ruling on the sufficiency of a complaint de novo. See Donado v. PennyMac Corp., 174 So.3d 1041, 1042 (Fla. 4th DCA 2015) (“Because appellants’ issue pertains to the sufficiency of the initial complaint, the appropriate standard of review is de novo.”). The bank was required to attach a verification to its complaint pursuant to rule 1.110(b) and section 702.015, Florida Statutes (2013). While a failure to include a verification may result in a dismissal without prejudice, the verification is not an element of a cause of action to foreclose on a note and mortgage. See Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014) (“[Fjoreclosure plaintiffs must show: (1) an agreement, (2) a default, (3) an acceleration of debt to maturity, and (4) the amount due.” (citing Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979))); see also Campbell v. Wells Fargo Bank, N.A., 204 So.3d 476, 480 (Fla. 4th DCA July 6, 2016) (holding that compliance with the verification requirement is not a “mandatory condition! ] precedent to suit” and that the trial court has discretion whether to dismiss the complaint for failure to comply). Accordingly, the bank’s failure to include a verification pursuant to rule 1.110(b) is not a defense that may be raised at any time under rule 1.140(h).

A bank’s failure to comply with rule 1.110(b) is subject to a motion to dismiss pursuant to rule 1.420(b), which provides that “[a]ny party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.” Rule 1.420(b) requires that a notice of hearing on a motion to dismiss be served in accordance with rule 1.090(d), which mandates service of a copy of the motion and a notice of hearing on the motion “a reasonable time before the time specified for the hearing.” Therefore, Lu-combe was required to file and properly notice a motion to dismiss based on the bank’s failure to comply with rule 1.110(b). Indeed, Lucombe had filed such a motion, which the court denied. While a trial court may reconsider an earlier ruling that it had made, under the circumstances here we conclude that it was improper for the trial court to hear and grant this oral motion on the morning of trial when the bank had not been properly noticed.

We also note that Lucombe’s use of the verification requirement to delay a trial on the merits overlooks the legislature’s intent in enacting section 702.015. “The certification requirement of the statute was not intended to be a prerequisite to suit but was instead intended to expedite the foreclosure process.” Campbell, 204 So.3d at 479-80 (citing § 702.015(1) (“The Legislature intends that this section expedite the foreclosure process by ensuring initial disclosure of a plaintiffs status and the facts supporting that status, thereby ensuring the availability of documents necessary to the prosecution of the case.”)). The verification requirement was also intended to avoid a waste of judicial resources. See In re Amendments to the Fla. Rules of Civil Procedure, 44 So.3d 555, 556 (Fla. 2010). Allowing a defendant to ambush the plaintiff by waiting until the morning of trial to orally raise a motion to dismiss based on the verification requirement does not further this purpose; it only delays resolution of the foreclosure suit. This court has previously held that objections to a party’s compliance with a statutory verification requirement can be waived if not timely raised. See, e.g., Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So.2d 579, 581 (Fla. 2d DCA 2004) (holding that a challenge to the verification of a complaint under section 760.11(1), Florida Statutes (2001), could be waived by failing to raise it at a time when the plaintiff “could have timely submitted an amended claim”).

In this case, the trial court should have allowed the bank an opportunity to amend the complaint. The lack of a verification is not the kind of error that cannot be corrected by amendment. See Rivero v. Rivero, 111 So.3d 233, 234 (Fla. 4th DCA 2013) (“The failure to verify a pleading which, by statute, is required to be verified does not constitute a jurisdictional defect; verification may be supplied by an amendment and relate back to the time the original unverified pleading was filed.”). “Florida Rule of Civil Procedure 1.190(a) requires that leave to amend be freely given unless a party has abused the privilege to amend.” Rohlwing v. Myakka River Real Props., Inc., 884 So.2d 402, 406 (Fla. 2d DCA 2004) (“Because a dismissal with prejudice is the ultimate sanction in the civil justice system, it is reserved for the most aggravating circumstances.”). Accordingly, we reverse and remand for the trial court to allow the bank to file an amended complaint that complies with rule 1.110(b).

Reversed and remanded with instructions.

CASANUEVA and SILBERMAN, JJ., Concur.

      . Rule 1.110(b)’s verification requirement was added by the Florida Supreme Court in 2010. The supreme court amended the rule in 2014, moving the verification requirement from rule 1.110(b) to rule 1.115(e). The bank filed its first amended complaint on December 30, 2011.


text:
    Brian Jovon NEWMAN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4405
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017
    Brian Jovon Newman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the November 12, 2014, judgment and sentence in Alachua County Circuit Court case number 01-2013-CF-004717-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROWE, KELSEY, and JAY, JJ., CONCUR.


author: WOLF, J.

text:
    Gabriel LOPEZ, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3828
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017
    Gabriel Nathan Lopez, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant alleges his consecutive mandatory minimum sentences were improper because it was apparent from the face of the record that the offenses arose from the same criminal episode and involved only one victim, and appellant did not discharge the firearm. See Williams v. State, 186 So.3d 989 (Fla. 2016). We agree, vacate appellant’s judgment and sentence, and reverse and remand for the trial court to enter an amended order providing for concurrent mandatory minimum sentences.

REVERSED and REMANDED with instructions.

ROBERTS, C.J., and B.L. THOMAS, J., CONCUR.


text:
    Marquis WEATHERS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3357
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017
    Marquis Weathers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent,
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed belated appeals from the January 4, 2016, judgments and sentences in Escambia County Circuit Court case numbers 2014 CF 004814 B and 2014 CF 004906 A. Upon issuance of mandate in this cause, copies of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal in each of the two cases. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

ROWE, KELSEY, and JAY, JJ., CONCUR.


text:
    Kenneth L. THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-3099
    District Court of Appeal of Florida, First District.
    Opinion filed February 21, 2017.
    Kenneth L. Thompson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the September 29, 2015, Order Denying Defendant’s Amended Motion for Postconviction Relief in Duval County Circuit Court case number 16-2011-CF-01106-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D).

ROWE, KELSEY, and JAY, JJ„ CONCUR.


author: MORRIS, Judge.

text:
    Audrey A. BRYAN, Appellant, v. Gary M. FERNALD, as Administrator Ad Litem, and Edward John, Appellees.
    Case No. 2D15-4830
    District Court of Appeal of Florida, Second District.
    Opinion filed February 22, 2017.
    Ann M. Allison of Allison Law Group, Temple Terrace; and Mary Ann Noud, Bradenton, for Appellant.
    Wil H. Florin and Eric P. Czelusta, Palm Harbor, for Appellees.
   MORRIS, Judge.

Audrey A. Bryan appeals an order on her petition to determine beneficiaries in the probate proceedings of her deceased mother’s estate. In determining the beneficiaries, the trial court concluded that the issue of the validity of the decedent’s marriage was res judicata. We disagree and reverse and remand for further proceedings.

I. Background

In 2007, Edward John opened the probate proceedings of the decedent’s estate. John named himself as the decedent’s surviving spouse and only known beneficiary. The decedent’s children were not served with any pleadings or orders in the probate case. In March 2009, the probate court entered an order of discharge, finding that the estate had been properly distributed and discharging John as personal representative. In June 2009, John petitioned to reopen the estate in order to pursue a medical malpractice claim against the doctor who treated the decedent before she died, Dr. Scott Plantz. The petition was served on the decedent’s four children, including Bryan. The estate was reopened, and the estate filed a medical malpractice lawsuit against Dr. Plantz. In 2012, Gary M. Fernald was appointed as administrator ad litem for the estate.

In 2015, Bryan filed a petition to determine intestate beneficiaries pursuant to section 733.105, Florida Statutes (2014), in the probate proceeding. In her petition, Bryan alleged that she and the decedent’s three other children were not notified of the administration of their mother’s estate. Bryan alleged that she and her siblings are entitled by law to an equal share of at least fifty percent of their mother’s estate and that if John cannot produce a valid marriage certificate proving that he was legally married to the decedent, Bryan and her siblings are entitled to an equal share of one hundred percent of the decedent’s estate. John and Fernald filed a response to Bryan’s petition, alleging that Dr. Plantz was behind Bryan’s petition. The response set forth numerous allegations of misconduct by Dr. Plantz in the pending medical malpractice case and the probate case. In response to Bryan’s allegations, John and Fernald argued that John was lawfully married to the decedent at the time of her death and that this issue was already determined in a 2013 order in the medical malpractice ease. In the 2013 order, the trial court denied Plantz’s amended motion for partial summary judgment on damages and found that “the person [John] married was the [d]ecedent.”

A hearing was held on Bryan’s petition on August 26, 2015. John and Fernald were represented by counsel, and Dr. Plantz also appeared with counsel. The parties all agreed that Bryan and her siblings are beneficiaries of the estate, but they disputed the validity of the marriage between the decedent and John. Bryan’s counsel argued that the issue was not controlled by the order in the medical malpractice case because that order was not a final order. The estate argued that the order constitutes a factual finding that John and the decedent were married at the time of the decedent’s passing. The trial judge stated that he did not “know how [he could] go beyond that,” and he wondered why he would “go back and reinvent the wheel that [the other judge] apparently spent considerable time and judicial energy on.” Bryan responded that she and her siblings had not had the opportunity to argue the issue to any court, and the trial judge seemed to agree that “it’s a due process issue.” The estate’s counsel argued that in depositions, Bryan and her sister did “not dispute that this was a valid and legal marriage.” Bryan’s deposition was read to the court, wherein she admitted that she witnessed her mother marry John in what appeared to be a valid wedding ceremony. Bryan’s counsel then argued that Bryan did witness a wedding ceremony but that Bryan had no idea that her mother had obtained the marriage certificate under a false name and identity. The trial judge stated that he was not going to reverse the judge in the medical malpractice case and found that that order “is res judicata on the issue.” He stated the following:

[T]his isn’t a factual issue as I contemplated when I reviewed the file and prepared for the hearing today. I think that I make a determination based upon the uncontested part of it with regard to the four adult children of the decedent and I make a ruling based on the findings of [the medical malpractice] order directly on point that I think is res judicata on the issue of the marriage and find that Mr. John was the spouse of the decedent.

In the written order, the trial court determined that Bryan and her three siblings are beneficiaries and that John is also a beneficiary as the decedent’s spouse. The trial court found that based on the earlier order in the separate medical malpractice case, res judicata applies and controls the issue of the validity of the marriage between John and the decedent. The trial court found that deposition evidence further established the validity of the marriage.

II. Analysis

On appeal, Bryan first argues that the doctrine of res judicata does not apply because the requirements for res judicata were not satisfied. Under the doctrine of res judicata,

[a] judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984)). Thus, res judicata applies when the following four identities are present: “(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.” Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004). This court reviews de novo the trial court’s application of res judicata. See Campbell v. State, 906 So.2d 293, 295 (Fla. 2d DCA 2004).

Here, the first two elements were not satisfied because the things sued for and the causes of action are different. In the medical malpractice case, the decedent’s estate is suing Dr. Plantz for damages and the cause of action is based on medical negligence. In the probate case, Bryan is asking for a determination of the decedent’s beneficiaries and the proper administration of the estate. The facts or evidence necessary to maintain the two causes of action are different. See Albrecht v. State, 444 So.2d 8, 12 (Fla. 1984) (“The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions”), superseded by statute on other grounds as stated in Bowen v. Fla. Dep’t of Envtl. Regulation, 448 So.2d 566 (Fla. 2d DCA 1984). Furthermore, the identities and qualities of the parties are not present in the two cases. Bryan was not part of the proceedings between the estate and Dr. Plantz when the court entered the order in the medical malpractice case, and Bryan was not in privity with the estate when it was asserting the validity of the marriage in the medical malpractice case. See Wildflower, LLC v. St. Johns River Water Mgmt. Dist., 179 So.3d 369, 374 (Fla. 5th DCA 2015) (“Res judicata binds the parties in the former action and their privies. A ‘privy is one who is identified with the litigant in interest.’ ’’(citations omitted)).

Moreover, res judicata does not apply in this case because “[a] final order is necessary for application of res judicata.” Thomson v. Petherbridge, 472 So.2d 773, 774 (Fla. 1st DCA 1985); Accent Realty of Jacksonville, Inc. v. Crudele, 496 So.2d 158, 160 (Fla. 3d DCA 1986) (“The entry of a final judgment or order is the common element that invokes the doctrines of both res judicata and collateral estoppel.”). The order entered in the medical malpractice case is not a final order because it merely denied Dr. Plantz’s motion for partial summary judgment. See Better Gov’t Ass’n of Sarasota Cty., Inc. v. State, 802 So.2d 414, 415 (Fla. 2d DCA 2001) (recognizing that an order denying summary judgment is not a final order). The medical malpractice case is still ongoing.

In conclusion, the trial court erred in ruling that “[t]he application of res judica-ta prevents [the court] from disturbing” the order in the medical malpractice case. It must be noted that in its order, the trial court further ruled that it would not “rule contrary” to the prior order because “the presented deposition testimony of [Bryan,] who recognized in her testimony the validity of the marriage between [John] and [the decedent,] is contrary to the position advocated by her attorney.” Even though Bryan testified in her deposition that she witnessed her mother marry John, Bryan’s attorney argued that at the time of the deposition, Bryan herself “didn’t know whether it was a legal binding marriage.” The trial court did not engage in an independent analysis of whether the marriage was valid under the applicable law. Rather, the trial court based its ruling on the prior order in the medical malpractice case. For the reasons stated, we reverse the order on appeal and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and LUCAS, JJ„ Concur.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.170(b)(5).

      . Noting that the case presented "a difficult and troubling fact pattern,” the trial court in the medical malpractice case found that "the person [John] married was the [d]ecedent. He is not claiming he was defrauded. Under the authorities reviewed[,] the [cjourt cannot declare the marriage invalid or void because the [d]ecedent used a different name.”

      . In denying Dr, Plantz’s motion for summary judgment in tire medical malpractice case, the trial court determined that Plantz was not entitled to a summary judgment in his favor on the issue of the validity of the marriage. Even though the trial court went on to find that the marriage was valid, it did not grant summary judgment in favor of the estate on that issue.


text:
    KATLINE REALTY CORP. and Charles Klar, Appellants, v. Gregg AVEDON, etc., Appellee.
    No. 3D16-1244
    District Court of Appeal of Florida, Third District.
    Opinion filed February 22, 2017

      Oded Chayoun, for appellants.
    Marder Law Firm and Mark A. Marder, for appellee.
    Before EMAS, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding: “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error;” further holding: “The written final judgment by the trial court could well be wrong in its reasoning, but the decision of the trial court is primarily what matters, not the reasoning used;” finally holding: “Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal”)


author: Per Curiam.

text:
    Jenny Evy RIDDLE, Petitioner, v. Alan Taylor RIDDLE and The Plank Factory, Inc., Respondents.
    No. 4D16-3805
    District Court of Appeal of Florida, Fourth District.
    February 22, 2017
    Chris Keith, Okeechobee, for petitioner.
    Susan R. Brown of Susan R. Brown, P.A., Plantation, for respondent Alan Taylor Riddle.
    Anthony J. Horky of Anthony J. Horky, P.A., Boca Raton, for respondent The Plank Factory, Inc.
   Per Curiam.

Petitioner seeks a writ of certiorari directed to a trial court order that disqualified her attorney from representing her in the pending divorce proceedings. Certiora-ri review lies. Lieberman v. Lieberman, 160 So.3d 73 (Fla. 4th DCA 2014). We grant the petition and quash the disqualification order upon accepting respondent’s concession that it is overbroad because it disqualifies counsel from “all aspects” of the case. See R. Regulating Fla. Bar 4-3.7(a) (“A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client ....”) (emphasis added); Lieberman, 160 So.3d at 74 (“As is well established by numerous Florida courts, the fact that Ferrer [attorney and current wife] was a potentially necessary witriess at the contempt hearing would not prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings.”); see also KMS Rest. Corp. v. Searcy, Denney, Scarola, Barnhart & Shipley P.A., 107 So.3d 552, 552 (Fla. 4th DCA 2013).

Disqualification of a party’s chosen counsel is a drastic remedy that should be used sparingly. Lieberman, 160 So.3d at 75. Here, petitioner’s attorney’s failure to appear for deposition seemingly resulted in the broad order. While respondent asked the trial court to compel counsel to appear for the deposition as an alternative to disqualification, the trial court failed to rule on that portion of the motion. The record furnished, which includes an evidentiary hearing, reveals that the trial court cannot adequately consider the motion to disqualify and its scope until counsel’s involvement in the underlying dissolution of marriage case is clarified. See Quality Air Conditioning, Inc. v. Vrastil, 895 So.2d 1236, 1238 (Fla. 4th DCA 2005); Singer Island Ltd. v. Budget Constr. Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998); Nucci v. Simmons, 20 So.3d 388, 391 (Fla. 2d DCA 2009).

Consequently, we quash the order that disqualifies counsel from representing petitioner “in all aspects” of the case. The case is remanded for the trial court to compel counsel’s deposition before it revisits the disqualification issue.

Petition Granted, Order Of Disqualification Quashed, Case Remanded.

Gerber, Levine and Conner, JJ., concur.


text:
    Morais L. WITTER, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005 W-3, Appellee.
    No. 4D16-818
    District Court of Appeal of Florida, Fourth District.
    February 22, 2017
    Catherine A. Riggins, Miami, for appellant.

      No appearance for appellee.
   Per Curiam.

Moráis Witter seeks review of an order imposing sanctions against his attorney and the corresponding final order awarding attorney’s fees. Appellant argues that the orders were legally insufficient because the trial court failed to make any express findings of bad faith conduct. We agree and reverse.

In August 2014, Deutsche Bank filed a verified foreclosure complaint against appellant. Appellant filed a motion to quash service of process and set the motion for an evidentiary hearing on May 11, 2015. On May 8, 2015, appellant’s attorney filed a notice of calendar conflict with the hearing date, explaining that she was scheduled for a trial in Miami-Dade County and was unable to get the trial continued. She requested that the motion to quash hearing be rescheduled. Her May 8 notice included a certificate of service, certifying that she had emailed a copy of the notice to opposing counsel.

Deutsche Bank’s attorney and appellant appeared at the hearing on May 11, but appellant’s attorney did not. Counsel for Deutsche Bank told the trial court that appellant’s attorney did not contact his office regarding a continuance of the hearing. He made an ore terms motion for attorney’s fees as sanctions against appellant’s attorney. The trial court granted the motion and instructed Deutsche Bank’s attorney to prepare an order clarifying that the attorney’s fees were awarded against appellant’s attorney—not appellant.

On May 13, 2015, the trial court then entered an order continuing the hearing and stating that appellant’s attorney was “responsible for sanctions in favor of [Deutsche Bank’s] attorney for having to appear at the scheduled hearing.” The trial court later entered a final order establishing the amount of attorney’s fees. This appeal ensued.

“The standard of review of an order granting sanctions for attorney misconduct is abuse of discretion.” Rivero v. Meister, 46 So.3d 1161, 1163 (Fla. 4th DCA 2010). A trial court’s decision to impose fees on an attorney “must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” Moakley v. Smallwood, 826 So.2d 221, 227 (Fla. 2002). Therefore, there must be a high degree of specificity to support a finding of bad faith conduct. Id.

In Rivero, the plaintiff filed a motion for sanctions, alleging that the defendants and their attorneys failed to appear at a scheduled trial date. 46 So.3d at 1162. The trial court held a hearing on the motion, and without making an express finding of bad faith conduct, granted the motion. Id. On appeal, we reversed the trial court’s decision, stating as follows:

Here, the trial court did not make an express finding of bad faith conduct. The trial court also did not make any detailed factual findings describing specific acts of bad faith conduct that resulted in the plaintiffs unnecessary incurrence of attorneys’ fees. Instead, the trial court found that the defendants’ attorneys were merely negligent. Because the trial court did not make an express finding of bad faith conduct, we are required to reverse.

Id. at 1163.

Similarly, in this case, the trial court failed to make an express finding of bad faith conduct when imposing sanctions against appellant’s attorney. Accordingly, we reverse that portion of the trial court’s May 13, 2015 order imposing sanctions and the subsequent final fee award.

Reversed.

Taylor, Levine and Conner, JJ., concur.


text:
    Damas JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-315
    District Court of Appeal of Florida, Fourth District.
    February 22, 2017
    Damas Joseph, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

The defendant appeals the summary denial of his rule 3.850 motion. We find no merit in the issues raised in grounds IB, 2, and 3. The trial court denied these grounds and we affirm. The trial court however did not rule on ground 1A. We therefore reverse in part and remand the case to the trial court to rule on ground 1A of the defendant’s motion. Kafus v. State, 933 So.2d 1267 (Fla. 2d DCA 2006) (affirming the denial of the addressed claims, but reversing for the trial court to rule on the claims not addressed).

Affirmed in part; reversed in part.

Taylor and Forst, JJ., concur.