author: Kuntz, J.

text:
    WAL-MART STORES, INC., a Foreign Corporation, Appellant, v. Derrick THORNTON, Appellee.
    No. 4D16-4173
    District Court of Appeal of Florida, Fourth District.
    [March 7, 2018]
    Thomas A. Valdez and Karen M. Shimonsky of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for appellant.
    Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort Lauderdale, and Robert C. Rogers, Jr., of Lawrence J. Bohannon P.A., Fort Lauderdale, for appellee.
   Kuntz, J.

Wal-Mart Stores, Inc. appeals the trial court's final judgment after a jury verdict in favor of the Plaintiff for injuries sustained as a result of a slip-and-fall accident. We affirm without comment on all issues raised except Wal-Mart's argument that the court erred in denying its motion for remittitur.

In the motion for remittitur, Wal-Mart argued the damages awarded were against the manifest weight of the evidence. After a careful review of the testimony and evidence, we conclude that, while there was some evidence to support most portions of the award, the trial court should have granted remittitur as to the $150,000 for future medical expenses. The jury awarded the Plaintiff $150,000 even though the Plaintiff's doctor testified that future medical costs for "a potential future knee replacement surgery" would not exceed $75,000.

As the amount of damages awarded for future medical expenses bears no reasonable relationship to the damages proved, we reverse the court's judgment and remand for reconsideration of the motion for remittitur in accordance with section 768.74, Florida Statutes. The reconsideration must be limited to the portion of the judgment relating only to future medical expenses. The judgment is otherwise affirmed.

Affirmed in part, reversed in part.

Gross and Forst, JJ., concur.


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    Yehuda BALVA, Appellant, v. ONTARIO WEALTH MANAGEMENT CORPORATION, a foreign corporation, Jeffrey Friedman, Randi Friedman, Jason Klinghoffer, United States of America, Department of Treasury, and Florida Department of Revenue, Appellees.
    No. 4D17-1126
    District Court of Appeal of Florida, Fourth District.
    [March 14, 2018]
    Scott C. Gherman of Scott C. Gherman, P.A., Boca Raton, for appellant.
    Dariel Abrahamy of Greenspoon Marder, P.A., Boca Raton, for appellee Ontario Wealth Management Corporation, a foreign corporation.
   Damoorgian, J.

Yehuda Balva appeals the trial court's entry of amended final judgment of foreclosure in favor of Ontario Wealth Management Corporation ("the Bank") following a bench trial. We reverse.

In 2016, the Bank filed a mortgage foreclosure complaint against Appellant. The matter ultimately proceeded to a bench trial on the issue of damages only. At the conclusion of the trial, the Bank requested that the court reserve jurisdiction to determine the reasonable amount of attorney's fees and costs as the Bank did not have an expert available to testify at trial. The court did not make any rulings and instead requested that each party submit a proposed final judgment. The court ultimately entered the proposed final judgment submitted by the Bank with some modifications. Specifically, the court crossed out the amounts that the Bank listed for attorney's fees and costs and also crossed out the word "Reserved" written next to those amounts.

Following entry of the final judgment, the Bank filed a motion to amend the final judgment to include attorney's fees and costs following an evidentiary hearing. For reasons not entirely clear, the matter was specially set for an evidentiary hearing before a second judge. Appellant objected and moved to strike the motion and sought sanctions on the grounds that the Bank's motion was frivolous and in contradiction to the final judgment.

Unbeknownst to the parties, the day prior to the scheduled hearing, the original judge entered an order denying the Bank's motion to amend the final judgment to include attorney's fees and cancelling the evidentiary hearing before the second judge. Having not received this ruling, the parties proceeded as scheduled to the hearing before the second judge. At the beginning of the hearing, Appellant reiterated his position that the original judge had already ruled on the issue of entitlement to attorney's fees and costs. The second judge denied Appellant's motion to strike and proceeded with an evidentiary hearing on the fee claim. Ultimately the second judge entered an amended final judgment and awarded the Bank attorney's fees and costs. After receiving the original judge's ruling, Appellant moved to vacate the amended final judgment of foreclosure, which the second judge denied.

On appeal, Appellant argues that because the original judge made a definitive ruling on the issue of entitlement to attorney's fees, the second judge abused his discretion in proceeding with the evidentiary hearing in the first place, amending the final judgment, and denying the motion to vacate. We agree.

It is well established that "a successor judge may not correct errors of law committed by his predecessor and hence he cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor." Drdek v. Drdek , 79 So.3d 216, 219 (Fla. 4th DCA 2012) (quoting Groover v. Walker , 88 So.2d 312, 313 (Fla. 1956) ). Accordingly, when a party is aggrieved by a final judgment, the proper procedure is for the aggrieved party to seek review on appeal, not in front of a different trial court judge. Id. Here, the judge who presided over the trial made a definitive ruling on the issue of entitlement to attorney's fees and costs, both in the original final judgment and the order denying the Bank's motion to amend the final judgment to include attorney's fees and costs. These rulings were made before the second judge considered the fee issue. Accordingly, the second judge had no authority to reverse the original judge's decision to deny attorney's fees and costs. Id.

Reversed.

Taylor and May, JJ., concur.


author: Belanger, Robert, Associate Judge.

text:
    Jonathan ROUFFE and Rachel Pearl a/k/a Rachel Rouffe, Appellants, v. CITIMORTGAGE, INC., Appellee.
    No. 4D16-3583
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    W. Trent Steele of Steele Law, Hobe Sound, for appellants.
    David Rosenberg and Jarrett Cooper of Robertson, Anschutz & Schneid, P.L., Boca Raton, for appellee.
   Belanger, Robert, Associate Judge.

Appellants, Jonathan Rouffe and Rachel Pearl, a/k/a Rachel Rouffe, ("the Heirs"), appeal the final judgment of foreclosure entered in favor of appellee, CitiMortgage, Inc. ("Citi"). On appeal, the Heirs contend that the trial court erred in denying their motion for involuntary dismissal at trial, arguing that Citi failed to prove the borrower defaulted, Citi failed to provide evidence of a forbearance agreement, and failed to establish the correct date of default. For the reasons discussed below, we affirm in part and reverse in part with remand.

In 2003, the borrower borrowed money to purchase her home. Citi acquired the note and mortgage which secured the borrower's loan.

In March 2010, the borrower failed to make payments required under the loan. In March 2011, the borrower died, and in November 2011, Citi filed a foreclosure action to enforce the note and mortgage. The Heirs were heirs of the borrower, and were indispensable parties properly named in Citi's complaint.

At trial, Citi's main witness testified regarding the date of default, but provided several dates, explaining that the borrower made partial payments for some time, so there was a date of "last full payment," versus partial payments received.

This witness also mentioned forbearance agreements between the borrower and Citi, and over Citi's objection, the Heirs' counsel questioned the witness regarding these agreements. Neither party, however, offered the agreements into evidence.

After Citi rested, the Heirs moved for involuntary dismissal, arguing that Citi failed to provide the forbearance agreements, and therefore, failed to prove how and when the borrower defaulted. The trial court disagreed, denied the Heirs' motion, and eventually entered a final judgment of foreclosure. The Heirs gave notice of appeal.

The applicable standard of review for a motion for involuntary dismissal is de novo . Deutsche Bank Nat'l Tr. Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012). A motion for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b) in a non-jury trial can be equated to a motion for directed verdict in a jury trial:

When an appellate court reviews the grant of a motion for involuntary dismissal, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.

Id. ; see also Deutsche Bank Nat'l Tr. Co. v. Huber , 137 So.3d 562, 563-64 (Fla. 4th DCA 2014). On appeal, the Heirs argue, as they did below, that Citi failed to prove how and when the borrower defaulted.

We affirm the trial court's ruling for two reasons: (1) the Heirs did not have standing to challenge the borrower's liabilities under the note and mortgage; and (2) even if the Heirs did have standing, it was their burden to plead the affirmative defense regarding the forbearance agreement.

In Clay County Land Trust No. 08-04-25-0078-014-27, Orange Park Trust Services, LLC v. JPMorgan Chase Bank, National Ass'n , 152 So.3d 83 (Fla. 1st DCA 2014), the appellant, the current owner of the property at issue, asserted that the appellee-bank failed to give the borrower written notice of default and an opportunity to cure as required by the mortgage. Id. at 84. The First District held that "[b]ecause appellant was not a party to the mortgage, appellee correctly asserts that appellant does not have standing to challenge any violation of these mortgage terms." Id. The borrower "was the only party who could plead nonperformance of these conditions precedent." Id. ; see also Pealer v. Wilmington Tr. Nat'l Ass'n for MFRA Tr. , 212 So.3d 1137, 1139 (Fla. 2d DCA 2017) ("At no time were the Pealers parties to the note and mortgage. As such, the Pealers' interest is limited to their possession of the property and is subordinate to the bank's interest, which stems from the note and mortgage. Therefore, the Pealers may participate in the bank's foreclosure proceedings only to the extent that they plan to exercise their statutory right of redemption....").

We hold that since the Heirs were not parties to the note and mortgage in this case, they lack standing to challenge the borrower's rights and liabilities under the contract as opposed to challenging only the amount of damages. Clay Cty., 152 So.3d at 84 ; Pealer , 212 So.3d at 1139.

However, even if the Heirs had standing, we would still affirm. On appeal, the Heirs argue that Citi failed to prove the borrower's default. Specifically, the Heirs argue that Citi was required, but failed, to allege and prove a default of the forbearance agreement, as opposed to proving a default of the original note and mortgage. They cite to two cases in support of this argument: Nowlin v. Nationstar Mortgage, LLC, 193 So.3d 1043 (Fla. 2d DCA 2016), and Kuehlman v. Bank of America, N.A., 177 So.3d 1282 (Fla. 5th DCA 2015). However, Nowlin and Kuehlman are distinguishable insofar as both cases involved the parties who actually signed the note and mortgage, and therefore had standing to contest liability under the contract as modified. Nowlin , 193 So.3d at 1044 ; Kuehlman , 177 So.3d at 1283. Here, as Citi correctly argues, and discussed above, the Heirs were never parties to the note and mortgage, and as such, lacked standing to litigate the borrower's liability thereunder.

We also agree with Citi's argument that even if the Heirs had standing, it was their burden to plead the existence of a modification or forbearance agreement as an affirmative defense. Accord Bank of N.Y. Mellon v. Bloedel, 2018 Fla. App. LEXIS 1242, 2018 WL 627016, 236 So.3d 1164 (Fla. 2d DCA Jan. 31, 2018) ("[W]e are certain that neither Kuehlman nor this court's parenthetical citation to Kuehlman in Nowlin , 193 So.3d at 1046, purported to recede from long-settled law that modification, when asserted as an avoidance of liability, is an affirmative defense." (footnote omitted) ).

We agree with Citi and align our court with the well-reasoned opinion of Bloedel .

Bloedel reiterates well-settled law, that:

The effect of a modification to a legal agreement, to the extent it would constitute an avoidance of all or part of a defendant's liability under the agreement, is an affirmative defense that must be pled and proven by the defendant. See Fla. R. Civ. P. 1.110(d)"[A] party shall set forth affirmatively ... any other matter constituting an avoidance or affirmative defense."; BSP/Port Orange, LLC v. Water Mill Props., Inc. , 969 So.2d 1077, 1078 (Fla. 5th DCA 2007) (holding that an alleged modification to an oral commission agreement was an affirmative defense that had to be pled).

Notably, although we hold that the Heirs lack standing to challenge liability in this case, they do have standing to challenge the amount due under the note, because it affects their substantive right of redemption under section 45.0315, Florida Statutes (2016). In this case, there was testimony and evidence in the form of a payment history, sufficient to present a prima facie case on damages. Wachovia Mortg., F.S.B. v. Goodwill , 199 So.3d 346, 348 (Fla. 4th DCA 2016) (remanding for further proceedings because "[t]he payment history and testimony of [the bank]'s witness were sufficient to present a prima facie case on damages and withstand involuntary dismissal"); Ottawa Props. 2 LLC v. Cent. Mortg. Co. , 202 So.3d 102, 103 (Fla. 4th DCA 2016) ("Because there was some, but insufficient, evidence of the total amount of indebtedness, we reverse on the issue of damages and remand for further proceedings.").

However, we agree with the Heirs that the conflicting evidence regarding the exact date of default affects the specific amount due in order to exercise their right of redemption.

As this court held in Beauchamp v. Bank of New York , 150 So.3d 827 (Fla. 4th DCA 2014) :

Beauchamp has a right of redemption wherein he may prevent divestiture of his legal title upon payment of the amount of the debt specified in the judgment. CCC Props., Inc. v. Kane , 582 So.2d 159, 161 (Fla. 4th DCA 1991) ; § 45.0315, Fla. Stat. (2013). Therefore, even though Beauchamp is not personally liable for the debt, the amount of the debt owed is important as it relates to Beauchamp's right of redemption, specifically as to the amount due under the judgment in order to exercise his right to stop the foreclosure sale.
Thus, the Bank's failure to provide admissible evidence that would establish the proper amount due on the note was not harmless error. Rather, proof of the amount of debt owed was required to allow the foreclosure, and Beauchamp's ownership rights and right of redemption are substantive rights that were adversely affected by the error.

Id. at 828-29 (footnote omitted).

As in Beauchamp , we affirm the judgment of foreclosure, except as to the amount due under the note, and remand the case for further proceedings to determine that amount.

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

Ciklin and Klingensmith, JJ., concur.


author: Forst, J.

text:
    Shiva STEIN, on behalf of herself and all others similarly situated, Appellant, v. BBX CAPITAL CORP., John E. Abdo, Norman H. Becker, Steven M. Coldren, Willis N. Holcombe, Jarett S. Levan, Anthony P. Segreto, Charlie C. Winningham II, BFC Financial Corporation, and BBX Merger Subsidiary LLC, Appellees.
    No. 4D16-4309
    District Court of Appeal of Florida, Fourth District.
    [March 21, 2018]
    Emily Komlossy and Ross A. Appel of Komlossy Law, P.A., Hollywood, and Gustavo F. Bruckner and Gabriel Henriquez of Pomerantz LLP, New York, NY, for appellant.
    Eugene E. Stearns, Grace L. Mead, Andrea N. Nathan, and Veronica de Zayas of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, and Thomas G. Aubin of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, for BFC Financial Corporation, BBX Merger Subsidiary LLC, John E. Abdo, and Jarett S. Levan.
    Brian P. Miller and Samantha J. Kavanaugh of Akerman LLP, Miami, for BBX Capital Corporation, Norman H. Becker, Steven M. Coldren, Willis N. Holcombe, Anthony P. Segreto, and Charlie C. Winningham II.
   Forst, J.

Appellant Shiva Stein, on behalf of herself and others similarly situated, challenged the consideration offered for her shares in Appellee BBX Capital Corporation that were acquired in a merger with Appellee BFC Financial Corporation. She appeals a final order dismissing her complaint with prejudice. Concluding that Appellant has not set forth "sufficient ultimate facts" showing entitlement to relief beyond the statutory remedy to which Appellee concedes Appellant is entitled, we affirm.

Background

At the time of her complaint, Appellant owned shares of BBX. Her complaint was directed at BFC's proposed acquisition of BBX. BFC already owned eighty-one percent of BBX, and sought to acquire the remaining nineteen percent in exchange for cash or shares in BFC. The purchase was conditioned on both the approval of a special committee composed of independent BBX directors and an approving vote of a majority of the minority BBX shareholders unaffiliated with BFC. Under the terms of the proposed transaction, BBX shareholders could elect to receive shares of BFC's common stock; a cash payment for each share held; or a combination of shares and cash.

The complaint maintained that the proposed transaction significantly undervalued BBX with flawed calculations and that, by agreeing to sell BBX at an inadequate price, the result of an unfair process, the BBX board breached its fiduciary duties to shareholders. Appellant also alleged that material calculations were omitted in arriving at a sale price, and that minority shareholders were not fully informed with respect to the material details of the transaction. Appellant refused the near exclusive statutory remedy of an independent appraisal pursuant to section 607.1302, Florida Statutes (2016). Instead, she contended that she qualified for the statute's limited exception to appraisal set forth in section 607.1302(4)(b) (discussed below), and sought equitable relief from the courts. The trial court's order quoted Williams v. Stanford , 977 So.2d 722, 730 (Fla. 1st DCA 2008), and dismissed the complaint because it failed to sufficiently allege "specific acts of fraud, misrepresentation, self-dealing, [or] deliberate waste of corporate assets."

Analysis

The standard of review of orders dismissing complaints with prejudice is de novo. MEBA Med. & Benefits Plan v. Lago , 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). To survive a motion to dismiss, a complaint must allege "sufficient ultimate facts" showing entitlement to relief. Id. While we must accept the facts alleged as true and make all reasonable inferences in favor of the pleader, id. , conclusory allegations are insufficient. Shands Teaching Hosp. and Clinics, Inc. v. Estate of Lawson ex rel. Lawson , 175 So.3d 327, 331 (Fla. 1st DCA 2015) (en banc).

" Section 607.1302, Florida Statutes (2003)-Florida's 'appraisal rights' statute-generally requires minority shareholders who dissent from a major transaction or disposition of assets to seek the remedy of tendering their shares for appraisal and buy-back at a fair price ...." Williams , 977 So.2d at 726-27. The statute aids the courts from becoming "bogged down in a wide range of disputes over the fairness of cash-out prices." Id. at 729. This includes mergers. § 607.1302(1)(a), (e), Fla. Stat. (2016).

"A shareholder entitled to appraisal rights ... may not challenge a completed corporate action for which appraisal rights are available unless such corporate action: ... (b) [w]as procured as a result of fraud or material misrepresentation." § 607.1302(4). This exception Appellant invokes has been interpreted to mean:

Where the acts of waste of the corporate assets make the valuation on the appraisal date unfair, "a minority shareholder who alleges specific acts of 'fraud, misrepresentation, self-dealing, [or] deliberate waste of corporate assets,' may be entitled to equitable remedies beyond an appraisal proceeding if the alleged acts have so besmirched the propriety of the challenged transaction that no appraisal could fairly compensate the aggrieved minority shareholder."

Foreclosure FreeSearch, Inc. v. Sullivan , 12 So.3d 771, 777 (Fla. 4th DCA 2009) (alteration in original) (quoting Williams , 977 So.2d at 730 ). Typically, the misconduct would have to affect the value of the shares before appraisal rights are triggered, such that appraisal of the shares' worth "[i]mmediately before the effectuation of the corporate action to which the shareholder objects" would provide an unfairly low value. § 607.1301(4)(a), Fla. Stat. (2016).

"[A] plaintiff's mere allegation of 'unfair dealing,' without more, cannot survive a motion to dismiss ...." Rabkin v. Philip A. Hunt Chem. Corp. , 498 A.2d 1099, 1105 (Del. 1985) ). Here, the claims of breach of fiduciary duties are largely based on speculative and conclusory allegations that do not specifically assert fraud or material misrepresentation.

The sole Florida case that Appellant relies upon in seeking an exception to the general statutory remedy of appraisal, Williams , is quite distinguishable from the instant case. There, the court found that, at the time the minority shareholders' "appraisal right crystalized, the company's treasury-and thus the corresponding value of their shares-had been all but eviscerated through several years of ... alleged misappropriations and mismanagement of corporate funds ...," making appraisal of the shares' current worth likely insufficient and a hearing necessary to determine if they were entitled to "equitable remedies beyond an appraisal proceeding if those allegations are proven true ...." Williams , 977 So.2d at 729-30. see also Foreclosure FreeSearch , 12 So.3d at 778 (noting that "additional relief" is appropriate under the Williams analysis "where the majority has engaged in bad conduct and fraudulently diluted the value of the corporation.").

Appellant does not assert specific claims of "misappropriation," "mismanagement," or "fraudulent[ ] dilut[ion of] the value of the corporation" in the instant case. Although she speaks of "procedural shenanigans" in her initial brief, the focus of her complaint is on her perceived lack of access to information regarding the merger. However, an adequate remedy at law exists-a court-supervised independent appraisal, wherein she would be "entitled to the same discovery rights as parties in other civil proceedings." Foreclosure FreeSearch , 12 So.3d at 776 (quoting § 607.1330(4), Fla. Stat.).

Conclusion

Attempting to invoke section 607.1302(4)(b), Appellant's complaint baldly asserts that the offer to the shareholders "[w]as procured as a result of fraud or material misrepresentation." We agree with the trial court's well-articulated and supported order which concludes that Appellant's "complaint is devoid of any allegations of specific acts of fraud or misrepresentation, such that [Appellant] has remedies beyond appraisal." As noted above, an adequate remedy at law was available. Therefore, we affirm.

Affirmed .

Gross and Kuntz, JJ., concur.


author: Klingensmith, J.

text:
    Mark C. CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-385
    District Court of Appeal of Florida, Fourth District.
    [March 28, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

In this appeal, we are asked to decide whether a trial court reversibly erred by denying a challenge for cause against a potential juror, even though that person was not ultimately seated on the jury. Under the circumstances of this case, we hold it was error, and reverse for a new trial.

Appellant Mark Campbell was charged with lewd or lascivious molestation of a child over the age of twelve, but under sixteen; showing obscene material to a child; and lewd or lascivious exhibition in the presence of a child. During jury selection, defense counsel asked if any juror agreed that children do not lie about sexual abuse. One potential juror, a social worker whose agency dealt with two high-profile pedophile cases in another state, was specifically asked by counsel about how she assessed the credibility of child witnesses. She explained, "I would have to be honest in saying my experience in thirty-five years in being a social worker, in working with kids, my experience has been that kids don't lie in instances of child abuse and child sexual abuse . I can only talk about my experience." (Emphasis added).

The trial court attempted to rehabilitate the juror, and advised her that jurors are not supposed to imprint their experience on jury instructions or the law. When asked if she could follow the law, the juror stated she could. However, defense counsel later asked all the prospective jurors to raise their hand if they agreed that children do not lie about sexual abuse, to which this particular juror responded that she strongly agreed that children never lie about sexual abuse and rated the strength of her opinion as a "nine out of ten, 9.5."

At the conclusion of voir dire, while arguing for cause challenges, defense counsel moved to strike this juror because of her candid reaction to the nature of the case and the feeling that she would potentially find appellant guilty if he decided not to testify. The trial court denied the challenge for cause, and explained it had successfully rehabilitated the entire jury pool by instructing them to consider and assess the credibility of each witness, regardless of age, in light of all the testimony and evidence presented during trial.

Defense counsel ultimately used a peremptory challenge on the social worker and another juror after cause challenges against them were also denied. Defense counsel then requested two additional peremptory challenges to exercise against two other specifically identified jurors, in place of the two cause challenges that were denied. This request was rejected by the trial court, and both of the identified jurors served on the jury panel.

Appellant was found guilty of all three charges, sentenced to twenty-five years in prison, and was designated a sexual offender. This appeal followed.

"The standard of review of a trial court's ruling on a cause challenge is one of abuse of discretion.... Abuse of discretion occurs when the record reveals reason to doubt impartiality." Ranglin v. State , 55 So.3d 744, 746 (Fla. 4th DCA 2011). The failure to strike a juror for cause is not subject to a harmless error analysis. See Bryant v. State , 765 So.2d 68, 69 (Fla. 4th DCA 2000).

As a general rule, denying a challenge for cause is not prejudicial if the objectionable juror does not serve and is not replaced by an objectionable juror. See Penn v. State , 574 So.2d 1079, 1081 (Fla. 1991). An objectionable juror "must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted." Croce v. State , 60 So.3d 582, 585 (Fla. 4th DCA 2011) (quoting Trotter v. State , 576 So.2d 691, 693 (Fla. 1990) ).

In Trotter , the defendant claimed the trial court erred in failing to excuse four prospective jurors for cause, which forced the defense to exercise four peremptory challenges to remove them. 576 So.2d at 692. Trotter argued that he was entitled to a new trial because he exhausted all peremptory challenges and his request for an additional peremptory challenge was denied. Id. The Florida Supreme Court upheld Trotter's convictions because he failed to show that a biased juror was seated and served on the deliberating panel. Id. at 692-93.

As the Florida Supreme Court explained:

Under Florida law, "[t]o show reversible error, a defendant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted." Pentecost v. State , 545 So.2d 861, 863 n.1 (Fla. 1989). By this we mean the following. Where a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily . This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted. The defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial.

Id. at 693 (emphasis added) (footnotes omitted). Trotter's request for an additional peremptory challenge was not made in connection with any particular juror, but was a general request for a challenge to exercise in the future. Id. at 693 n.7.

Unlike that case, appellant has successfully met both criteria, which entitles him to a new trial. First, we agree that the trial court erred by denying the challenge for cause as to the social worker. As we recently said in Rentas v. State , "[a] juror is not impartial when one side must overcome a preconceived opinion in order to prevail." 43 Fla. L. Weekly D129, D130, 237 So.3d 368, 372 (Fla. 4th DCA January 10, 2018) (quoting Reid v. State , 972 So.2d 298, 300 (Fla. 4th DCA 2008) ). There, prospective jurors expressed firm beliefs about purported false confessions by defendants, especially in cases involving child molestation, even though attempts were made to rehabilitate them. Id. at D129. However, a trial court's attempt to rehabilitate a juror does not automatically overcome that juror's inherent bias. See Montozzi v. State , 633 So.2d 563, 565 (Fla. 4th DCA 1994) (holding it was error to deny a challenge for cause where prospective juror expressed disapproval of the kind of activity defendant was involved in based on her experiences).

In Montozzi , we stated that "[w]hile this is indeed an area of trial judge discretion, nevertheless we have ordered new trials ourselves where we were convinced of the existence of reasonable doubts." Id. We continued:

Few jurors would resolutely continue to admit that they have a bias after having a prosecutor and a trial judge cloak them in a duty to be fair. Some answers by prospective jurors should simply be deemed alone disqualifying, no matter how earnestly counsel and the trial judge seek to save them. In this case, the bell earlier rung by this juror was sounded again even while she was being "rehabilitated."

Id.

Here, the juror rang the proverbial bell twice, one coming after the court's attempt at rehabilitation. Although she agreed that she could put aside her prior experiences when questioned by the trial judge, she nonetheless doubled-down on her previous statement that children never lie about sexual molestation after further questioning by defense counsel. Thus, any prior concern about the juror's ability to participate was not dissipated after the court's instruction. See Cason v. State , 760 So.2d 283, 284 (Fla. 4th DCA 2000).

Second, appellant specifically identified an objectionable juror that would have been stricken using the additional peremptory challenge requested when the cause challenge was improperly denied. After the request for additional challenges was rejected, the identified objectionable juror was seated on the jury. Therefore, the process set forth by the Florida Supreme Court in Trotter was followed. 576 So.2d at 693.

We remand this case to the trial court for a new trial. Because we do so, we find it unnecessary to address the other issues raised by appellant in this appeal and affirm those without comment.

Reversed and remanded .

Ciklin and Levine, JJ., concur.


author: Per Curiam.

text:
    Miguel TIRADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2043
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    James S. Lewis, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. See State v. Abreau , 363 So.2d 1063 (Fla. 1978) (where the omitted instruction relates to an offense two or more steps removed, the reviewing courts may properly find such error to be harmless).

Levine, Conner and Forst, JJ., concur.


text:
    Lynn HAMLET, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-100
    District Court of Appeal of Florida, Fourth District.
    [April 11, 2018]
    Lynn Hamlet, Indiantown, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Rodriguez v. State , 826 So.2d 464 (Fla. 3d DCA 2002), rev. denied , 848 So.2d 1155 (Fla. 2003).

May, Damoorgian and Kuntz, JJ., concur.


author: PER CURIAM.

text:
    Theron H. WORTH, et al., Petitioners, v. The ESTATE OF Idelle STERN, etc., et al., Respondents.
    Nos. 3D17-907 3D17-905 & 3D17-903
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018 Rehearing Denied April 13, 2018
    Wintter & Associates, P.A., and Christopher Q. Wintter and Max G. Soren (Hollywood), for petitioners.
    Stok Folk + Kon, and Robert A. Stok and Joshua R. Kon, for respondents.
    Before LOGUE, SCALES and LINDSEY, JJ.
   PER CURIAM.

Our certiorari review of the trial court's order granting Respondents' motion for leave to file a claim for punitive damages is limited to whether the trial court applied the correct law. TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So.3d 516, 519 (Fla. 3d DCA 2016). While we might have concerns regarding the sufficiency of the evidence proffered by Respondents as to the alleged intentional misconduct or gross negligence of Petitioners, on this record we are unable to conclude that the trial court, in adjudicating Respondents' motion for punitive damages, failed to apply the correct law, i.e., the procedural standards set forth in section 768.72 of the Florida Statutes.

Petitions denied.


author: LOGUE, J.

text:
    HSBC BANK USA, NATIONAL ASSOCIATION, etc., Appellant, v. Joseph T. BUSET, etc., et al., Appellees.
    No. 3D16-1383
    District Court of Appeal of Florida, Third District.
    Opinion filed February 7, 2018
    Greenberg Traurig, P.A., and Kimberly S. Mello, Jonathan S. Tannen, and Vitaliy Kats (Tampa), for appellant.
    Jacobs Keeley, PLLC, and Bruce Jacobs and Court Keeley, for appellee Joseph T. Buset.
    Levine Kellogg Lehman Schneider Grossman LLP, and Stephanie Reed Traband and Victor Petrescu, for Federal National Mortgage Association and Federal Home Loan Mortgage Corporation, as amici curiae.
    Before LOGUE, LUCK, and LINDSEY, JJ.
   LOGUE, J.

HSBC Bank USA, National Association appeals a final judgment dismissing its mortgage foreclosure complaint in favor of the Borrowers, Joseph and Margaret Buset. At first blush, this case appears straightforward: the Borrowers stipulated to the note, mortgage, and default. And at the time the complaint was filed, the Bank was the holder of the note with an indorsement in blank that had been modified to a special indorsement to the Bank. At some point, however, the focus of this case shifted from foreclosure to securitization. Relying heavily on expert legal testimony of an out-of-state lawyer who specialized in securitization, the trial court dismissed the foreclosure after the trial. For the reasons described below, we reverse and direct the trial court to enter judgment for the Bank.

FACTS

In October 2012, HSBC Bank as Trustee for Fremont Home Loan Trust 2005-B filed a foreclosure action against the Busets. The complaint alleged that the Bank held the note and mortgage, the Busets had failed to pay, and the Bank had complied with all conditions precedent. Copies of the note and mortgage were attached to the complaint.

The evidence at trial indicated that on February 16, 2005, the Busets borrowed $192,000 from Fremont Investment & Loan (the Originator). The loan was secured by a mortgage on a residential condominium. The mortgage named Mortgage Electronic Registration Systems, Inc. (MERS) as "mortgagee."

Within a few months, the Originator packaged the note with others for purposes of securitization and sale to investors. In this regard, the Originator entered into a Pooling and Servicing Agreement for the "Fremont Home Loan Trust 2005-B Mortgage Backed Certificates Series 2005-B." The parties to the Agreement included the Originator, another entity as Depositor, and the Bank as Trustee.

The Pooling and Servicing Agreement required the Originator to sign blank indorsements in the following form: "Pay to the order of ______, without recourse." The note contains an undated, signed, blank indorsement in exactly that form signed by the Senior Vice President of the Originator. As required by the Agreement, the Note was transferred from the Originator, to the Depositor, to the Bank. In July 2008, the Originator entered into a voluntary liquidation. At an unknown date, the Originator's blank indorsement was converted to a special indorsement to the Bank as payee. This handwritten change was undated and unsigned.

In 2012, after the Borrowers defaulted on the note, MERS executed a recorded assignment of the mortgage to the Bank which reads "This assignment is from ... MERS as nominee for Fremont Investment & Loan, ... its successors and assigns ... to HSBC Bank."

Over the course of its history, the loan had three servicers. To prove the amount of the default at trial, the Bank offered the testimony of the current servicer who proffered as business records the payment history, default letters, and payoff printout. These records indicated the Borrowers had stopped making payments by September 1, 2010. The trial court, however, excluded the documents from evidence, concluding that the Bank failed to present a sufficient foundation.

The Borrowers presented one witness, Kathleen Cully, who is admitted to the Bar of New York but not Florida. She is an expert in securitizing income flows for sale to investors, but she acknowledged she was "not an expert in Florida law." Over the Bank's objection, Ms. Cully testified to numerous legal opinions, including her opinions that the note at issue was not negotiable; that the Bank lacked standing; and that the Pooling and Servicing Agreement was violated.

After trial, the trial court dismissed the case. Throughout the final judgment, the trial court emphasized that its legal conclusions were based on Cully's opinions, mentioning Cully by name at least seven times. Regarding Cully's legal opinions, the final judgment included statements such as the trial court "gives great weight as the trier of fact to the testimony of Defendant's expert witness, Kathleen Cully," suggesting Cully's opinions presented questions of fact subject to credibility determinations rather than legal issues controlled by Florida law. The final judgment holds in relevant part that (1) the note was not a negotiable instrument; (2) the Bank lacked standing; (3) the Bank violated the Pooling and Servicing Agreement; (4) the Servicer's business records were inadmissible; and (5) the Bank had unclean hands. The Bank timely appealed.

ANALYSIS

(1) The trial court erred by admitting expert testimony on legal issues.

The Bank argues that the trial court committed reversible error by permitting Ms. Cully, the Borrowers' expert witness, to testify to legal issues. We agree. Even if Cully had an expertise in Florida law, the admission of expert testimony on the legal issues central to the case was an abuse of discretion.

The law is well established that "[a]n expert should not be allowed to testify concerning questions of law." Edward J. Seibert, A.I.A. Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass'n, Inc., 573 So.2d 889, 891 (Fla. 2d DCA 1990). As this court has explained, "opinion that amounts to a conclusion of law cannot be properly received in evidence since the determination of such questions is exclusively within the province of the court." McKesson Medication Mgmt., LLC v. Slavin, 75 So.3d 308, 312 n.5 (Fla. 3d DCA 2011) (citations omitted). See also Lee Cty. v. Barnett Banks, Inc., 711 So.2d 34, 34 (Fla. 2d DCA 1997) (stating that "[e]xpert testimony is not admissible concerning a question of law" because the resolution of legal issues "is a legal determination to be made by the trial judge, with the assistance of counsels' legal arguments, not by way of 'expert opinion' ").

(2) The note was a negotiable instrument under Florida law.

(a) In General

The trial court concluded that the note was non-negotiable for three different reasons. First, the final judgment states "[t]he Court applies Ms. Cully's reasoned analysis as it relates to the note and mortgage for the subject loan and to Article 3 of Florida's Uniform Commercial Code." Ms. Cully opined that a promissory note secured by a mortgage was a secured interest under Article 9 and not a negotiable instrument under Article 3.

For over a century, however, the Florida Supreme Court has held such notes are negotiable instruments. Downing v. The First Nat'l Bank of Lake City, 81 So.2d 486, 488 (Fla. 1955) (quoting Scott v. Taylor, 63 Fla. 612, 58 So. 30 (1912) ) (a note and mortgage "are governed by the rules relating to negotiable paper"). And every District Court of Appeal in Florida has affirmed this principle. Even if, as the trial court noted in the final order, "no Florida appellate court has yet to consider Ms. Cully's analysis," the trial court erred by failing to follow controlling precedent. Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) (noting that "in the absence of interdistrict conflict, district court decisions bind all Florida trial courts").

(b) Negotiability was not destroyed by the note's reference to the mortgage.

The second reason the trial court concluded that the note was not a negotiable instrument was Cully's testimony that the note's negotiability was destroyed because it referred to the mortgage which purportedly contained provisions limiting transferability. The final judgment's analysis in this regard was expressly rejected in OneWest Bank, FSB v. Nunez, 193 So.3d 13, 15 (Fla. 4th DCA 2016).

Although a note's negotiability may be destroyed if the note expressly incorporates a mortgage that contains terms that would limit transferability, Holly Hill Acres, Ltd. v Charter Bank of Gainesville, 314 So.2d 209 (Fla. 2d DCA 1975), the Nunez court clarified that this principle applies only if the note expressly incorporates the terms of the mortgage: it does not apply when the note merely references the mortgage. As the Fourth District explained,

there is a difference between a mere reference to a note being secured by a mortgage and stating that "the terms of said mortgage are by this reference made a part hereof." The former merely referred to a separate agreement, while the latter rendered the note "subject to" the mortgage, and therefore, non-negotiable.

Nunez, 193 So.3d at 16. This distinction is recognized by Florida's Uniform Commercial Code. § 673.1061, Fla. Stat. ("A reference to another writing does not of itself make the promise or order conditional.").

The distinction identified by the Nunez court applies here. While the note at issue in this case mentions the mortgage ("In addition to the protections given the Note Holder under this Note, a Mortgage ... protects the Note Holder from possible losses...."), it does not expressly incorporate the mortgage like the note in Holly Hill ("The terms of said mortgage are by this reference made a part hereof."). For this reason, it does not matter whether the terms of the mortgage would prevent negotiability if they were incorporated into the note because the terms of the mortgage were not incorporated into the note.

(c) Negotiability was not destroyed by the definition of "Note Holder."

The trial court's third reason for concluding that the note was not a negotiable instrument was Cully's testimony that the note's negotiability was destroyed by its definition of "Note Holder." The note defined "Note Holder" as "anyone who takes this Note by transfer and who is entitled to receive payments under this Note." The final judgment reasoned that this language showed the parties intended "to contract out of the UCC definition of holder, so as to limit the right to enforce only to those who proved ownership." But this reasoning was expressly rejected in Horvath v. Bank of New York, N.A., 641 F.3d 617, 622 (4th Cir. 2011).

In Horvath, the Fourth Circuit refused to interpret identical language, which defined "Noteholder" as "anyone who takes this Note by transfer and who is entitled to receive payments under this Note," as indicating an intent to destroy the note's negotiability. Id. at 622. To the contrary, the circuit court of appeals held the language meant "precisely the opposite." Id. It held that a note with this language was a negotiable instrument. Like the appellate court in Horvath, after carefully studying this provision of the note at issue here, we cannot find any intent in this language to limit the transferability of the note in a manner that indicates an intent by the parties to destroy its negotiability.

(3) The Bank had standing to foreclose.

Again following Ms. Cully's testimony, the trial court concluded the Bank did not have standing because the lack of "a complete chain of endorsements on the face of the note" created a "fatal break in the chain of title." This statement misapprehends the nature of negotiable instruments.

Because a foreclosure case is an action to enforce a negotiable instrument, standing in a foreclosure case is not based upon ownership of the note; it is based instead on whether the plaintiff is a "person entitled to enforce." § 673.3011. The term "person entitled to enforce" is a technical, defined term in all versions of the Uniform Commercial Code, including Florida's. Id. An entity may qualify as a "person entitled to enforce" for several reasons, but the most common reason is that the entity is "the holder of the instrument." Id. In a case where the plaintiff is asserting standing based upon its status as a "person entitled to enforce" because it is the holder of the instrument, proof of who owns the note is not necessary or even relevant to the issue of standing. Id. ("A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.").

Proof of who owns the note, such as a chain of title, may be relevant to a dispute where a person claims his or her ownership interest trumps the interest of the holder, but the borrower cannot make this argument on its own; instead, the person making that claim must be "joined in the action and personally assert[ ] the claim against the person entitled to enforce the instrument." § 673.3051(3). Even then, ownership is not relevant to standing so much as the question of who is the ultimate beneficial owner of the proceeds of the foreclosure, an issue not normally or necessarily part of a foreclosure case. In this regard, trial courts presiding over foreclosure cases are well served to keep in mind the following "oft-overlooked point":

Article 3 is sufficiently flexible to allow a single identified person to be both the "person entitled to enforce" the note, and an agent for all those who may have ownership interests in a note. This point reflects the view that so long as the maker's obligation is discharged by payment, the maker should be indifferent as to whether the "person entitled to enforce" the note satisfies his or her obligations, under the law of agency, to the ultimate owners of the note.

Veal v. Am. Home Mortg. Serv., Inc., 450 B.R. 897, 912 (9th Cir. BAP 2011).

Accordingly, because a plaintiff asserting standing based on its status as a holder of the note does not have to prove ownership, a plaintiff does not normally have to establish a "chain of indorsements" or a "chain of title." Summerlin Asset Mgmt. v Tr. v. Jackson, No. 9:14-CV-81302, 2015 WL 4065372, at *2 (S.D. Fla. July 2, 2015) ("Although Plaintiff has set forth a valid chain of assignments, the negotiation of the blank-indorsed note by transfer of possession alone makes Plaintiff the 'holder' of the note entitled to enforce it."); Baroni v. Bank of New York Mellon, No. 1:12-BK-10986-MB, 2016 WL 9211660, at *2 (C.D. Cal. Oct. 3, 2016) ("[The Bank] holds a negotiable instrument and has no duty to provide an unbroken chain of title."); JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1266 (2013) ("We conclude that the Note secured by the Mortgage in the instant case is a negotiable instrument .... As such, we find [the Borrower's] challenges to the chain of possession by which [the Bank] came to hold the Note immaterial to its enforceability by [the Bank].").

Turning to the facts of this case, because the Bank asserted standing based on its status as a holder of the note, it was error for the trial court to allow the focus of the pre-trial proceedings and the trial itself to shift from the relevant issue of whether the Bank is a "person entitled to enforce" to the irrelevant issue of whether the Bank is the owner of the note. The note here contained a blank indorsement by the Originator in exactly the form required by the Pooling and Servicing Agreement ("Pay to the order of ______, without recourse"). Once this blank indorsement was made on the note, the note became bearer paper, fully negotiable by simple transfer, like a signed check made out to cash or a signed check with the payee left blank. See, e.g., § 673.2011 ("If an instrument is payable to bearer, it may be negotiated by transfer of possession alone."). Negotiability by simple transfer is one of the defining characteristic of this type of commercial paper. It reflects one major difference between a negotiable instrument and, for example, a deed to land.

Any holder then became fully entitled to fill in the blank and name a specific payee, as happened here. See § 673.2051(3) ("The holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable."). See generally Grand Lodge, Knights of Pythias of Fla., v. State Bank of Fla., 79 Fla. 471, 84 So. 528, 534 (1920) ("[A] holder for value of negotiable paper otherwise perfect has the right to fill in the name of the payee.").

Under the law of negotiable instruments, therefore, the Bank had standing because it was the holder of a note originally indorsed in blank and then specially indorsed to the Bank. See, e.g., US Bank Nat'l Ass'n v. Laird, 200 So.3d 176, 177 (Fla. 5th DCA 2016) (concluding the Bank demonstrated it had standing when it "attached to its complaint a copy of the note and a copy of an allonge which contained a specific indorsement" to the Bank, and the Bank "later filed with the court the original note and allonge in the same condition"); Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320, 322 (Fla. 5th DCA 2013) ("In the present case, the original note Appellant attached was endorsed in blank with Appellant's name stamped in the blank endorsement field, which, paired with section 673.3011(1), established that Appellant was the holder entitled to enforce the instrument."); McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (noting a holder has standing of a note that either bears "a special endorsement in favor of the plaintiff or a blank endorsement").

(4) The purported violations of the Pooling and Servicing Agreement did not destroy standing.

The trial court further concluded that the Bank lacked standing because of violations of the Pooling and Servicing Agreement. For example, relying upon Cully's testimony, the trial court found the Bank lacked standing because the "endorsement is contrary to the unequivocal terms of the PSA ... which required all intervening endorsements be affixed to the face of the note because there was ample room for endorsements on the face of the note." This analysis missed the mark. The Borrowers are not parties to and are not third-party beneficiaries of the Pooling and Servicing Agreement. Indeed, the interests of the defaulting borrowers are adverse to the interests of the parties to the Agreement. Jepson v. Bank of New York Mellon, 816 F.3d 942, 946 (7th Cir. 2016).

Because the Borrowers are not parties or third-party beneficiaries to the Pooling and Servicing Agreement, they cannot raise purported violations of the Agreement to defend against foreclosure: "borrowers cannot defeat a foreclosure plaintiff's standing by relying upon trust documents to which the borrower is not a party." Citibank, N.A. v. Olsak, 208 So.3d 227, 230 (Fla. 3d DCA 2016) ; see also Castillo v. Deutsche Bank Nat'l Tr. Co., 89 So.3d 1069 (Fla. 3d DCA 2012) ("Because the appellant is neither a party to nor a third-party beneficiary of the trust, we find the appellant lacks standing to raise this issue and affirm the final judgment of foreclosure in favor of the appellee, as the holder of the original note and mortgage."); Jepson, 816 F.3d at 946 ("a mortgagor whose loan is owned by a trust is not an intended beneficiary of a trust, and does not have standing to challenge the trustee's possession or status as assignee of the note and mortgage based on purported noncompliance with certain provisions of a PSA [Pooling and Servicing Agreement]") (citations and quotations omitted).

(5) The assignment of the mortgage did not destroy standing.

As mentioned above, in preparation for the foreclosure, on June 25, 2012, MERS assigned the mortgage to the Bank in an assignment that was recorded in the public records on July 16, 2012. The mortgage had named MERS "as nominee for Lender and Lender's successors and assigns." And as reflected in the recorded assignment, MERS assigned the mortgage to the Bank "as nominee for Fremont Investment & Loan, ... its successors and assigns." The trial court found illegality here, concluding that the assignment should have expressly identified the Depositor and the Bank by name rather referring to them in the expression "Fremont, ... its successors and assigns." But there was nothing illegal or improper in the language used.

Moreover, the assignment of the mortgage was superfluous. It was unnecessary because Florida law has always held that the mortgage follows the note. See, e.g., First Nat. Bank of Quincy v. Guyton, 72 Fla. 43, 72 So. 460, 460 (1916) (noting that "when a note secured by mortgage is transferred, the mortgage follows the note as an incident thereto"); US Bank, NA v. Glicken, 228 So.3d 1194, 1196 (Fla. 5th DCA 2017) ("Indeed, the mortgage follows the note."). Thus, even if this assignment were void or voidable, which it is not, the Bank, as holder of the note, would have the authority to foreclosure the mortgage.

(6) The Servicer's business records were admissible.

At trial, the trial court excluded from evidence the payment history, default letters, and payoff printout, concluding that the Bank failed to make a proper foundation. This also was error.

Here, the Bank's loan analyst provided substantial testimony regarding the records. According to her testimony, she did not create the records, but she was trained on how these records were created and stored. The loan was first serviced by Fremont Investment & Loan, then by Litton Loan Servicing LP, and then Litton was acquired in its entirety by the current loan servicer, Ocwen Loan Servicing, LLC. The payment history, the default letters, and the payoff printout were essential records created in the regular course and scope of the servicers' business of servicing loans and mortgages, as is standard for this industry. By industry practice, the records of the amounts paid and remaining due are made at or near the time of the payment. The records acquired from the previous servicers were subject to a boarding process although not an audit. In fact, the servicer still has access to the records of the prior servicer it acquired.

This testimony provided a sufficient foundation to admit the records. Deutsche Bank Nat'l Tr. Co. v. de Brito, No. 3D16-1466, 235 So.3d 972, 974-76, 2017 WL 5163048, at *2 (Fla. 3d DCA Nov. 8, 2017) (reversing the trial court's exclusion of similar evidence based on virtually identical testimony laying the foundation of the business records). Indeed, "[w]here a business takes custody of another business's records and integrates them within its own records" the trustworthiness requirement of the records will be met in "most instances ... by providing evidence of a business relationship or contractual obligation between the parties that ensures a substantial incentive for accuracy." Bank of New York v. Calloway, 157 So.3d 1064, 1071-72 (Fla. 4th DCA 2015).

Significantly, the Borrowers did not present any evidence challenging the accuracy of the records. Indeed, they stipulated before trial that they had no ability to testify even to the payments they had made on the note. See WAMCO XXVIII, Ltd. v. Integrated Elec. Env'ts, Inc., 903 So.2d 230, 233 (Fla. 2d DCA 2005) ("The [opponents to admission of the business records] did not demonstrate, and nothing in the record establishes, that the loan information WAMCO received from Bank of America was suspect or untrustworthy or that the balances that WAMCO claimed as due were incorrect.").

(7) The Bank did not have unclean hands justifying dismissal.

Finally, the trial court dismissed the case because it concluded the Bank was acting with unclean hands by trying to defraud the court. For example, the final judgment states "[t]his court finds the AOM [assignment of mortgage] in 2012 does not document a transaction that occurred in 2005, as [the Bank] suggests" (emphasis added). It is not exactly clear what the trial court intended by this language. Taken literally, the final order seems to indicate the Bank endeavored to fraudulently induce the trial court into believing the 2012 assignment occurred in 2005.

Our careful review of the record, however, revealed nothing that supports this contention. Indeed, it was the Bank that offered the assignment of mortgage into evidence; the assignment is dated on its face as June 25, 2012; the copy of the assignment offered by the Bank into evidence indicates on its face it was recorded in the public records on July 16, 2012; and the Bank's witness consistently testified the assignment was executed in 2012. We surmise that the trial court's real concern was that the form of the assignment was insufficient because it referred to the Originator's "successors and assigns" but failed to expressly name them. We rejected this argument in our discussion above.

CONCLUSION

Accordingly, the final order is reversed. This case is remanded with instructions that the trial court enter an appropriate final judgment of foreclosure.

Reversed and remanded.

      See, e.g., Fed. Nat'l Mortgage Ass'n v. McFadyen, 194 So.3d 418, 419 (Fla. 3d DCA 2016) ("Promissory notes are, by definition, negotiable instruments ...."); Seffar v. Residential Credit Sols., Inc., 160 So.3d 122, 125 (Fla. 4th DCA 2015) (recognizing a promissory note as a negotiable instrument); Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013) (recognizing promissory note as negotiable instrument); Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011) (recognizing the promissory note as a negotiable instrument); Perry v. Fairbanks Capital Corp., 888 So.2d 725, 727 (Fla. 5th DCA 2004) (noting that "[a] promissory note is clearly a negotiable instrument within the definition of section 673.1041(1)").

      Although adopted after the filing of the complaint in this case, section 702.015, Florida Statutes (2017), Florida Rule of Civil Procedure 1.115 and Forms 1.944(a) and (b), have established pleading requirements and certifications related to a plaintiff's status as a person entitled to enforce.


text:
    Julius T. SLEDGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3010
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied May 1, 2018
    Julius T. Sledge, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition seeking belated appeal is denied on the merits.

Wetherell, Makar, and Kelsey, JJ., concur.


author: BLACK, Judge.

text:
    Charles W. GRIMES and Brenda Grimes, Appellants, v. Kevin R. LOTTES; Anthony F. Romano; and Debra B. Romano, Appellees.
    Case No. 2D16-5557
    District Court of Appeal of Florida, Second District.
    Opinion filed February 9, 2018
    Chris W. Altenbernd of Carlton Fields Jorden Burt, P.A., Tampa; Chris W. Altenbernd of Banker Lopez Gassler P.A., Tampa (substituted as counsel of record) for Appellants.
    Mark H. Muller of Mark H. Muller, P.A., Naples, for Appellee Kevin R. Lottes.
    No appearance for remaining Appellees.
   BLACK, Judge.

Charles and Brenda Grimes challenge the final summary judgment entered in favor of Kevin Lottes, a board-certified real estate attorney who was retained by Anthony and Debra Romano to represent them in the purchase of the Grimeses' home. Because genuine issues of material fact remain in dispute with regard to whether Mr. Lottes committed either a fraudulent or negligent misrepresentation or a fraudulent or negligent concealment by falsely assuring Mrs. Grimes, who was also the listing real estate agent, that no buyer's-side real estate broker commission would be payable in the transaction, we reverse.

While looking for a home in the Naples area in 2014, Mr. Romano located the Grimeses' home through an online search. The home was listed with Premier Sotheby's International Realty (Sotheby's), and after reviewing Sotheby's website and other online sources, Mr. Romano learned that Mrs. Grimes, a Sotheby's agent, was both the listing agent and the homeowner. So on January 15, 2015, Mr. Romano sent a message to Mrs. Grimes using the electronic form on Sotheby's website asking to see the home. But Mrs. Grimes was a new agent with Sotheby's and had not been trained on Sotheby's message routing system-a prerequisite to receiving messages-so Mr. Romano's message was not routed to her. Instead Mr. Romano's message was routed to other Sotheby's agents as a "lead" until it was ultimately accepted by Robert Hall. Mr. Hall called Mr. Romano and informed him that he worked for Sotheby's and agreed to set up a viewing of the Grimeses' home. Mr. Hall then contacted Mrs. Grimes and arranged for the showing. Although Mrs. Grimes and Mr. Hall both worked for Sotheby's, they had never met.

In preparation for the showing, Mr. Hall researched the Grimeses' home and neighborhood; he also researched other homes that might interest the Romanos. He spoke with Mr. Romano on the phone several times before the showing and sent Mr. Romano an email with several other potential listings. Mr. Hall was also in contact with Mrs. Grimes before the showing and learned that she was not only the listing agent but also the homeowner.

The Romanos met Mr. Hall at the Grimeses' home on January 23, and Mr. Hall presented them with a packet of information about the home. Mr. Hall introduced the Romanos to Mrs. Grimes as his clients and provided everyone with his business card. After guiding the Romanos and Mr. Hall on a thorough tour of her home, lasting thirty to forty minutes, Mrs. Grimes excused herself and allowed the group to continue viewing the home at their leisure. After Mr. Hall and the Romanos departed, Mrs. Grimes called Mr. Hall requesting feedback on the showing. Mr. Hall agreed to keep her informed if the Romanos had interest in the home; the two had no further contact until after the litigation began.

Mr. Hall called Mr. Romano multiple times after the showing and offered to put a contract together. Mr. Romano declined Mr. Hall's offer, and ultimately, on February 8, Mr. Romano informed Mr. Hall that his services would not be needed. During this same time frame, Mr. Romano retained Mr. Lottes in order to obtain a legal opinion as to whether the work Mr. Hall did in arranging the home visit and conducting the related research would constitute a "procuring cause" such that Mr. Hall might be entitled to a commission. Based on Mr. Romano's representations to Mr. Lottes regarding Mr. Hall's involvement, Mr. Lottes opined that Mr. Hall would not be entitled to a commission. In an email to Mr. Lottes dated February 7, Mr. Romano requested that Mr. Lottes contact Mrs. Grimes on behalf of him and his wife with an offer to purchase her home with Mr. Lottes' assurances that there would be no buyer's-side commission. Mr. Romano's email provides, in part:

Because there is a significant variance between the asking price and our offer and because we have no agent to manage the dialogue or negotiations, I would like it to be clear in the offer that I would be happy to talk with the owner directly about the "logic" behind our offer as well as any counteroffer.
In addition, as we discussed on the phone, I would like to use the language you suggested with regard to the fact that there will be no buyer[']s realty commissions and that we would expect that amount to be reflected in any agreement.

Two days later, Mr. Lottes sent the email that forms the crux of this case to Mrs. Grimes:

I represent Mr. Anthony F. Romano and his wife, Debra B. Romano, as their attorney in connection with the Romanos' attached Buyer-executed offer to purchase the above referenced property of which you are the owner and the listing agent. Please review the attached cash offer and, if it is acceptable, execute it where indicated on Page 10 and return it to me via fax or scanned e-mail.
Please note that the Romanos are not represented by any real estate broker in connection with the offer and/or their effort to purchase your property and, as a result, the purchase price reflected in their attached offer takes into account the fact that there would be no "Buyer's-side" or "Selling-side" co-brokerage commission payable in connection with this transaction.
In addition, please note that the Romanos are somewhat flexible as to the closing date and that, as a result, if a different closing date other than the April 28, 2015 if [sic] preferred by you, please let us know. Also, please note that, to the extent that there would be some specified exclusions concerning furnishings, personal property and the like (as referenced in Contract Lines 5-6), please let us know.
Finally, to the extent that you have questions or would like to discuss the Romanos' offer directly with Mr. Romano, he would welcome such direct communication with you .... Of course, if you wish to contact me, my contact information is listed below.

In the sales contract attached to Mr. Lottes' email the word "none" had been filled in in the space designated for identifying the buyer's-side broker. Mrs. Grimes believed that the initial offer was too low, so she and Mr. Romano communicated over the phone and via email for several days before finally agreeing on a price. Mr. Romano requested that Mrs. Grimes make the necessary changes to the proposed contract prepared by Mr. Lottes. The signed contract provided that there was no buyer's-side broker. Mrs. Grimes also added a claim to the terms and conditions of the contract clarifying that Sotheby's was to receive a total commission of $6310, which reflected the special discount Mrs. Grimes was entitled to as a Sotheby's agent and nothing more, in apparent reliance on Mr. Lottes' email. Two days after the contract was signed, Mrs. Grimes became suspicious about the manner in which Mr. Romano came to see her house. Up to that point, Mrs. Grimes believed that Mr. Romano was the "nice man" who had come to one of her open houses. Mr. Romano admitted that he had seen her home with Mr. Hall. Thereafter, the Grimeses declared the contract to be terminated.

On March 12, 2015, the Romanos filed suit against the Grimeses for breach and anticipatory breach of the real estate contract, requesting specific performance. In turn, the Grimeses filed a counterclaim against the Romanos and a third-party complaint against Mr. Lottes. Mr. Lottes moved for summary judgment, and the motion was granted. The operative counts of the second amended counterclaim and third-party complaint are as follows: fraudulent misrepresentation (count eight), fraudulent concealment (count nine), negligent misrepresentation (count ten), and negligent concealment (count eleven). The court's explanation for its determination on summary judgment was minimal: Mr. Lottes was entitled to summary judgment because there are no genuine issues of material fact with regard to the four claims raised by the Grimeses and the sales contract is clear and unambiguous. The Grimeses' motion for rehearing and clarification was denied. On appeal, the Grimeses assert that Mr. Lottes' statement regarding the buyer's-side commission was one of fact and not a mere legal opinion and is thus actionable in fraud. The Grimeses further argue that material facts remain in dispute precluding summary judgment.

"If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it." Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985) (first citing Williams v. Lake City, 62 So.2d 732, 733 (Fla. 1953) ; and then citing Crovella v. Cochrane, 102 So.2d 307, 310 (Fla. 1st DCA 1958) ).

"[T]here are four elements of fraudulent misrepresentation: '(1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.' " Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010) (quoting Johnson v. Davis, 480 So.2d 625, 627 (Fla. 1985) ). "[F]raud is not ordinarily a suitable subject for summary judgment." Richards v. Wax, 511 So.2d 433, 434 (Fla. 2d DCA 1987) (alteration in original) (quoting Levey v. Getelman, 408 So.2d 663, 665 (Fla. 3d DCA 1981) ). "[I]t is a subtle thing requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud." Id. (alteration in original) (quoting Amazon v. Davidson, 390 So.2d 383, 385 (Fla. 5th DCA 1980) ). The requirements to establish negligent misrepresentation are similar to those required to establish fraudulent misrepresentation, with the exception that the knowledge element requires only that "the representer either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false." Baggett v. Electricians Local 915 Credit Union, 620 So.2d 784, 786 (Fla. 2d DCA 1993) (citing Atl. Nat'l Bank of Fla. v. Vest, 480 So.2d 1328, 1331 (Fla. 2d DCA 1985) ).

Importantly, "[a] claim for fraudulent misrepresentation is not actionable if premised on a mere opinion, rather than a material fact." Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 172 (Fla. 4th DCA 1994) (citing Chino Elec., Inc. v. U.S. Fidelity & Guar. Co., 578 So.2d 320, 323 (Fla. 3d DCA 1991) ). The threshold determination regarding whether the representation is a fact or an opinion requires consideration of the surrounding circumstances. See Tres-AAA-Exxon v. City First Mortg., Inc., 870 So.2d 905, 907 (Fla. 4th DCA 2004). Where the representation "can be viewed as coming from one with superior knowledge of the subject of the statement," the representation should be treated as a fact.

Thor Bear, 648 So.2d at 172 (first citing A.S.J. Drugs, Inc. v. Berkowitz, 459 So.2d 348, 350 (Fla. 4th DCA 1984) ; then citing Amazon, 390 So.2d at 386 ; and then citing Ramel v. Chasebrook Constr. Co., 135 So.2d 876, 881-82 (Fla. 2d DCA 1961) ).

It is not clear whether the trial court determined that Mr. Lottes' statement was one of opinion and thus could not form the basis of a misrepresentation claim or whether the trial court determined that Mr. Lottes' statement was actionable as an assertion of fact but that Mr. Lottes was nonetheless entitled to summary judgment on the Grimeses' claims of fraud and negligence. But either way, the court erred. Given Mr. Lottes' competency and experience as a board-certified real estate attorney and his unambiguous email to Mrs. Grimes stating that the offer takes into account "the fact" that there would be no the buyer's-side commission, his statement could certainly be viewed as a fact. See Thor Bear, 648 So.2d at 172 (holding that landlord had "superior knowledge" of the parking facilities of the shopping complex such that her statements that the complex could accommodate the tenant's parking needs "should be treated as factual assertions," particularly since "her statements were not equivocal"); cf. Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA 1995) (holding that the sellers' statements to the buyer that the apartment building was "a very good building" requiring "normal type of maintenance" and "an excellent deal" were statements of opinion). And because a jury could have found-if given the opportunity-that Mr. Lottes' statement was one of fact, see Atl. Nat'l Bank of Fla., 480 So.2d at 1332 n.3, additional factual determinations must be made with regard to whether Mr. Lottes knew or should have known that his representation about the commission was false, whether Mr. Lottes intended to induce Mrs. Grimes to enter into a contract with Mr. Romano based on this representation, and whether it was appropriate for Mrs. Grimes to rely upon Mr. Lottes' representation. See D & M Jupiter, Inc. v. Friedopfer, 853 So.2d 485, 487 (Fla. 4th DCA 2003) (holding that since the seller's statement in the confidential offering memorandum that the "[s]ite drain requirements are met"-a statement made to address concerns about the property's propensity to flood-could form the basis of a misrepresentation, summary judgment was not warranted where multiple issues of fact had yet to be resolved); Baker v. United Servs. Auto. Ass'n, 661 So.2d 128, 132 (Fla. 1st DCA 1995) (holding that because the insurance agent's statement regarding the extent of the uninsured motorists coverage could be viewed as an assertion of fact under the circumstances of the case, this threshold determination of fact must be submitted to a jury as must questions regarding the agent's knowledge, the agent's intent to induce the insured's reliance, the insured's right to rely on the statement, and whether the insured did rely on the statement to his detriment); see also Bowman v. Barker, 172 So.3d 1013, 1017 (Fla. 1st DCA 2015) (holding that material issues of fact remained in dispute regarding knowledge and intent thus precluding summary judgment). Furthermore, Mr. Hall and Mrs. Grimes both worked for Sotheby's and as a matter of policy, commission disputes between agents are handled through an internal procedure-something that Mr. Lottes likely should have known if he was aware of Mr. Hall's status as a Sotheby's agent given Mr. Lottes' experience in the field.

Likewise, material facts remain in dispute with regard to whether Mr. Lottes acted intentionally or negligently in failing to disclose the extent of Mr. Hall's involvement in the real estate transaction. See Gutter v. Wunker, 631 So.2d 1117, 1118 (Fla. 4th DCA 1994) ("A [person's] knowing concealment or nondisclosure of a material fact may also support an action for fraud where there is a duty to disclose."). Here it remains in dispute whether Mr. Lottes owed a duty of disclosure to Mrs. Grimes given the nature of their interaction with regard to the real estate transaction. See Ramel, 135 So.2d at 882. Moreover, even if Mr. Lottes owed no duty of disclosure to Mrs. Grimes, his partial disclosure-that there would be no buyer's-side commission required-may have triggered a duty to disclose all of the facts surrounding the situation with regard to Mr. Hall's involvement. See Vokes v. Arthur Murray, Inc., 212 So.2d 906, 909 (Fla. 2d DCA 1968).

Mr. Lottes makes little effort on appeal to dispute the Grimeses' assertions that material facts remain in dispute with regard to their claims of fraud and negligence. Instead, he primarily argues that the issues presented by the Grimeses on appeal are not the same as those presented below. We disagree. We also disagree with Mr. Lottes' assertion that the Grimeses' claims cannot stand because Mrs. Grimes was present when Mr. Hall brought the Romanos to her house for the showing. Mrs. Grimes remembered that Mr. Hall brought a person or persons to see her house, but she did not recall who that person or persons were. As such, whether or not she relied upon Mr. Lottes' representation to her detriment remains, at a minimum, in dispute.

We review an order granting final summary judgment de novo, Damianakis v. Philip Morris USA Inc., 155 So.3d 453, 461 (Fla. 2d DCA 2015), and "[i]f the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, the summary judgment is improper," C & J Sapp Publ'g Co. v. Tandy Corp., 585 So.2d 290, 292 (Fla. 2d DCA 1991) (citing Young v. Johnson, 538 So.2d 1387, 1388 (Fla. 2d DCA 1989) ). See also Baker, 661 So.2d at 132 ("Even where the facts are undisputed, issues as to the interpretation of such facts may be such as to preclude summary judgment." (citing Franklin County v. Leisure Props., Ltd., 430 So.2d 475, 479 (Fla. 1st DCA 1983) )). Because the facts of this case are not "so crystallized" such that nothing remains but questions of law, we reverse and remand for further proceedings. See Ventana Condo. Ass'n, Inc. v. Chancey Design P'ship, Inc., 203 So.3d 175, 183 (Fla. 2d DCA 2016) (quoting McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011) ).

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.

      We note that both Mr. Hall's broker and Mrs. Grimes' broker, who is the CEO of Sotheby's, are of the impression that Mr. Hall is owed a commission.


text:
    Curtis BROWN, Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    No. 1D18-0084
    District Court of Appeal of Florida, First District.
    February 9, 2018
    Curtis Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   Per Curiam.

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

Ray, Bilbrey, and Winokur, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Alvin D. CLAYTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2671
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
   NORTHCUTT, Judge.

Alvin Clayton appeals the circuit court's summary denial of his motion for return of personal property. We reverse because the records attached to the circuit court's order do not conclusively refute the allegations made in Clayton's motion.

In his motion for return of personal property, Clayton alleged that the Polk County Sheriff's Office confiscated his property-$3500 in U.S. currency-which was neither the fruit of criminal activity nor being held as evidence. The circuit court denied Clayton's motion, finding that the record refuted his claim that the currency was not the fruit of criminal activity. The circuit court attached two documents in support of its findings: (1) a search warrant inventory form listing $3480 found in a desk at Clayton's brother's residence ; and (2) the State's notice of discovery which generically disclosed "money" and "copy of money" among its potential trial exhibits.

When a defendant seeks the return of personal property, he must file a facially sufficient motion which alleges that the property at issue was the defendant's personal property, was not the fruit of criminal activity, and was not being held as evidence. See Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004) (discussing the procedure for motions for return of personal property). If the trial court finds that the defendant's motion is facially sufficient, it may direct the State to respond by citing to applicable case law and attaching portions of the record which refute the defendant's allegations. Id. (citing Durain v. State, 765 So.2d 880, 880-81 (Fla. 2d DCA 2000) ). In the alternative, the trial court may summarily deny the motion-without ordering the State to respond-by attaching portions of the record that conclusively refute the claim. Almeda v. State, 959 So.2d 806, 809 (Fla. 2d DCA 2007).

In this case, the circuit court did not instruct the State to respond to Clayton's motion, and it did not conduct an evidentiary hearing; its denial rests solely on the two attached documents. While the record before us reflects that Clayton was a suspect in a drug-related shooting, there is no indication that the confiscated money was connected to that shooting. Likewise, Clayton's involvement with illicit drug sales does not prove that the confiscated money was the fruit of criminal activity. Finally, the State's notice of discovery indicating potential trial exhibits does not establish that the money is being held as evidence. Accordingly, we reverse the circuit court's order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and MORRIS, JJ., Concur.

      The search warrant application indicates that Clayton was a suspect in a drug-related homicide. The application alleged that Clayton's brother retrieved a spent shell casing from the scene.

      If the defendant's motion cannot be summarily denied, the trial court must hold an evidentiary hearing and make findings as to whether the property was confiscated by law enforcement, whether the property is still in law enforcement's possession, and whether the defendant is ultimately entitled to return of the property at issue. Bolden, 875 So.2d at 782 (citing Stone v. State, 630 So.2d 660, 660-61 (Fla. 2d DCA 1994) ).


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Rabih Yacomb YOUSSEF, Appellant, v. Issrra Osman ZAITOUNI, individually and on behalf of R.Y., A.Y., and S.Y., Minors, Appellees.
    Case No. 2D17-926
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Dineen Pashoukos Wasylik and Jared M. Krukar of DPW Legal, Tampa, for Appellant.
    William D. Slicker, St. Petersburg, for Appellees.
   ROTHSTEIN-YOUAKIM, Judge.

Rabih Youssef appeals the trial court's denial of his motion to vacate a temporary injunction against him for protection against domestic violence and to dismiss the petition for the injunction on the ground that the court lacked personal jurisdiction over him. We agree with Youssef that the court lacked personal jurisdiction over him when it granted the injunction, and we reverse.

Youssef, Issrra Osman Zaitouni, and their three minor children were residents of Ohio, where they had lived for at least five years before the couple's separation. On or about January 20, 2017, Zaitouni and the children moved to Florida. On February 1, 2017, in the Sixth Judicial Circuit Court in Pinellas County, Zaitouni petitioned for an injunction for protection against domestic violence. Youssef was served with process in Ohio and specially appeared in Florida through counsel, asserting that he had been an Ohio resident since "about 2003 or 2004," that he was not a Florida resident, and, therefore, that the trial court lacked personal jurisdiction over him. We agree.

Section 741.30(6), Florida Statutes (2016), provides:

(d) A temporary or final judgment on injunction for protection against domestic violence entered pursuant to this section shall, on its face, indicate that:
....
3. The court had jurisdiction over the parties and matter under the laws of Florida ....

Florida's long-arm jurisdiction statute, section 48.193, Florida Statutes (2016), lists the limited circumstances in which a person who is not a resident of this state may be subjected to the jurisdiction of this state's courts. These circumstances include, among other things, when that person carries on business in the state, commits a tortious act within the state, or has an interest in property with the state; circumstances specifically in connection with alimony, child support, and paternity proceedings; and when that person engages in substantial and not isolated activity within the state. See id.

In denying Youssef's motion to vacate the temporary injunction, the trial court identified three grounds on which it apparently based its exercise of personal jurisdiction: (1) that Youssef "has family living in Florida"; (2) that Youssef "has 'sent' [Zaitouni] and the children to Florida on approximately six occasions in the past"; and (3) that "[d]uring those times [Youssef] has traveled to Florida to visit his family." None of these facts, however, either alone or in the aggregate, supports personal jurisdiction over Youssef under section 48.193. The parties do not dispute that Youssef has no contacts with Florida except that his children and a brother live here. Although he has vacationed here six times over the course of several years, vacations, without more (such as the commission of a tort while here), do not give rise to personal jurisdiction. See Two Worlds United v. Zylstra, 46 So.3d 1175, 1178 (Fla. 2d DCA 2010) (holding that coming to Florida a few times a year to visit friends and family neither constitutes "substantial and not isolated activity" under section 48.193 nor establishes sufficient minimum contacts to meet due process requirements). And although telephonic, electronic, or written communications into Florida from an outside state can establish a basis for personal jurisdiction even absent physical presence if the alleged cause of action arises from the communications, Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 2002), the evidence established only a single telephonic communication from Youssef into Florida-a text message responding to Zaitouni's text message requesting a copy of her W-2 statement, in which Youssef asked Zaitouni to call him.

The trial court also invoked its "emergency jurisdiction over the minor children" as grounds for denying Youssef's motion. Presumably, the court was referring to temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, §§ 61.501-.542, Fla. Stat. (2016), which permits a court to exercise jurisdiction over a custody proceeding when "the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." § 61.517(1). This section is inapposite; this is not a custody dispute, and the Act does not establish an independent basis for the trial court to exercise personal jurisdiction over Youssef.

Finally, at the hearing, the trial court concluded, without elaboration, that there is a "safety exception" to the long-arm statute "as it relates to domestic violence injunctions." And, on appeal, Zaitouni invites us to find some basis other than section 48.193 for the court's exercise of personal jurisdiction over Youssef or by holding that personal jurisdiction over him was unnecessary. We must decline the invitation. Section 741.30(6)(d)(3) explicitly requires that the trial court have personal jurisdiction over the parties to the injunction, and section 48.193 defines the parameters by which a trial court may exercise personal jurisdiction over a party who is not a Florida resident. Although we understand Zaitouni's concern-and the trial court's protective inclination-we simply cannot subvert the statutory requirements or the due process interests that they implicate.

Because the record provides no support for the trial court's exercise of personal jurisdiction over Youssef under the applicable statutes, we reverse the order denying Youssef's motion and remand for vacatur of the temporary injunction and dismissal of the petition.

Reversed; remanded with directions.

KELLY and LUCAS, JJ., Concur.

      We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B), (a)(3)(C)(i).

      Nothing in this opinion, however, should be construed as a determination of the merits of Zaitouni's petition, and we note that if Zaitouni were to obtain an injunction in a state with jurisdiction over Youssef and the injunctive order otherwise comported with 18 U.S.C. § 2265(b) (Supp. 2016), the injunction would be accorded full faith and credit in Florida and fully enforceable. See id. § 2265(a) ; § 741.315.