author: KHOUZAM, Judge.

text:
    Gary W. KAMIN and Audrey T. Kamin, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, substituted for Citimortgage, Inc.; Unknown Tenant #1, n/k/a Annalee Kamin; Citibank, National Association, successor by merger to CFSB, National Association, successor by merger to Citibank Federal Savings Bank; John K. MacDonald; Bridlewood Homeowner’s Association, Inc.; American Express Centurion Bank; any and all Unknown Parties Claiming by, through, Under and Against the Named Individual Defendant(s) who are not known to be Dead or Alive, Whether Unknown Parties may Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants, Appellees.
    Case No. 2D16-2457
    District Court of Appeal of Florida, Second District.
    Opinion filed October 20, 2017.
    Rehearing Granted November 21, 2017

      Mark P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of Lord Scott, PLLC, Tampa, for Appellants.
    Jason F. Joseph of Gladstone Law Group, P.A., Boca Raton, for Appellee Federal National Mortgage Association (“FNMA”).
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Gary and Audrey Kamin appeal the final summary judgment of foreclosure entered in favor of Federal National Mortgage Association (FNMA), the substitute party plaintiff for CitiMortgage, Inc. (CitiMort-gage). Because there is a genuine issue of material fact as to whether CitiMortgage gave the Kamins notice of default as required by paragraph 22 of the mortgage, we reverse the final judgment and remand for further proceedings. We express no opinion on the other issues raised on appeal because this issue is dispositive.

In January 2002, the Kamins executed a note and mortgage. On January 16, 2013, CitiMortgage filed a foreclosure complaint against the Kamins, alleging that all conditions precedent had been performed. Attached to the complaint were copies of the note indorsed in blank and the mortgage as well as various other documents. In response, the Kamins filed a motion to dismiss the complaint. The Kamins did not file an answer or any affirmative defenses to the complaint. FNMA was later substituted as plaintiff for CitiMortgage. Upon substitution, the Kamins filed an amended motion to dismiss and for summary judgment. The trial court did not rule upon the Kamins’ amended motion.

On August 21, 2015, FNMA filed a motion for summary judgment. It attached a copy of CitiMortgage’s notice of default letter addressed to the Kamins and an affidavit from an employee of its loan sub-servicer, Seterus Inc. The Seterus affidavit stated, in pertinent part, that “[t]he [Ka-mins] were properly sent notice prior to acceleration of the loan, and prior to the filing of the foreclosure action, pursuant to the terms required in the Note and Mortgage.” The Seterus affidavit also provided that this information was taken from its “business records,” which were attached to the affidavit.

In response to FNMA’s motion for summary judgment, the Kamins filed affidavits declaring that they had “never received any such notice from Plaintiff [CitiMort-gage] (or anyone purporting to act [sic] Plaintiffs behalf)” as required by paragraph 22 of the mortgage. Paragraph 22 provides, in pertinent part, that following a breach of the mortgage, the lender must “give notice” of the default and an opportunity “to cure the default” prior to acceleration of the loan. Such notice, according to paragraph 15' of the mortgage, is “deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.”

After holding a hearing on FNMA’s motion, the trial court granted FNMA’s motion for summary' judgment and entered final judgment of foreclosure. The Kamins filed a motion for rehearing, arguing in part that there was a genuine issue of material fact as to whether Citi-Mortgage mailed the notice of default. The trial court denied the motion, and this appeal followed.

We review a trial court’s order granting summary judgment de novo. Verizzo v. Bank of N.Y., 28 So.3d 976, 977 (Fla. 2d DCA 2010). If a plaintiff moves for summary judgment before an answer is filed, the plaintiff “must-not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010); see also Verizzo, 28 So.3d at 977 (“If a plaintiff files a motion for summary judgment before the defendant answers the complaint, ‘the plaintiff must conclusively show that the defendant cannot, plead'a genuine issue of material fact.’ ” (quoting E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So.2d 763, 764 (Fla. 2d DCA 1987))).

We agree with the Kamins that FNMA failed to. meet this; burden because the record reflects that a genuine issue of material fact exists as to whether FNMA’s predecessor, CitiMortgage, gave the Ka-mins notice of default. Though in a different procedural posture, this court dealt recently with a similar issue in Edmonds v. U.S. Bank National Ass’n, 215 So.3d 628 (Fla. 2d DCA 2017). There, after explaining that paragraph 22 requires the lender to provide notice of default to the borrowers as a.condition precedent to filing suit and that such notice is “deemed to have been given” under paragraph 15 when it is “mailed by first class mail or when actually delivered,” this court held that the substitute party plaintiff failed to prove at trial that the original plaintiff gave the defendants' notice of default. Id. at 629-30. Indeed, we rejected the notion that a foreclosing plaintiff can prove that a lénder mailed or actually delivered the default letter to the borrowers simply through the introduction of the actual default letter into evidence. See id. at 630 (“Although the letters were admitted into evidence, the fact that they were drafted is insufficient by itself to show that they were mailed.”).

This court in Edmonds further rejected testimony from an employee of the substitute plaintiff regarding the original plaih-tiff s general mailing procedures or practices.' The employee testified in general that it was “the business practice [of the original plaintiff] to send letters on loans that are delinquent and these letters are sent every month.” Id. We reasoned that such “testimony was insufficient to prove that the letters were mailed".because the employee had “no knowledge of [the original plaintiffs] mailing procedures or practices” and was “never employed by [the original plaintiff], the entity that drafted the letters.” Id. at 630-31 (“A company’s routine business practice may give rise to a rebuttable presumption of mailing, but ‘the witness must have personal knowledge of the company’s general practice in mailing letters.’ ” (quoting Allen v. Wilmington Trust, N.A., 216 So.3d 685, 688 (Fla. 2d DCA 2017))). Accordingly, because, there was insufficient evidence to prove that all conditions precedent were performéd, this court reversed the final judgment. Id. at 631.

Here, FNMA’s evidence—the Seterus affidavit and the notice of default letter— fails to conclusively establish that the-Ka-riiins could not raise any genuine issue of material fact concerning CitiMortgage’s compliance with paragraph 22. Although the Seterus affidavit states that the Ka-mins “were properly sent notice prior to acceleration of the loan[ ] and prior to the filing of the foreclosure action,” such a statement lacked a sufficient basis to prove that CitiMortgage actually provided notice of default to the Kamins.’ The Seterus affidavit neither asserted that the employee had personal knowledge of CitiMortgage’s routine business practices as they relate to mailing notice letters • nor included “any evidence that the notice letter had been mailed, such as a return receipt or mailing log.” Allen, 216 So.3d at 688; see also Edmonds, 215 So.3d at 630. And though FNMA attached CitiMortgage’s default letter to its motion for summary judgment, the letter’s mere existence only demonstrates, that it was drafted, not that it was “mailed or actually, delivered.” Edmonds, 215 So.3d at 630. Thus, because there is a genuine issue of material fact as to whether CitiMortgage complied with all conditions precedent, we reverse the 'final summary judgment of foreclosure and remand* for further proceedings.

Reversed and remanded.

LUCAS, J., and CARROLL, HUNTER W, ASSOCIATE JUDGE, Concur.

      . The Kamins contend that their affidavits create a genuine issue of material fact regarding whether CitiMortgage actually sent the notice of default. We reject their argument and decline to hold that evidence of nonre-ceipt of a notice of default letter is sufficient to create a genuine issue of material fact as to whether the notice had been sent. Paragraph 15 of the mortgage does not require proof of receipt. Rather, in order for notice to be "deemed” given, paragraph 15 simply requires proof of first class mailing or proof of delivery to the borrower’s notice address.

      . The record on appeal does not include a transcript of the hearing on FNMA's motion for summary judgment. However, a hearing transcript is usually "not necessary for appellate review of a summary judgment.” Houk v. PennyMac Corp., 210 So.3d 726, 730 (Fla. 2d DCA 2017) (quoting Shahar v. Green Tree Servicing LLC, 125 So.3d 251, 254 (Fla. 4th DCA 2013)),


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WATERS MARK DEVELOPMENT ENTERPRISES, LC, Appellant, v. BREVARD COUNTY, Florida, Appellee.
    Case No. 5D16-1302
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    Rehearing and Rehearing En Banc Denied November 29, 2017
    John H. Pelzer, Glenn N. Smith, and Elizabeth Adler, of Greenspoon Marder, P.A., Fort Lauderdale, for Appellant.
    Dale A, Scott and Michael J. Roper, of Bell & Roper, P.A., Orlando, for Appellee.
   PER CURIAM.

We conclude that the. applicable statute of limitations did not commence to run until Appellee denied Appellant’s application for site plan approval on October 31, 2012. See M & H Profit, Inc. v. City of Panama City, 28 So.3d 71 (Fla. 1st DCA 2009). We distinguish Citrus County v. Halls River Development, Inc., 8 So.3d 413 (Fla. 5th DCA 2009). In that case, the challenged government act involved the reclassification of the land use category on a particular piece of property.

Accordingly, we reverse and remand this cause for further proceedings. In do» ing so, we express no view on the merits of the claim.

REVERSED AND REMANDED.

TORPY, EDWARDS and EISNAUGLE, JJ., concur.


text:
    WELLS FARGO BANK, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006 FRE1 Asset-Backed Pass-Through Certificates, Appellant/Cross-Appellee, v. Calvin RUTLEDGE, Appellee/Cross-Appellant, and Bruce Dias; Harbor Towers Owners Association, Inc.; Mary Lynne Dias; Unknown Tenant(s) in Possession of the Subject Property, Appellees.
    Case No. 2D16-244
    District Court of Appeal of Florida, Second District.
    Opinion filed October 20, 2017
    Rehearing Denied November 28, 2017

      Shaib Y. Rios of Brock <& Scott, PLLC, Ft. Laudersale (withdrew after initial briefing); Morgan L. Weinstein of Van Ness Law Firm, PLC, Deerfield Beach (substituted as counsel of record), for Appellant/Cross-Appellee.
    John C. Dent., Jr., and Jennifer A. McClain of Dent & McClain, Chartered, Sarasota, for Appellee/Cross-Appellant Calvin Rutledge.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

This appeal/cross-appeal involves two parallel foreclosure actions against Bruce and Mary Lynne Dias, one initiated by Wells Fargo Bank in December 2010 and the other initiated by Harbor Towers Owners Association in February 2011. In Harbor Towers’ suit, summary judgment was entered in favor of Harbor Towers and the property was sold at public auction to Calvin Rutledge. The summary judgment in that suit was later vacated as void as to Wells Fargo, which had been improperly joined as a party.

In Wells Fargo’s suit, summary judgment was entered in favor of Rutledge, who had been added as a party to the Wells Fargo suit after he bought the property. Concluding that the uncontroverted evidence showed Mary Lynne Dias’s signature on the note and mortgage was forged, rendering the documents void, the court granted Rutledge title free and clear of Wells Fargo’s claims. Though Wells Fargo challenged Rutledge’s standing to raise the forgery defense, the court did not explicitly address the standing argument in its summary judgment order. This court reversed on appeal, determining—-without mention of standing—that a material issue of fact remained on the forgery defense. See Wells Fargo Bank, N.A. v. Rutledge, 148 So.3d 533, 535 (Fla. 2d DCA 2014).

On remand, a bench trial was held. Rutledge submitted additional evidence in support of the claim that Ms. Dias’s signature had been forged. Specifically, he submitted Ms. Dias’s deposition, in which she testified that she had not signed the note or mortgage and that she was not present when they were signed. She also testified that she and Mr. Dias were no 'longer married. Asked when they were “separated or divorced,” she responded simply “2007.” Wells Fargo did not present any evidence to rebut Ms. Dias’s deposition testimony, and the trial court found that Ms. Dias’s signature had been forged.. However, the court requested the parties submit memoranda addressing the effect of the forgery, considering that the Diases were no longer married.

Wells Fargo again challenged Rutledge’s standing to raise the forgery defense, but the trial court was under the misimpression that this issue had been resolved in Rutledge’s favor in the previous appeal and that, therefore, it could not be addressed on remand. Ultimately, the trial court entered a final judgment of foreclosure on Mr. Dias’s one-half interest in the property in favor of Wells Fargo, reasoning that the Diases owned the property as tenants in common following their divorce. Wells Fargo timely appeals, and Rutledge timely cross-appeals. We reverse and remand because Rutledge does not have standing to raise Ms. Dias’s-forgery defense-and there was no evidence presented to support the court’s conclusion that Wells Fargo was entitled to foreclose on a one-half interest in the property.

The question of whether Rutledge could raise the forgery defense was not squarély addressed by this court’s previous opinion, and therefore the trial court erred in declining to resolve the issue on remand. Rutledge is not a party to or a third-party beneficiary of the note and mortgage, the agreements that. Wells Fargo seeks to enforce in its foreclosure suit. See Pealer v. Wilmington Trust Nat’l Ass’n ex rel. MFRA Trust, 212 So.3d 1137, 1139 (Fla. 2d DCA 2017) (Sleet, J., concurring) (“[T]he bank’s standing to foreclose derives from its right to enforce the note and mortgage.” (citing St. Clair v. U.S. Bank Nat’l Ass’n, 173 So.3d 1045, 1047 (Fla. 2d DCA 2015))). Rather, Rutledge is a subsequent purchaser who was at least constructively aware of Wells Fargo’s recorded lis pendens when he purchased the property. Rutledge, 148 So.3d at 535; see also Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087, 1091 (Fla. 2d DCA 2015) (holding that constructive notice of any superior interest documented in the official records is imputed to subsequent purchasers), review denied, No. SC16-945, 2016 WL 6998444 (Fla. Nov. 30, 2016); CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs of Gendron, 198 So.3d 3, 7 (Fla. 2d DCA 2015) (“[T]he law is clear that if a recorded mortgage is valid on its face, a subsequent purchaser ‘is assumed to have recognized it as a valid lien against the property which he is buying.’” (quoting Spinney v. Winter Park Bldg. & Loan Ass’n, 120 Fla. 453, 162 So. 899, 904 (1935))). Accordingly, Rutledge purchased the property subject to Wells Fargo’s superior interest, and his subordinate interest stemming from his possession of the property is limited. See Pealer, 212 So.3d at 1138-39; Whitburn, 190 So.3d at 1091-92. He cannot participate in Wells Fargo’s foreclosure action as if he were a party to the note and mortgage; thus, he cannot challenge the mortgage’s validity, as he attempted to do in this case. See Eurovest, Ltd. v. Segall, 528 So.2d 482, 483 (Fla. 3d DCA 1988) (“[A] purchaser who takes title to property subject to a mortgage without assuming any personal liability for repayment of the underlying debt is ,.. estopped from contesting the validity of the mortgage,”); Gendron, 198 So.3d at 7 (quoting Eurovest with approval). Until the sale is formally set aside, he may still assert those limited rights available to him as a subsequent purchaser. See Eurovest, 528 So.2d at 483 (stating that a subsequent purchaser does retain some legal and-equitable remedies, including “his equitable right of redemption [and] his right to participate in excess proceeds of the sale following any foreclosure proceeding”).

Moreover, there was no evidence presented to support the court’s determination that Wells Fargo was entitled to foreclose on a one-half interest in the property. It was not until the end of the trial, after finding that Ms. Dias’s signature had been forged, that the court sua sponte asked the parties what effect the forgery and the Diases’ divorce had on the validity of the note and mortgage. The parties submitted memoranda but never took discovery or presented evidence specifically on this issue. Reasoning that the Diases originally owned the property as tenants by'the entirety and then by tenants in common upon their divorce, the court concluded that Mr. Dias retained a one-half interest in the property and that Wells Fargo could foreclose on his interest— even though Wells Fargo’s lien against Ms. Dias’s one-half interest in the property was unenforceable. But there was no evidence (such as a final judgment of dissolution) or testimony presented to establish when the couple was divorced or whether the property had been awarded in a judgment of dissolution. Ms. Dias only testified that she had been married to Mr. Dias in 2006, that they were “separated or divorced” in 2007, and that they were no longer married at the time of her deposition in 2015. While Ms. Dias did state that she and Mr. Dias owned the property, she also maintained that she never signed the relevant note .or mortgage—raising the question of whether Mr. Dias had the authority to enter, into the note or mortgage without her in the first place. See Sharp v. Hamilton, 520 So.2d 9, 10 (Fla. 1988) (“En-tireties property is not subject to a lien against only one tenant”). Without any evidence to support the court’s findings that the note and mortgage continued to be valid and enforceable as to a one-half interest retained by Mr. Dias, it was error’to enter final judgment of foreclosure on that interest.

For the reasons set forth above, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

BLACK and SLEET, JJ„ Concur.


author: KELSEY, J. WINSOR, J.,

text:
    Earl Raymond CAMPOS, Appellant, v. Joana CAMPOS, Appellee.
    CASE NO. 1D16-5857
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017
    Rehearing Denied December 12, 2017

      Emilian “Ian” Bucataru, Bucataru Law Firm, PLLC, Tallahassee, for Appellant.
    James C. Banks, Banks and Sweeting, P.A., Tallahassee, for Appellee.
   KELSEY, J.

Although the parties’ dissolution of marriage became final in 2005, they have continued to litigate timesharing and related issues since then in a manner that one of many circuit judges serially assigned to the case aptly described as “disastrous.” At the center of the fray are former husband’s ongoing attempts to earn reunification with the parties’ two children, who were preschoolers when this started. The order on appeal denies the former husband’s motion under Florida Rule of Civil Procedure 1.540(b)(4) to vacate all orders and “proceedings” in this case from 2015 forward. For the reasons that follow, we reject the former husband’s arguments, and dismiss this appeal for lack of jurisdiction, without prejudice to new proceedings on remand.

Parenting Motions and Orders

The litigiousness and duration of this case become a feature because so many judges have presided over it through the years. The record reflects several cycles of orders limiting or eliminating the former husband’s parenting time, followed by motions for modification or reunification, all of which were denied. Relevant to this appeal, the former husband moved for reunification again in 2014. During the 2015 evidentiary hearing, when a certain pediatrician’s name came up, the trial judge reminded the parties on the record that he had disclosed earlier—in a 2009 hearing when that judge was briefly assigned to the case—that the pediatrician also saw one of the judge’s children. The former wife’s counsel acknowledged the previous disclosure and stated there was no objeetion. Former husband did not object, either. The trial court denied that motion without prejudice, and the former husband did not appeal (although it was an appeal-able non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii)b (allowing appeals in family law matters from non-final orders that determine “the rights or obligations of a party regarding child custody or time-sharing under a parenting plan”)).

The predecessor judge entered a separate order on child support and attorney’s fees, which recited that it was memorializing the parties’ stipulation. The former husband initially challenged that order, but upon being reminded through a motion for sanctions that he had stipulated to it, withdrew his challenge.

In 2016, before a successor judge, the former husband again moved for reunification, or for reconsideration of previously imposed parenting restrictions. The parties engaged in motion practice and discovery on that new motion. The former husband did not object when the former wife filed transcripts of evidentiary hearings held before the predecessor judge in 2015. The successor judge held a new evidentia-ry hearing on the 2016 motion, and entered an order on July 20, 2016, denying the former husband’s motion for reunification—again without prejudice. Again, the former husband did not appeal the order denying reunification, although he had appellate counsel and it was an appealable order under Rule 9.130(a)(3)(C)(iii)b.

Three weeks after the appeal deadline expired on that order, the former husband filed a motion to vacate under Rule 1.540(b)(4) (despite seeking to retain some favorable aspects of the predecessor judge’s rulings). This motion noted that the predecessor judge sitting on the case in 2015 had done more in 2009 than merely disclose the involvement of his own child’s pediatrician: he had entered an order re-cusing himself from the case. Thus, the former husband argued, the predecessor judge’s 2015 orders were void, as was all record activity from that point forward including the 2016 orders.

We reject the former husband’s argument that these circumstances created jurisdiction for this appeal. We also write to reject the former husband’s argument that because the predecessor judge had re-cused himself in 2009, we should rewrite history by striking from the record everything that occurred after the predecessor judge was reassigned to the case in 2015, including evidentiary hearings and their sworn testimony, the successor judge’s July 20, 2016 order denying reunification without prejudice, and the December 22, 2016 order denying the motion to vacate.

Appellate Jurisdiction

It is true that orders entered by a re-cused judge are void. Davis v. State, 849 So.2d 1137, 1138 (Fla. 1st DCA 2003). But that is not the issue. The issue is whether the order denying the former husband’s motion to vacate is appealable, and thus whether we have jurisdiction.

The former husband relies on the timesharing provision of the non-final appeal rule, Rule 9.130(a)(3)(C)(iii)b, to challenge the part of the December 22, 2016 order on appeal reaffirming that reunification was denied without prejudice. As already noted, former husband could have appealed the July 20, 2016 order denying reunification if he had done so timely; but the trial court’s repeating the same ruling in the later order denying the motion to vacate cannot revive an appeal period. Caldwell v. Wal-Mart Stores, Inc., 980 So.2d 1226, 1229 (Fla. 1st DCA 2008).

The former husband relies on Rule 1.540(b)(4) as creating jurisdiction over the recusal-related issues, asserting 'that his motion to vacate was a “timely and authorized motion for relief from judgment” under Florida Rule of Appellate Procedure 9.130(a)(5). Perhaps it was timely, since Rule 1.540(b)(4) is not subject to a specific time limit; but it was not authorized. ,

Rule 1.540(b)(4) applies only to final judgments, decrees, and orders. Fla. R. Civ. P. 1.540, comment (“Moreover, as in the Federal Rule [60], Rule 1.540(b) does, not extend to interlocutory judgments.”); Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003) (“An order entered on a motion to vacate a non-final order, even where the motion mislabels the non-final order as final, is not reviewable under. Florida Rule of Appellate Procedure 9.130(a)(5),”); see Capone v. Philip Morris USA, Inc., 116 So.3d 363, 372 (Fla. 2013) (construing companion rule 1.530 as authorizing rehearings of “orders and judgments which are final in nature”); Laytner v. Humble Oil & Ref. Co., 262 So.2d 675, 677 (Fla. 1972) (construing rule 1.530 as applying to final judgments and orders “directed to an otherwise appeal-able final judgment”); De La Osa v. Wells Fargo Bank, N.A., 208 So.3d 259, 262-64 (Fla. 3d DCA 2016) (On Rehearing En Banc)' (construing Rule 1.540(b)(4) as applying only to final judgments, decrees, and orders); see also Fla. R, Jud. Admin. 2.430(2) (equating “judgment” with “final order, final judgment, final docket entry, final dismissal, or nolle prosequi [that] has been entered as to all parties”)- (quoted in De La Osa, 208 So.3d at 262).

The predecessor judge’s 2015 orders and the-successor judge’s 2016 orders were non-final orders. They differ materially from final judgments within the scope of Rule 1.540(b)(4), under which relief, “is only available in extraordinary circumstances.” Pollock v. T & M Invs., Inc., 420 So.2d 99, 103 (Fla. 3d DCA 1982). In contrast to final judgments, interlocutory orders are subject to judges’ reconsideration sua sponte, even to -the point of withdrawing them completely or reversing the initial ruling. Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998) (recognizing inherent authority of trial judges to reconsider interlocutory orders); LoBello v. State Farm Fla. Ins. Co., 152 So.3d 595, 560 (Fla. 2d DCA 2014) (quoting Oliver v. Stone, 940 So.2d 526, 529 (Fla. 2d DCA 2006) (“It is well established that a trial court may reconsider and modify interlocutory orders at any time until - final judgment is entered.’’)). After a ease is assigned to a different judge, a successor judge .has the inherent authority to reconsider. prior interlocutory orders; ,and a party can invoke this, inherent authority by motion, as the former husband did here. See LoBello, 152 So.3d at 600 (quoting Oliver, 940 So.2d at 529). In. the context of disqualification or recusal of a predecessor judge, the same inherent reconsideration authority is recognized by rule. See Fla. R. Jud. Admin. 2.330(h) (allowing successor judge to reconsider and vacate or amend prior factual or legal rulings by a disqualified judge on motion for reconsideration filed within twenty days after the order of disqualification (or later upon good cause shown)). In addition, the former husband could have taken an interlocutory appeal from the orders denying him resumed parenting, but he did not. See Fla. R. App. P. 9.130(a)(3)(C)(iii)b.

All of these authorized methods of addressing interlocutory orders further demonstrate why such orders are not reviewable under Rule 1.640(b)(4); Because the orders challenged in the former husband’s motion under Rule 1.540(b)(4) were not final, the former husband’s motion was not “authorized” within the meaning of Rule 9.130(a)(5). We do not have jurisdiction, and dismiss the appeal. We note that, as provided in the trial court’s orders denying the former husband timesharing, this ruling is without prejudice to the former husband’s seeking timesharing before the trial court upon proper pleading and sufficient evidence. § 61.13(3), Fla. Stat. (2016) (requiring “a showing of a substantial, Material, and unanticipated change-in circumstances and a determination that the modification is in the best interests of the child”).

Voiding “Proceedings”

Finally, even assuming we had jurisdiction over the merits, we would be required to reject as meritless the former husband’s argument that all papers, procedural orders, transcripts, and other record' contents must be stricken and rendered nullities after a previously recused judge enters an order. The only legal authority offered for this proposition is a sentence in the Florida Jurisprudence section on “Judgments and Decrees.” 19 Fla. Jur., Judgments & Decrees § 254, This makes the point that if a final judgment, decree, or order is void, then all proceedings based on that void order are themselves void and nullities. That -principle' is true, but the former husband misapplies it. Correctly applied, the principle means that judicial action by a recused judge is void, with the exception of the judge’s memorializing in writing a ruling already rendered orally. Fischer v. Knuch, 497 So.2d 240, 243 (Fla. 1986) (“When a [recused] judge has heard the testimony and arguments and rendered an oral ruling in a proceeding, the judge retains the authority to perform the ministerial act of reducing that ruling to writing.”). The “proceedings” subject to being voided are limited to judicial acts. See Overcash v. Overcash, 135 So.3d 575, 576 (Fla. 5th DCA 2014) (mem.) (reversing order of contempt based on a void order); Fisher v. State, 840 So.2d 325, 330-31 (Fla. 5th DCA 2003) (invalidating as void an order entered after proceeding for which no notice was given); Wells v. State, 495 So.2d 1221, 1222 (Fla. 1st DCA 1986). (determining order of violation of probation was void where underlying probation order was void). The principle of voiding “proceedings” based on earlier void judgments or orders does not mean what the former husband says it means.

DISMISSED.

WINOKUR, J., CONCURS; WINSOR, J., CONCURS IN SUBSTANTIAL PART WITH OPINION.

WINSOR, J.,

concurring in substantial part.

I concur in all but the last section. Because we lack jurisdiction to consider this appeal, I would not address the merits of appellant’s claims.

      . Rule 1.540 provides in pertinent part that ‘‘[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: ... (4) that the judgment or decree is void ....”

      . It would seem prudent for clerks of court to document recusals conspicuously within court files to protect against inadvertent reassignments to recused judges.


text:
    Micah LAMB, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2550
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017.
    Rehearing Denied December 6, 2017
    Micah Lamb, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits.

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


text:
    LEE MEMORIAL HEALTH SYSTEM, Appellant, v. PROGRESSIVE SELECT INSURANCE COMPANY, Appellee.
    Case No. 2D14-5925
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017.

      Hala Sandridge of Buchanan Ingersoll & Rooney, P.C., Tampa, for Appellant.
    Valerie A. Dondero of Kubicki Draper, P.A., Miami, for Appellee.
   PER CURIAM.

Lee Memorial Health System (LMHS) appeals from a final summary judgment in favor of Progressive Select Insurance Company (Progressive), in which the trial court held that chapter 2000-439, section 18, Laws of Florida, improperly permitted the creation of a lien based on a private contract in violation of article III, section 11(a)(9), of the Florida Constitution. We affirm.

This case arises from an automobile accident in which Ruben Gallegos was struck by a car and was injured. LMHS provided hospital services related to Mr. Gallegos’ injuries during two periods: October 22, 2006, through October 29, 2006, and January 11, 2007, through January 23, 2007. On November 1, 2006, LMHS recorded a hospital claim of lien pertaining to Mr. Gallegos’ first stay in the amount of $55,167.49. On January 31, 2007, LMHS recorded a lien in the amount of $29,032.50 pertaining to his second stay, for a total of $84,199.99.

Mr. Gallegos, through counsel, filed a claim against the driver of the car that hit him and the car’s owner. The driver and .the owner were insured by two different insurance companies, Progressive and MGA Insurance Company- (MGA). On December 1, 2006, Progressive offered to pay the limits of its insured’s ■ bodily injury coverage “as full and final settlement of your client’s claim under a non-admission of liability based upon a. copy of the Lee Memorial lien you provided and absent a demand from your firm.” On January 9, 2007, Mr. Gallegos’ counsel informed LMHS of the availability of bodily injury coverage from the two insurers and asked the hospital to write off the balance of the amount due (at the time, $55,167.49). LMHS responded with a handwritten, signed no'te indicating that “LMH cannot write off Mr. Gallegos’ entire bill. Counter offer of $6,666.66 is made by Patty O’Brien (Mgr.).” The record does not reflect whether Mr; Gallegos’ counsel responded to this offer. Mr. Gallegos subsequently signed and delivered a release to Progressive, and on June 27, 20Q.7, Progressive tendered a check for $10,000 .to Mr. Gallegos’ counsel. Progressive also tendered an additional $4000 as payment for Mr. Gallegos’ property damage claim. According to our record, on September 10, 2009, Progressive tendered another $10,000 directly to LMHS from the Personal Injury Protection (PIP) benefits of its insured’s policy.

On . October 6, 2011, LMHS filed a lawsuit against Progressive and MGA, alleging that both insurers impaired the two liens. LMHS had recorded against Mr. Gallegos. The complaint alleged that the entire amount of the two liens, $84,199.99, remained unpaid. MGA was subsequently dismissed from the suit by joint stipulation. On December 13, 2012, Progressive filed a motion for summary judgment in which it argued,-in part, (1) that chapter 2000-439, section 18, “is unconstitutional as a special law pertaining to the creation, enforcement, extension and/or impairment of liens based on private contracts in violation of Article III, § 11(a)(9), of the Florida Constitution” and (2) that chapter 2000-439 “is an unconstitutional impairment of the insurance contract between Progressive and its insured ... under Article -I, § 10 of the Florida Constitution,” Following a hearing, the trial court granted Progressive’s motion for summary final judgment, holding that chapter 2000-439 was “unconstitutional as a special law which improperly creates a lien based on a private contract” and that therefore, the lien imposed by LMHS on the proceeds received by Mr. Gallegos from Progressive wasinvalid.

DISCUSSION

Chapter 2000-439, Laws of Florida (a “codified act,” see § 189.429, Fla. Stat (2006) (often referred to as a “special law” or “special act”)) created the Lee Memorial Health System as “a public health care system in Lee County.” The special law sets forth the duties and powers of the- Lee Memorial Health System, provides for its operation and maintenance, and provides for the execution' and enforcement of liens.- In this case, we are only concerned with the provisions pertaining to the execution and enforcement of liens, which are found in section 18 of the special law. That provision provides, in pertinent part:

Lee Memorial Health System shall be entitled to a lien for all reasonable charges for hospital, physician, and other health care services provided by the Lee Memorial Health System to ill or injured persons, upon the proceeds of all causes of action, suits, claims, counterclaims, and demands accruing to said persons or to their legal representatives, and upon all judgments, settlements, and settlement agreements rendered or entered into by virtue thereof, on account of injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgments, settlements, or settlement agreements, which injuries shall have necessitated such hospital, physician, and other services provided to such, ill or injured persons.
(3) No release or satisfaction of any cause of action, suit, claim, counterclaim, demand, judgment, settlement, or settlement agreement shall be valid or effectual as against the lien of Lee Memorial Health System unless the lienholder shall join therein or execute a release of its lien prior to the payment of any proceeds thereof, Any acceptance of a release or satisfaction of any cause of action, suit, claim, counterclaim, demand, judgment, settlement, or settlement agreement in the absence of a release or satisfaction of the lien of Lee Memorial Health System shall prima fa-cie constitute an impairment of such lien and the lienholder shall
be entitled to a cause of action for damages against, any and all persons, firms, or corporations giving or accepting such release or satisfaction, or paying or accepting the proceeds from the same. In such action, Lee Memorial Health System may recover the full amount of its charges for such hospital, physician, or other health care services; regardless of the amount of proceeds paid or received in impairment of its lien ....
(4) No person shall be entitled to recover, or receive damages based on the expense of hospital, physician, or other health care services provided by Lee Memorial Health System unless that person shall affirmatively show that Lee Memorial Health System’s charges have been paid. Provided, however, that [the plaintiff may include his or her hospital expenses as an item of damages if Lee Memorial is notified of the pendency of an action or claim] .... Any judgment rendered in favor of the plaintiff or counterclaimant shall provide that the amount proved by the lienholder to be due shall be deducted from the damages awarded and paid to the Lee Memorial Health System.

Ch. 2000-439, § 18, at 372-73, Laws of Fla. (emphasis added.)

A. Chapter 2000-439, Section 18, violates article II, section 11(a)(9), of the Florida Constitution.

As noted above, the trial court found section 18 of chapter 2000-439 to be unconstitutional because it is a special .law which allowed for the imposition of a lien based on a private contract. Specifically, the court determined that the special law ran afoul of article III, section 11(a)(9), of the Florida Constitution, which provides, “There shall be no special law or general law of local application pertaining to .., creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts.” Stated another way, a special law or general law of local application violates article III, section 11(a)(9), if it attempts to create, enforce, extend, or impair a lien, where that lien is based on a private contract.

The contract at issue in this case is the admissions contract that Mr. Gallegos signed upon being admitted to Lee Memorial Hospital that stated, in pertinent part:

PAYMENT OF BENEFITS ... •

1. I certify that the information given by me in applying for payment by the insurance company or Medicare or other governmental or private plan is correct.
2. [Release of medical information to secure payment.]
3. [Assignment of benefits from insurance or Medicare to doctors providing services.]
CONTRACT TO PAY: [Understanding of liability for all balances due at discharge.]
... If a lawsuit is filed to collect a bill, the undersigned agrees to pay reasonable attorney’s fees, costs and expenses incurred by Lee Memorial Health System in pursuing such action.

Subsequently, LMHS filed two liens (pertaining to two different periods of inpatient care) stating the following:

HOSPITAL CLAIM OF LIEN

Pursuant to Chapter 00-439, Laws of Florida, Special Acts, 2000, [name of director], being duly sworn, deposes and says:
1. That [ ] he/she is Director, Central Business Office of Lee Memorial Health System, 2776 Cleveland Ave, Fort Myers, Florida. '
2. That Lee Memorial Health System rendered hospital care, treatment, and maintenance to RUBEN GALLEGOS ... from the time of his/her admission ... to the time of his/her discharge ... the Amount Claimed such services and presently remaining unpaid is $55,167.49, for which the Lee Memorial Health System hereby claims a lien ⅛ virtue of its authority wider Chapter 00-Í39, Laws .of Florida, Special Acts, 2000.

(Third emphasis added.) Thus, the lien at issue was created pursuant to a special law and was “based on” the admissions contract between LMHS and Mr. Gallegos.

On appeal, LMHS argues, as it did below, that article II, section 11(a)(9), of the Florida Constitution only prohibits special laws that create, enforce, extend, or impair liens based on private contracts: But, it argues, chapter 2000-439 created a public hospital, which means that the contract between itself and Mr. Gallegos was a public contract. Therefore, according to LMHS, the trial court erred in declaring the special act unconstitutional because article III, section 11(a)(9), does not prohibit the imposition of a lien based on a public contract.

We cannot agree that the contract for the provision of medical care between Mr. Gallegos and the hospital is a public contract. The necessary premise of LMHS’s argument is that the nature of a contract derives entirely from the nature of one of the contracting parties, that is, because LMHS is a public hospital, all contracts to which it is a party are public contracts. LMHS fails to cite any authority for this proposition. The reason it is unable to do so is because there is none. There is no case, statute, U.S. Code section, Federal Acquisition Regulations chapter, or state administrative code section that defines “public contract” the way LMHS would like. In fact, the concept of a “public contract” seems to exist solely within the framework of government procurement and almost always has to do with procurement of materials, supplies, and services. See, e.g., Public Contracts, 41 U.S.C. §§ 3101-4712 (2011) (establishing federal procurement policy and contracting procedure); Miami-Dade Cty. Sch. Bd. v. J. Ruiz Sch. Bus Serv., Inc., 874 So.2d 59, 61 (Fla. 3d DCA 2004) (“Florida’s competitive bid statutes were enacted for the benefit and protection of the public ... to ensure that the public receives the lowest and best price for goods and services and that public contracts are not awarded in an arbitrary and capricious manner.”); Intercontinental Props., Inc. v. Dep’t of Health & Rehab. Servs., 606 So.2d 380, 385-86 (Fla. 3d DCA 1992) (discussing public policy considerations pertaining to public contracts); Satellite Television Eng’g, Inc. v. Dep’t of Gen. Servs., 522 So.2d 440 (Fla. 1st DCA 1988) (discussing the competitive bidding process for public contracts). In short, to the extent that the term “public contract” has been defined, that definition appears to be a contract between a government entity and a private party to perform a task (such as construction) or. for the provision of equipment, goods, or services that is financed by public funds.

While there is no Florida caselaw directly on point to the question presented here, in Mercury Insurance Co. of Florida v. Shands Teaching Hospital & Clinics, Inc., 21 So.3d 38 (Fla. 1st DCA 2009) (Shands I), the First District touched on the issue:

The Florida Hospital Association, writing as amicus curiae, argues that Shands’ hospital lien is not based on a private contract, but stems from a public pact with the hospital, which is required by federal law to provide emergency service. We find that the lien does not attach to the public’s assets, but rather to the assets of the patient whose contract with the hospital is a private one, and therefore reject the argument of amicus.

Id. at 39. The supreme court agreed with the First District’s analysis: “Here, the First District correctly held that the Lien Law ‘is a special law which creates a lien based on a private contract between Shands and its patient,’ and is thus unconstitutional under article III, section 11(a)(9), of the Florida Constitution.” Shands Teaching Hosp. & Clinics, Inc., v. Mercury Ins. Co. of Fla., 97 So.3d 204, 210 (Fla. 2012) (Shands II).

LMHS correctly points out that Shands was a private hospital, whereas LMHS is a public one. LMHS also points out that the phrase in Shands I, “whose contract with the hospital is a private one,” appears to be structurally independent and incidental to the language preceding it and therefore it does not perfectly refute its argument that the contract in this case is a public one. We agree that the quoted language leaves some room for interpretation.' However, we agree with the trial court that the more reasonable interpretation is that the nature of the contract flowed from the fact that the assets at issue were not public assets but were those of the patient. We can conceive of no other reason why our sister court would have gone out of its way to discuss the distinction between public, and private assets if that distinction was not relevant to its conclusion that the ad: missions contract was a private one.

We conclude that the admissions contract between a hospital, whether public or private, and its patient is a private contract. Accordingly, section 18 of chapter 2000-439 is unconstitutional because it allows for a lien based on a private contract in violation of article III, section 11(a)(9), of the Florida Constitution.

B. Chapter 2000-439, Section 18, violates article I, section 10 of the Florida Constitution..

In its motion for summary judgment, ' Progressive also argued that Chapter 2000-439 “is an unconstitutional impairment of the insurance contract between Progressive and its insured .,. under article I, § 10 of the Florida Constitution.” Although it did not cite article I, section 10, in its order, the trial court observed that

[a] close reading of Chapter 2000-439 indicates that LEE MEMORIAL HEALTH SYSTEM is entitled to a lien on the proceeds of any cause of action, suit, claim or demand and upon any judgment, settlement or settlement agreement entered into .by virtue thereof and on account of the injuries that give rise to such causes of action ...... In the instant case, Chapter 2000-439 purports . to attach > a- lien to the private causes of action and assets of the patient.

Article I, section 10, states, “No bill of attainder, ex post'facto law, or law impairing the obligation of contracts shall be passed.” But chapter 2000-439 allows LMHS to sue an insurer who-was not a party to • the admissions contract simply because the insurer did what insurers frequently do: enter into settlement contracts with their insureds-or with persons injured by the actions of their insureds. In doing so, the special law unconstitutionally impaired the insurer’s contractual rights in violation of article I, section 10, of the Florida Constitution. See Citrus Cty. Hosp. Bd. v. Citrus Mem’l Health Found., Inc., 150 So.3d 1102, 1108 (Fla. 2014) (holding that a special law, violated article 1, section 10, because it had the effect of “rewriting] ,, the parties’ contractual agreements” (approving Citrus Mem’l Health Found., Inc. v. Citrus Cty. Hosp. Bd., 108 So.3d 675 (Fla. 1st DCA 2013)); Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077, 1080 (Fla. 1978) (“It is axiomatic that subsequent legislation which diminishes the value of a contract is repugnant to our Constitution.”); Cohn v. Grand Condo. Ass’n, Inc., 26 So.3d 8, 10-11 (Fla. 3d DCA 2009) (concluding that a statute was unconstitutional because it impaired the obligation of contract as applied to the plaintiff), aff'd, 62 So.3d 1120, 1122 (Fla. 2011).

In addition, the special law permits LMHS to sue the insurer for “the full amount Of its charges' ...' regardless of the amount of proceeds paid or received,” ch. 2000-439, § 18(3), at 373, thereby exposing the insurer to potential losses far greater than that for which it contracted. It is well established that, absent bad faith (and where no dispute exists as to the available coverage or policy limits), an insurer’s liability is limited to the amount of its policy limits. See Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So.2d 239, 241-42 (Fla. 2d DCA 2008); State Farm Mut. Auto. Ins. Co. v. St. Godard, 936 So.2d 5, 9 (Fla. 4th DCA 2006) (“[I]n the absence of a' judicial finding of bad faith, in an action against an insurer for damages under a policy of insurance, a final judgment against the insurer cannot exceed the stated policy limits.”). Thus, the special law not only infringes upon the insurer’s right to contract but creates conditions exposing the insurer to liability far in excess of the limits of coverage for which it contracted.

CONCLUSION

In summary, section 18 of chapter 2000-439 authorizes the imposition of a lien based on a private contract in violation of article III, section 11(a)(9),. of the Florida Constitution. Further, it impairs the obligations of contracts entered into by an insurer and its insured or a claimant under the insured’s contract of insurance, in violation of article I,.section 10, of the Florida Constitution. Accordingly, we affirm the trial court’s declaration that section 18 of chapter 2000-439 is facially unconstitutional and affirm the final summary judgment in favor of Progressive Select Insurance Company.

Affirmed.

SILBERMAN and SLEET, JJ., and DAKAN, STEPHEN L, ASSOCIATE SENIOR JUDGE, Concur.

      . The record indicates that MGA tendered its insured’s bodily injury limit of $10,000 directly to LMHS as full and final settlement of LMHS’s-claim for damages.

      . Subsequently renumbered as section 189.019. See ch. 2014-22, § 49 at 608-09, Laws of Fla,


text:
    Pacino D. NEELY, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3999
    District Court of Appeal of Florida, First District.
    Opinion filed October 26, 2017
    Rehearing Denied December 5, 2017
    Pacino D. Neely, pro se, Petitioner.
    ■ Pamela-Jo Bondi, Attorney General, Tallahassee, for Respondent. •
   PER CURIAM.

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

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


text:
    William H. PAIGE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3968
    District Court of Appeal of Florida, First District.
    Opinion filed October 26, 2017
    Rehearing Denied December 5, 2017
    William H. Paige, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied.on the merits,

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


author: per Curiam.

text:
    Leonard C. GEORGE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-4260
    District Court of Appeal of Florida, First District.
    Opinion filed October 26, 2017.
    Rehearing Denied December 5, 2017
    Leonard C. George, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   per Curiam.

The petition for .writ of habeas corpus is denied on the merits.-

LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.


author: KELLY, Judge.

text:
    Amer Ali EJAK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D13-5332
    District Court of Appeal of Florida, Second District.
    Opinion filed October 27, 2017.
    Howard L. Dimmig, II, Public Defender, and Ivy R. Ginsberg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

After reviewing jurisdictional briefs seeking review of our decision in Ejak v. State, 201 So.3d 1228 (Fla. 2d DCA 2016), the supreme court quashed our decision and remanded the case to us for further proceedings consistent with Kelsey v. State, 206 So.3d 5 (Fla. 2016). Ejak v. State, 42 Fla. L. Weekly S751, S751, 2017 WL 2705748 (Fla. June 23, 2017). Kelsey, who was resentenced after Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), but before the legislature passed chapter 2014-220, Laws of Florida, complained that his new sentence was still unconstitutional under Graham because it did not provide a meaningful opportunity for early release. Kelsey, 206 So.3d at 10 (“Kelsey argues that his sentence does not currently provide the relief specified in our previous decisions and seeks the judicial review granted to other defendants who, like him, were sentenced to terms that will not provide them a meaningful opportunity for relief in their respective lifetimes.”). The supreme court agreed and reiterated that all “juveniles who are serving lengthy sentences are entitled to periodic judicial review to determine whether they can demonstrate maturation and rehabilitation.” Id.

Ejak was originally sentenced after Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), but before the legislature passed chapter 2014-220. After passage of the law he filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2), seeking to be resentenced under the new law. The trial court denied Ejak’s request for a new sentencing hearing, but it granted the motion in part and amended Ejak’s sentence to provide for subsequent judicial review pursuant to section 921.1402(2), Florida Statutes (2014). Ejak, 201 So.3d at 1230. Accordingly, Ejak’s sentence is consistent with Kelsey, and we again affirm the trial court’s order denying in part and granting in part Ejak’s rule 3.800(b)(2) motion to correct sentencing error.

Affirmed.

WALLACE and BLACK, JJ., Concur.


author: LUCAS, Judge. WALLACE, Judge,

text:
    England THAMES, DOC #W24143, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D16-2896
    District Court of Appeal of Florida, Second District.
    Opinion filed October 27, 2017.

      England Thames, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kierstén E. Jensen, Assistant Attorney General, Tampa, for Respondent.
   LUCAS, Judge.

England Thames has filed a petition under Florida Rule of Appellate Procedure 9.141(d), in which he asserts that his appointed appellate counsel was ineffective for failing to raise an argument concerning the jury instructions that were used, but never objected to, at his trial. Finding no fundamental error' under the facts of this case, we deny his petition for the reasons that follow.

I.

The State charged Mr. Thames with (1) sale of cannabis under section 893.13, Florida Statutes (2014); (2) actual or constructive possession of a conveyance used for the trafficking, sale,, or manufacture of controlled substances in violation of section §93.1351, and (3) solicitation to purchase cannabis under sections 777.04/ Florida Statutes (2014),'and 893:13. The jury acquitted Mr. Thames of the first and third charges but found him guilty of the second. The circuit court sentenced him to fifteen years in prison as a-habitual violent felony offender. He appealed his judgment and sentence, which this court affirmed without a written opinion. Thames v. State, No. 2D14-3629, 2015 WL 6777325 (Fla. 2d DCA Nov. 6, 2015) (table).

The relevant facts adduced at the trial were fairly succinct. On January 2, 2014, two undercover law enforcement officers approached three men who were standing by a Chevrolet Caprice. One of the officers asked the men if they had twenty' dollars’ worth of marijuana, and one of the men indicated that he did; that man then opened the driver’s door of the car, reached inside, and pulled out four small bags containing marijuana. After exchanging the marijuana and twenty dollars, the officer then asked the man he had initially contacted for his telephone number, but the man responded that he did not have a phone. He asked his two companions if they would provide the undercover officer with a contact number. Mr. Thames gave his cell phone number and gestured toward his pocket when the undercover officer called it. The entire transaction was filmed, and the jury viewed the recording. Throughout the transaction, Mr. Thames stood by or leaned on the Caprice, a car which, the officers later learned, Mr,. Thames in all probability owned.

■At the conclusion of the trial, the circuit court gave the. jury the following instruction for the charge of actual or constructive possession of a conveyance used for the trafficking, sale, or manufacture of controlled substances:

To prove the crime of actual or constructive possession of a structure used for trafficking, sale or manufacture of a controlled substance the State must prove the following two elements beyond a reasonable doubt[:]
first, the defendant was in actual or constructive possession of á place, structure or part thereof, trailer or conveyance;
and secondly, the defendant had knowledge that the place, structure or part thereof, trailer or conveyance would be used for the purpose of sale or distribution of a controlled substance.

Let us state at the outset, the first element in this instruction was erroneous. Section 893.1351(2) reads: “A person may not knowingly'■ be in actual or constructive possession of any place, structure, or part thereof, trailer, or other conveyance with the knowledge that the place, structure, or part thereof, trailer, or conveyance will be used for the purpose of trafficking in a controlled substance (Emphasis added.) By omitting the word “knowingly” from the fust element in the instruction, the 'jury was not informed that Mr. Thames had to knowingly be in possession of the Caprice in order to be found guilty of this offense. However, his defense counsel did not object to the substance of this instruction (or to the omission of any definition for constructive possession elsewhere within the instructions). Indeed, Mr, Thames’ attorney stipulated to the jury instructions that were ultimately used, both at the charge conference and at the time the instructions were read to the jury.

In his petition now before us, Mr. Thames claims this instruction was fundamentally erroneous because it lacked the first element of knowledge required by section 893.1351(2). He further asserts that his appellate counsel was ineffective for failing to raise that argument in his prior direct appeal. On the facts of this case, we must disagree.

n.

To establish a claim of ineffective assistance of appellate counsel, the Florida Supreme Court explained in Rutherford v. Moore, 774 So.2d 637, 643,(Fla. 2000), a petitioner must show

first, that appellate counsel’s performance was .deficient because “the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally , acceptable performance” and second, that the petitioner was prejudiced because appellate counsel’s deficiency “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Thompson [v. State, 759 So.2d 650, 660 (Fla. 2000)] (emphasis supplied) (quoting Groover v. Singletary, 656 So.2d 424, 425 (Fla. 1995)); see, e.g., Teffeteller [v. Dugger, 734 So.2d 1009, 1027 (Fla. 1999) ]. If a legal issue “would in all probability have been found to be without merit” had counsel raised the issue oh direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective. Williamson v. Dugger, 651 So.2d 84, 86 (Fla. 1994); see, e.g., Kokal v. Dugger, 718 So.2d 138, 142 (Fla. 1998); Groover, 656 So.2d at 425. This is generally true as to issues that would have been found to be procedurally barred had they-been raised on direct appeal. See, e.g., Groover, 656 So.2d at 425; Medina v. Dugger, 586 So.2d 317, 318 (Fla. 1991).

See also Evans v. State, 995 So.2d 933, 954 (Fla. 2008) (holding that because petitioner “cannot demonstrate that the trial court abused its discretion in denying the motion [for a mistrial], appellate counsel cannot be ineffective for failing to raise the meritless issue on direct appeal”). In deciding a petition for ineffective assistance of appellate counsel, an appellate court cannot fault appellate counsel “for failing to argue a point which, even if correct, would amount to no more than harmless error.” Duest v. Dugger, 555 So.2d 849, 853 (Fla. 1990). Where, as here, the claim of ineffective assistance revolves around appellate counsel’s failure to argue an issue that had never been objected to at trial, the petitioner must demonstrate a fundamental error—that is,' one that “reaches down into the validity of the -trial itself to the extent that a verdict of guilty ... could not have been obtained without the assistance of the alleged error.” Scott v. State, 66 So.3d 923, 929 (Fla. 2011) (quoting Poole v. State, 997 So.2d 382, 390 (Fla. 2008)); see also State v. Delva, 575 So.2d 643, 644 (Fla. 1991) (holding jury instructions “are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred”). With that in mind, then, we turn to the substantive' point of Mr, Thames’ argument.

The jury instruction utilized in Mr. Thames’ trial failed to indicate that Mr. Thames had to “knowingly” be in actual or constructive possession of the conveyance to be found guilty of violating section 893.1351(2). Without question, that omission rendered the instruction erroneous because the legislature defined this crime to require both knowledge of possession of the conveyance and knowledge that the conveyance will be used for trafficking, sale, or manufacture of a controlled substance. Cf. Nash v. State, 951 So.2d 1003, 1004-05 (Fla. 4th DCA 2007) (holding that the trial court fundamentally, .erred by leaving the word “knowingly” out of the standard jury instruction for trafficking in cocaine because the legislature made knowledge of possession an element of the crime of trafficking and that element was “hotly disputed” during the trial). Mr. Thames correctly asserts in his petition that the instruction provided to his jury lacked a requisite knowledge element of his offense.

It is difficult for us to fathom how that could have mattered, though. Mr. Thames does not contend that the jury’s instructions as to what constituted his possession of this particular conveyance for purposes of section 893.1351(2) were in any way inaccurate. On that point, at least, there is no argument about whether the jury was improperly instructed concerning Mr. Thames’ possession of the Chevrolet Caprice. His claim of fundamental error, then, rests solely on the notion that he was never found to be “knowingly” in possession of it.

But Mr. Thames’ knowledge of his possession—set apart, if it can be, from his status of being in possession—of this car was a point that was never in question during his trial. Indeed, how could it have been under thése facts? Cf. State v. Burns, 457 S.W.2d 721, 724 (Mo. 1970) (“Possession without, knowledge of such possession is not possession in the legal sense of that word, State v. Nicolosi, 228 La. 65, 81 So.2d 771 [ (1955) ].”). Under any plausible view of the facts before us, the jury could not have found Mr. Thames to have been in possession of the car he was leaning against and engaging in a drug transaction around without him correspondingly knowing that he was in possession of it. Tellingly, in his petition before us, he makes no claim that that issue was contested, or how, conceptually, it could have been contested—only that the instruction was erroneous (which, again, it unquestionably was). Since the issue' of Mr. Thames’ knowledge about his possession of the car was never in dispute, the failure to include the word “knowingly” for that part of the instruction, although an error, did not amount to fundamental error in this case. See State v. Montgomery, 39 So.3d 252, 258 (Fla. 2010) (“Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” (quoting Delva, 575 So.2d at 645)); Reed v. State, 837 So.2d 366, 369 (Fla. 2002) (“[Wjhether the evidence of guilt is overwhelming or whether the prosecutor has or has not made an inaccurate instruction a feature of the prosecution’s argument are not germane to whether the error is fundamental,” rather, “[i]t is fundamental error if the inaccurately defined ... element is disputed, and the inaccurate definition ‘is pertinent or material to what the jury must consider in order to convict.’ ” (citation omitted) (quoting Stewart v. State, 420 So.2d 862, 863 (Fla. 1982))).

Our colleague’s dissent, though thoughtful and thorough, elides this issue. Mr. Thames’ petition suffers the same shortcoming. It is not for this court to speculate how Mr. Thames might have disputed whether he could have been in possession of this car without “knowingly” being in possession of this car—our task is to determine from the record whether this discrete issue was ever disputed at any point in the proceedings below. It was not.

Consistent with Montgomery, Reed, and Delva, then, we do not consider this erroneous omission to be a fundamental error in Mr. Thames’ case. There was no dispute over the issue of Mr. Thames’ knowledge of whether he was in possession of his Chevrolet Caprice. The error as to that part of the jury instruction did not reach “down into the validity of the trial itself,” Poole, 997 So.2d at 390, and so we conclude it was not fundamental in this case.

Petition denied.

CRENSHAW, J., Concurs.

WALLACE, J., Dissents with opinion.

WALLACE, Judge,

Dissenting.

I respectfully dissent. The majority acknowledges that the knowing nature of Mr. Thames’ actual or constructive possession of the car at issue is an element of the offense as defined by the legislature and that the knowing nature of the alleged possession was essential to what the jury was required to determine in order to find Mr. Thames guilty of the crime defined in section 893.1351(2). But the majority equates this element with knowledge that the car was present and concludes that “Mr. Thames’ knowledge of his -possession ... of this car was a point that was never in question during his trial.” I disagree with both this interpretation of the statute and with the majority’s'conclusion this element. was not disputed at trial. I would hold that the omission of this element from the jury instruction was fundamental error and that the failure of,Mr. Thames’ appellate counsel - to raise this error in Mr. Thames’ direct appeal was deficient performance that undermines confidence in the outcome.

I. THE INSTRUCTION AS FUNDAMENTAL ERROR

Section 893.1351(2) contains two separate elements regarding knowledge that the State must prove to obtain a conviction. First, the State must establish that the accused’s possession of the place, structure, trailer, or conveyance was undertaken “knowingly.” Id. Second, the State must also prove that such possession was undertaken “with the knowledge” that the place, structure, trailer, ór conveyance will be used for a prohibited purpose as described in the statute. Id.; see Notice, Amendments to Jury Instructions, Fla. Bar News, Jan. 15, 2017, at 21 (proposing a new jury instruction 25.13(g) for the offense set forth in section 893.1351(2)). I will refer to the first element as the “conscious purpose” requirement and the second element as the “guilty knowledge” requirement. ...

These two elements are separate and distinct. A similarly worded requirement that the accused’s possession be undertaken “knowingly” appears in section 893.135, the trafficking statute. In construing the meaning of the term “knowingly” as used in the trafficking statute, the Fourth District explained that the legislature’s use of the term “knowingly”, cannot mean the same thing as knowledge of the contraband’s presence. Gartrell v. State, 609 So.2d 112, 114 (Fla. 4th DCA 1992), quashed on other grounds, 626 So.2d 1364 (Fla. 1993). Instead, the legislature’s use of the term “knowingly,” when used in conjunction with possession, must be interpreted so as to give it a separate meaning. See id. With regard to the trafficking statute, the Fourth District said that the term “knowingly” “has been interpreted by our supreme court to mean that the defendant must know the nature of the particular substance he possesses.” Id. (citing State v. Dominguez, 509 So.2d 917 (Fla. 1987)).

Section 893.1351(2), Florida Statutes (2014), the statutory provision under review here, uses' the term “knowingly” with reference to the possession of places, structures, trailers, and conveyances. Unlike in the trafficking statute, these things are not contraband. Therefore, part of the court’s proper task here is to determine what the term “knowingly” means with regard to the possession of these items.

I take the word “knowingly” as used in section 893.1351(2) to mean that the accused’s possession of the place, structure, trailer, or conveyance must have a distinct mental element, i.e., “a conscious and substantial possession' by the accused, as distinguished from a .mere involuntary or superficial possession,” Reynolds v. State, 92 Fla. 1038, 111 So. 286, 286 (1926). Thus, for the,State to prove that the accused undertook to possess a place, structure, trailer, or conveyance “knowingly,” ’ it must show that the accused acted in accordance with a conscious purpose to achieve the substantive possession of the item in question. Stated differently, the State must show that the accused had the intent to exercise a right of control over a place, structure, trailer, or conveyance with the conscious awareness that he or she is doing so. See generally Richard Sanders, The Knowledge Element in Drug Cases: Some Final Thoughts on Shelton and Adkins, 88 Fla. B.J. 40,43 n.17 (July/Aug. 2014) (reviewing case- law and discussing the mental elements involved in the proof of offenses involving possession of controlled substances).

The majority equates knowing possession with knowledge that the car was present and concludes that “the jury could not have found Mr, Thames to have been in possession of the car he was leaning against and engaging in a drug transaction around without him correspondingly knowing that he was in possession of it.” From this assertion about the .jury’s verdict, the majority leaps to the unwarranted.conclusion that “the.issue of Mr. Thames’ knowledge about his possession of the car was never in dispute.” But this, assertion, even if the statute is interpreted to equate knowing possession with knowledge of the car’s presence, is flawed because the majority focuses on the jury’s verdict instead of on the question of what was actually disputed during the trial. The jury’s verdict and the disputed issues of fact at the trial—both of which are demonstrable from the record'—are obviously two different things. Here, the majority inexplicably seizes on the jury’s verdict as a substitute for analyzing the issue about which the parties contended at trial. But the question of whether Mr. Thames’ alleged possession of the car was knowing, or with a conscious purpose, was a disputed issue of fact at the trial of this case. Undeniably, the jury’s verdict did not change that fact.

Two examples will suffice to demonstrate how the first knowledge element in section 893.1351(2)—the conscious purpose requirement—operates in practice. A real estate broker tasked to sell a home or commercial building may have a set of keys and access to the property. But absent special circumstances, the real estate broker generally does not possess the property; he or she has no purpose to do so. See Polio v. First Niagra Bank, Nat’l Ass’n, 2014 WL 5099211 *6 (Conn. Sup. Ct. 2014); Knight v. Realty USA.com, Inc., 96 A.D.3d 1443, 947 N.Y.S.2d 693, 694 (2012); Christopher v. McGuire, 179 Or. 116, 169 P.2d 879, 881 (1946). A house guest or a casual visitor to a residence—even one left alone in the home—has a limited right to access and to occupy the property, but he or she does not “knowingly” possess the premises. Cf. J.S.M. v. State, 944 So.2d 1143, 1144 (Fla. 2d DCA 2006) (holding that the State had failed to prove that the defendant had dominion and control over contraband because there was no evidence that he was an occupant of a hotel room rather than a guest at a party); Harris v. State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007) (holding that a mere visitor to a residence did not have dominion and control over contraband found in the residence where the visitor “was neither an owner nor an occupant of the premises”).

These examples demonstrate that the requirement that the accused’s possession of the place, structure, trailer, or convey-anee be undertaken “knowingly”—i.e., with a conscious purpose—is entirely separate from the requirement that such possession also be accompanied by guilty knowledge. The legislature defined the offense in section 893.1351(2) to require that the State establish both of these elements of knowledge. Moreover, the Florida Supreme Court teaches that we cannot read the requirement that an offense be committed “knowingly” out of a criminal statute. Polite v. State, 973 So.2d 1107, 1112-13 (Fla. 2007). If we do otherwise, “we would be disregarding the maxim of statutory construction that courts are required to give significance and effect to every word or phrase in a statute.” Id. at 1113. Accordingly, the requirement that Mr. Thames’ possession of the car be undertaken “knowingly,” or with a conscious , purpose, was pertinent and material to what the jury needed to consider to convict.

II. DEFICIENT PERFORMANCE

To establish a claim of ineffective assistance of appellate counsel, the petitioner must show that counsel performed defi-ciently and that “the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.” Downs v. Moore, 801 So.2d 906, 909-10 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla. 1985)). “This court applies the law in effect at the time of the appeal to determine whether counsel’s performance was deficient” and “current law to determine whether the petitioner is entitled to relief.” Horne v. State, 128 So.3d 953, 956 (Fla. 2d DCA 2013) (citing Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009)).

At the time of Mr. Thames’ direct appeal, this court had held that fundamental error occurred when jury instructions Omitted -an element of knowledge of a charged offense and the defendant disputed the omitted element at trial. See Barrientos v. State, 1 So.3d 1209, 1217-18 (Fla. 2d DCA 2009) (holding that the trial court committed fundamental error by omitting the word “knowingly” from the element of possession in the jury instruction for trafficking. in cocaine); Wolfork v. State, 992 So.2d 907, 910 (Fla. 2d DCA 2008) (holding that the omission of the words “intentionally or knowingly” from the second element of aggravated battery on a law enforcement officer constituted fundamental error); see also Nash, 951 So.2d at 1004-05. Accordingly, this issue was one that should have, been raised under the “prevailing professional norms” of appellate practice. See Morris v. State, 931 So.2d 821, 828 (Fla. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The error in the jury instruction remains' fundamental error under current law. See, e.g., Ramroop v. State, 214 So.3d 657, 665-66 (Fla. 2017) (holding that in a trial for attempted second-degree murder of a law enforcement officer, the jury instruction that omitted the element of knowledge that the victim was a law enforcement officer when the defendant committed the offense was fundamental error and therefore “per se reversible”).

III. CONCLUSION

I would grant the petition, vacate . Mr. Thames’ judgment and sentence, ■ and remand for a new trial.

      . Mr. Thames had a car of the same make, model, and year as the Chevrolet Caprice registered in his name. Mr. Thames did not testify at his trial, but his expired registration of what appeared to be the same vehicle was admitted into evidence at the trial.

      . The instructions did not define actual or constructive possession. Although the information. charged Mr, Thames with the crime defined in section 893.1351(2), and The jrny instruction , lists elements of that offense, the written jury instructions refér to section 893.13(7)(a)(5), which prohibits a person from keeping or maintaining “any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, pr other structure or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.” ...

      . The case of Nash, 951 So.2d 1003, where the Fourth District found fundamental error when the jury was not instructed that a defendant had to knowingly be in possession of cocaine to be convicted of trafficking, is readily distinguishable. One can easily imagine a circumstance where an individual might unknowingly be in possession of a substance, such as cocaine, as indeed, in that case, the defendant's knowledge of the drug’s presence "was hotly disputed.” Id. at 1005. Even then, the Fourth District took care to limit its holding in Nash to the circumstances of that case. Id. at 1004.
      That is not to say that our analysis hinges solely on the fact that the subject of possession in this case happened to concern a car. We could imagine a scenario where the question of whether a defendant was knowingly in possession of a conveyance such as a car would be in dispute. For example, if Mr, Thames owned a large car lot or a junkyard which contained a vehicle that the State charged was "used for the purpose of sale or distribution of a controlled substance,” the issue might very well be contested. Here, however, it is simply impossible to imagine any circumstance under which it could be said that Mr. Thames inadvertently or unknowingly possessed the Chevrolet Caprice he was leaning against when he conducted this drug transaction.

      . Our colleague recognizes that section 893.1351(2)’s inclusion of the word "knowingly” imparts “a distinct mental element” into this criminal offense. Yet, in gleaning "a disputed issue of fact” for purposes of fundamental error, the dissent appears to collapse the distinct (but undisputed) mental element of Mr. Thames’ knowledge into the separate (and disputed) element about Mr. Thames’ actual or constructive possession of the vehicle. At trial, Mr. Thames’ counsel only argued that he was not in actual or constructive possession of this vehicle. A jury found otherwise, and Mr. Thames does not challenge that finding or the instruction (defining actual or constructive possession) that precipitated it in his petition. As to whether Mr. Thames was knowingly in actual or constructive possession of this car—an issue we can all agree would be separate and distinct from his possession— that dispute is nowhere to be found in this record.

      . In so holding, we are cognizant of the observation made by one of our former colleagues: "District courts have with varying results continued to apply Delva's distinction between the failure to instruct on an element that is disputed—which constitutes fundamental error—and the failure to instruct on an element that is not disputed—which does not constitute fundamental error.” Garcia v. State, 854 So.2d 758, 769 (Fla. 2d DCA 2003), quashed by 901 So.2d 788 (Fla. 2005). So long as Delva remains the law in Florida, we must continue applying the distinction that it formulated.

      , The legislature eliminated the' element that the defendant know of the illicit nature of the contraband effective May 13, 2002. § 893.101, Fla. Stat. (2002); ch. 2002-258,- § 1, at 1848,’Laws of Fla.; Knight v. State, 186 So.3d 1005, 1008 n.2 (Fla. 2016).

      . Mr. Thames’ direct appeal record shows that he did not concede the element’of knowing possession. See Licata v. State, 81 Fla. 649, 88 So. 621, 622 (1921) ("The plea of not guilty puts in issue every material element of the crime charged in the information .... ”). Rather, as the majority acknowledges, the direct appeal record shows that Mr, Thames vigorously disputed -that he actually or constructively possessed the car. It follows that he disputed that he knowingly possessed the car. See, e.g., Wolfork v. State, 992 So.2d 907, 910 (Fla. 2d DCA 2008) ("Wolfork’s defense at trial was that he did not cause the injury to the victim. Thus Wolfork implicitly argued that he did not intentionally or knowingly cause said injury.”). His counsel argued in dosing:
      You have heard no information actually, okay, about who was possessing, who was—that Mr. Thames was possessing or Mr. Thames was constructively possessing the vehicle.
      All he’s doing again is standing next to the vehicle, keep that in mind. The person who is exercising dominion, control, okay, over the vehicle is this other individual. He is the one in the video who is opening the door, going inside the vehicle, coming out, okay. Keep that in mind, there is nothing in that video showing Mr. Thames exercising any dominion, any control, anything that would indicate that he’s in actual possession of the vehicle. You know, an indication that some expired registration indicating that at some point this vehicle was registered to Mr. Thames again assuming that that registration is for that vehicle because in that video there’s no—you’re not shown a tag. The vehicle is turned around. But assuming that that is the registration for that vehicle, that in no way is evidence of actual or constructive possession. ■
      The question is at the moment—at that time on January 2 during that video, the incident described in the video or shown or depicted in the video, is Mr. Thames actually or constructively possessing the car. And again, merely standing by is not enough to show that he’s in possession of the vehicle. It’s not. And the one exercising control, the one exercising control, the one exercising dominion over the vehicle is the other guy. And again that has to be shown in order for you to determine that Mr, Thames was in actual or constructive possession of the vehicle.
      Keep in mind that there’s been no evidence whatsoever indicating that Mr. Thames drove the vehicle, that he had keys on him for .the vehicle, that, you know, any of the other, you know, indicators of control or possession of an item because again control, possession are distinguishable from an ownership interest in something assuming he had one. Two different things, two different concepts. And what the instruction talks about is control, possession, actual constructive possession, no mention of ownership interest whatsoever.

      . For cases involving similar examples, see Sanders, supra.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    WELLS FARGO DELAWARE TRUST COMPANY, N.A., as trustee FOR VERICREST OPPORTUNITY LOAN TRUST 201-NPL1, Appellant, v. Alexey PETROV; Fifth Third Bank; AmSouth Bank; Townhomes at Turtle Creek Association, Inc.; American Express Centurion Bank; Rhonda Petrov; and Florida Limited Investment Properties, Inc., Appellees.
    Case No. 2D16-1536
    District Court of Appeal of Florida, Second District.
    October 31, 2017

      David W. Rodstein- of Rodstein Law Group, P.A., Ft. Lauderdale; and Norman Rodney Holmes and Silver Deutch of Millennium Partners, Aventura, for Appellant.
    Uta S. Grove of Grove & Cintron, P.A., Largo; Starlett M. Massey of McCumber Daniels, Tampa; and Karen E. Mailer of Powell, Carney, Mailer, P.A., St. Peters-burg, for Appellee Florida Limited Investment Properties, Inc.
    No appearance for remaining Appellees.
   ROTHSTEIN-YOUAKIM, Judge.

Wells Fargo Delaware -Trust Company, N.A., as Trustee for Vericrest Opportunity Loan Trust 201-NPL1, appeals from an order involuntarily dismissing its foreclosure complaint after a bench trial. Because the trial court erroneously concluded that Wells Fargo’s servicer, Caliber Home Loans, f/k/a Vericrest Financial, and -its employee, Scott Logue, had prosecuted this action on Wells Fargo’s behalf without proving that they had been authorized to do so,- we reverse and rémand for reinstatement of Wells Fargo’s second amended complaint.

THE PROCEEDINGS BELOW

On June 2, 2004, Alexey Petrov executed the mortgage and note at issue in this case. On December 1,2010, Petrov stopped making mortgage payments.

In February 2012, Wells Fargo filed a foreclosure complaint. Petrov failed to defend, and -the clerk entered a default on May 22, 2012. That same day. Wells Fargo moved for a final summary judgment of foreclosure and filed with the trial court the original mortgage and note. Subsequently, however, Wells Fargo discovered that a certificate of title for the property had been issued to Florida Limited Investment Properties, Inc. (FLIP), before Wells Fargo hád initiated the foreclosure action, so Wells Fargo moved to amend the complaint to include FLIP as a defendant. The trial court granted the motion, and Wells Fargo filed an amended complaint and served FLIP. FLIP filed a motion to dismiss the amended complaint, which the court granted for reasons not pertinent to this appeal.

In April 2014, Wells Fargo filed its second amended complaint, which FLIP unsuccessfully moved to dismiss. At the December 2015 trial, Wells Fargo, through Logue, entered into evidence the original note with allonges, the original mortgage, assignments of the mortgage, the notice of default, the loan payment history, and other exhibits. Logue testified as to the servi-cer’s boarding process and its role in maintaining the mortgagee’s loan records; In short, this was—or-should have been—a run-of-the-mill foreclosure proceeding at which the plaintiff proved standing, its fulfillment of conditions precedent, the facts supporting the default, and the amounts due. ' ■ " • ' ‘

The groundwork for the error requiring reversal, however, was laid when FLIP objected to the admission of the Limited Power of Attorney (LPOA) between Wells Fargo and Vericrest/Caliber. FLIP argued that the LPOA . only authorized .Veri-crest/Caliber to “creat[e] ... documents” and did not “provide[ ] for. ... testimony or the filing of foreclosures.” The trial court overruled the evidentiary objection but directly questioned Logue on the issue, repeatedly asking whether Logue could point out in the document itself what provision gave Vericrest/Caliber “the authority to prosecute the -foreclosure action.”

Post-trial, the trial' court directed the parties to file written closing arguments. In FLIP’S “Motion for Involuntary Dismissal, Closing Argument, and Memorandum of Law,” FLIP argued, in pertinent part, that the LPOA did not give Vericrest “the authority to hold the Note, or to-enforce the Note or to foreclose the Mortgage,” to verify the complaint on behalf of Wells Fargo, to initiate suit on behalf of Wells Fargo, or to give testimony on behalf of Wells Fargo. Moreover, FLIP argued, Caliber lacked any authority at all under the LPOA because “the power of attorney was only in favor of Vericrest, as Caliber Home Loans didn’t exi[s]t.”

The . trial court, granted FLIP’S motion for involuntary dismissal, stating:

A; Plaintiff, WELLS FARGO DELAWARE TRUST COMPANY N.A-, AS TRUSTEE FOR VERICREST OPPORTUNITY LOAN TRUST 201-NPL1 [sic], hereinafter referred to as “WELLS FARGO”, presented the testimony of a single .witness, SCOTT LO-GUÉ, hereinafter referred to as “LO-GUE.”
B. LOGUE testified that he was not an employee of WELLS FARGO but was an -employee of CALIBER HOME LOANS, INC. LOGUE further testified that he was authorized, as an employee of CALIBER HOME LOANS, INC., to testify on behalf of WELLS FARGO pursuant to a Limited Power of Attorney, a photocopy of which' was admitted into evidence as Plaintiffs Exhibit 2.
C. The Limited Power of Attorney executed by WELLS FARGO did not grant to its Attorney-in-Fact, CALIBER HOME LOANS, INC., the authority to prosecute the litigation. on behalf of WELLS FARGO. LOGUE, who is not an employee of WELLS • FARGO, did not have the authority to prosecute the case on behalf of WELLS FARGO.

ANALYSIS

Upon our de novo review, see Green Tree Servicing LLC v. Sanker, 204 So.3d 496, 497 (Fla. 4th DCA 2016), we hold that the trial court erred in granting FLIP’S motion for involuntary dismissal. The basis for the court’s error was its misapprehension—fostered by FLIP—that Caliber and Logue were “prosecuting the case on Wells Fargo’s behalf.” Caliber, as Wells Fargo’s servicing agent, verified Wells Fargo’s foreclosure complaint, and Logue, as Caliber’s employee, testified as a witness for Wells Fargo at the foreclosure trial. Neither of these actions constituted “prosecuting the case on Wells Fargo’s behalf’—Wells Fargo is and always has been the plaintiff in this case. Servicing agents routinely verify complaints filed by noteholder-plaintiffs. See Deutsche Bank Nat’l Tr. Co. v. Plageman, 133 So.3d 1199, 1200-01 (Fla. 2d DCA 2014) (explaining difference between servicer that files foreclosure complaint in its own name on behalf of owner and holder of note and servi-cer that merely verifies’ complaint filed in name of owner and holder of note); Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 564 (Fla. 4th DCA 2014) (finding error with trial court’s* determination that appellant’s servicing agent lacked standing to bring foreclosure action on appellant’s behalf when record “clearly reflected]” that appellant filed foreclosure complaint on its own behalf and that servicing agent merely verified complaint); see also US Bank Nat’l Ass’n v. Marion, 122 So.3d 398, 399 (Fla. 2d DCA 2013) (reversing dismissal on basis that servi-cer’s employee verified bank’s foreclosure complaint); Deutsche Bank Nat’l Tr. Co. v. Prevratil, 120 So.3d 573, 576 (Fla. 2d DCA 2013) (holding that Florida Rule of Civil Procedure 1.110 does not require that verification be based on personal knowledge). Moreover, noteholder-plaintiffs routinely call servicing agents to testify regarding business records that servicing agents maintain in connection with the mortgage and note to establish the note-holder-plaintiffs’ right to pursue foreclosure. See, e.g., Shaffer v. Deutsche Bank Nat’l Tr., 42 Fla. L. Weekly D889, D889, — So.3d -, -, 2017 WL 1400592 (Fla. 2d DCA Apr. 19, 2017); Rosa v. Deutsche Bank Nat’l Tr. Co., 191 So.3d 987, 988 (Fla. 2d DCA 2016); Michel v. Bank of N.Y. Mellon, 191 So.3d 981, 982 (Fla. 2d DCA 2016); Bolous v. U.S. Bank Nat’l Ass’n, 210 So.3d 691, 692 (Fla. 4th DCA 2016); Deutsche Bank Nat’l Tr. Co. v. Marciano, 190 So.3d 166, 167 (Fla. 5th DCA 2016); Seidler v. Wells Fargo Bank, N.A., 179 So.3d 416, 420 (Fla. 1st DCA 2015); Guerrero v. Chase Home Fin., LLC, 83 So.3d 970, 972 (Fla. 3d DCA 2012). Consequently, we conclude that Caliber’s and Logue’s asserted need for “authority to prosecute” this action was nothing more than a red herring with which FLIP somehow managed to mislead the trial court.

CONCLUSION

Because the trial court misapprehended Caliber’s and Logue’s need for authorization to prosecute this foreclosure action, we reverse the judgment and remand for reinstatement, of Wells Fargo’s second amended complaint and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

WALLACEand MORRIS, JJ., Concur.

      . Although styled as an "Order of Dismissal,” the order includes traditional words of finality and refers to itself as a "judgment.” Accordingly, we construe it as an entry of judgment that- is final and appealable. See HSBC Bank USA, Nat'l Ass'n v. Buset, 216 So.3d 701, 702-03 (Fla. 3d DCA 2017).

      . We reject without comment Florida Limited Investment Properties, Inc.’s repeated suggestion that Vericrest and Caliber are separate and distinct entities.

      . We question whether FLIP had standing to raise any of these arguments, Although FLIP acquired its interest in the property before the filing of the lis pendens, there is no evidence that FLIP ever attempted to assume the mortgage or to cure the existing default when it purchased the property. Therefore, it does "not stand in the shoes of the mortgagors and cannot participate in the bank’s foreclosure as though [it] were a party to the mortgage.” Pealer v. Wilmington Tr. Nat'l Ass’n, 212 So.3d 1137, 1137-38 (Fla. 2d DCA 2017) (Sleet, J., specially concurring). Wells Fargo, however, did not challenge FLIP’S standing to participate in the foreclosure proceeding below and, in any event, does not raise this issue on appeal.


text:
    Steven Richard SAYRE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-249
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 31, 2017
    Rehearing Denied December 6, 2017

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Capron v. State, 948 So.2d 954, 958 (Fla. 5th DCA 2007) (holding that “a sufficient temporal break” allowed offender “to reflect and form a new criminal intent”).

ORFINGER, LAMBERT and EISNAUGLE, JJ., concur.


text:
    Alejandro A. RIOCABO, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 3D16-2860
    District Court of Appeal of Florida, Third District.
    Opinion filed November 1, 2017.
    King, Nieves & Zacks, PLLC, and Enrique Nieves, III, (West Palm Beach), for appellant.
    Shapiro, Fishman & Gaché, LLP, and Kimberly Hopkins (Tampa) and Ileen J. Cantor (Boca Raton), for appellee.
    Before SUAREZ, LOGUE and SCALES, JJ.
   On Confession of Error

PER CURIAM.

Alejandro A. Riocabo appeals from a final summary judgment of foreclosure of his residence in favor of Federal National Mortgage Association (“Fannie Mae”). Riocabo has raised three issues on appeal. Fannie Mae has responded by filing a confession of error, conceding that there are disputed issues of material fact regarding the standing of the original plaintiff, CitiMortgage, Inc., to bring suit. Prompted by Fannie Mae’s commendable confession of error, whose basis we confirm by an independent review of the record, we reverse the summary judgment of foreclosure entered below, and remand for further proceedings.

Reversed and remanded.


text:
    Gary Leroy LUCAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-274
    District Court of Appeal of Florida, Second District.
    Opinion filed November 1, 2017.
    Gary Lucas, pro se.
   PER CURIAM.

Gary Lucas appeals the dismissal of a filing he made in the circuit court that was styled “Lawsuit for False Imprisonment.” The circuit court treated this filing as a motion for postconvictíon relief in his criminal case, found that Mr. Lucas’s proper remedy was to pursue appeals of a previously denied motion under Florida Rule of Criminal Procedure 3.800(a) and a previously denied petition for a writ of habeas corpus, and dismissed it.' It is, however, plain that Mr. Lucas intended this filing to be a civil complaint: he titled it a “lawsuit,” named defendants; chose a cause of action, demanded money damage's, and used a civil cover sheet. Although we have significant skepticism about the merits of Mr. Lucas’s civil suit, it was error to dismiss it on procedural grounds solely applicable to a postconviction motion in a criminal case. See Malave v. Malave, 178 So.3d 51, 55 (Fla. 5th DCA 2015) (“[T]he filing of an action in the wrong division should be remedied by reassignment to the correct division as opposed to a dismissal of the action.”). We therefore reverse that decision and remand with instructions to vacate the order of dismissal and transfer or otherwise ensure assignment of the case to the appropriate civil division of-the circuit court.

Reversed and remanded with instructions.

CRENSHAW, BLACK, and SALARIO,' JJ., Concur.


text:
    Daniel GOINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2146
    District Court of Appeal of Florida, Second District.
    Opinion filed November 1, 2017
   PER CURIAM.

Affirmed. See Ch. 2006-3, § 1, at 174, Laws of Fla.; Ch. 77-266, § 1, at 1248, Laws of Fla.; McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Romano v. State, 718 So.2d 283 (Fla. 4th DCA 1998).

SILBERMAN, MORRIS, and BADALAMÉNTI, JJ., Concur.