text:
    John MCGRATH, Appellant, v. Robert MARTIN, Jr., et al., Appellees.
    No. 3D15-1821
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017
    The Corona Law Firm, P.A., and Ricardo M. Corona, for appellant.
    Johnson Law Group, and Jeffrey W. Johnson and Michael E. Wargo (Boca Raton), for appellees.
    Before SUAREZ, LOGUE, and LUCK, JJ.
   LOGUE, J.

John McGrath appeals an order dismissing his case for lack of prosecution under Florida Rules of Civil Procedure 1.420(e). McGrath sued Martin for personal injuries stemming from an accident. On March 5, 2015, Martin filed a notice of lack of prosecution asserting that no record activity had occurred in the prior ten months. The record, however, reflected activity had in fact occurred within the prior ten months, namely, plaintiff's co-counsel's motion to withdraw filed on October 17, 2014, and the trial court's order granting the motion to withdraw on November 17, 2014.

Nevertheless, the trial court dismissed the case on June 8, 2015. McGrath filed a timely motion for rehearing under Florida Rule of Civil Procedure 1.530 pointing out the legal error. Martin responded by arguing that Rule 1.530 did not apply to dismissals for lack of prosecution. The trial court agreed stating that "the 1.530 analysis doesn't apply because this was not a non-jury trial, nor was it a summary judgment." It denied the motion for rehearing.

On appeal, Martin continues to argue that Rule 1.530 does not apply to dismissals for lack of prosecution. We reject this argument. See, e.g., Renovaship, Inc. v. Quatremain, 208 So.3d 280, 284 (Fla. 3d DCA 2016) ("In the instant case, the order dismissing the action for lack of prosecution contained no reservation of jurisdiction, and the order became final when no motion for rehearing was served within the fifteen-day period following the order of dismissal. See Fla. R. Civ. P. 1.530(b)."); Beverly Enters.-Fla., Inc. v. Lane, 855 So.2d 1172 (Fla. 5th DCA 2003) (recognizing the trial court could rehear an order which was "dismissed without prejudice for failure to prosecute"); Cape Royal Realty, Inc. v. Kroll, 804 So.2d 605, 606 (Fla. 5th DCA 2002) (recognizing the trial court could use Rule 1.530 to rehear a "final order dismissing [plaintiff's] case for failure to prosecute"). See generally, De La Osa v. Wells Fargo Bank, N.A., 208 So.3d 259, 261 (Fla. 3d DCA 2016). We note neither party cited these cases to the trial court.

Reversed and remanded for further proceedings consistent with this opinion.

SUAREZ, J., concurs.

LUCK, J., concurs in result only.

LUCK, J., concurring in the result.

I agree with the conclusion reached by the majority opinion but I would get there in a different way. I would reverse the trial court's Rule 1.420(e) order of dismissal for lack of prosecution because there was record activity within the ten months preceding the notice of inactivity. See Bay Park Towers Condo. Ass'n, Inc. v. Triple M. Roofing Corp., 55 So.3d 591, 592 (Fla. 3d DCA 2010) (reversing Rule 1.420(e) lack of prosecution dismissal because "in the ten-month period that preceded the service date of the lack of prosecution notice, there were five docket entries which provided five reasons why the notice of no activity was a nullity"); see also HSBC Bank USA, N.A. v. Cochrane, 180 So.3d 1163, 1164 (Fla. 4th DCA 2015) (reversing Rule 1.420(e) dismissal because "appellant filed a motion to mediate, which constituted record activity, within the ten-month period immediately prior to the trial court's notice of lack of prosecution"). Because the trial court incorrectly found no record activity within ten months of the notice, and reversal of the dismissal order is appropriate for this reason, I wouldn't reach the issue of whether rehearing of the same order should have been granted under Rule 1.530.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Zanterrial Dejohn CARTER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1349
    District Court of Appeal of Florida, First District.
    Opinion filed November 30, 2017
    Andy Thomas, Public Defender, and Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox and Sharon S. Traxler, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Zanterrial Dejohn Carter was convicted of attempted first-degree premeditated or felony murder, burglary, and grand theft. Carter appeals only from his conviction for grand theft, claiming the trial court erred by denying his motion for judgment of acquittal because the evidence was insufficient to prove the value element of grand theft. We agree and reverse the grand theft conviction for the trial court to enter a judgment for petit theft.

At trial, the victim testified that his 42-inch flat screen television, 32-inch flat screen television, computer tablet, laptop computer, desktop computer, Xbox 360, surround sound system, and some pictures were stolen from his residence. The victim estimated that the laptop, purchased less than three months prior for "about $640," was worth "maybe about three, 400 bucks" and that the tablet was less than a year old and would have cost "about 250, $300" if purchased "brand new." The 42-inch television, desktop computer, and Xbox 360 were more than a decade old. No testimony established the age of the other items. Without elaborating, the victim testified that all the items together were worth "[b]allpark, three, $4000 easy." The State failed to present evidence of the condition or quality of any of the stolen items.

This Court reviews the denial of a motion for judgment of acquittal de novo "to determine whether competent, substantial evidence supports the elements of the crime." Chambers v. State , 200 So.3d 242, 245 (Fla. 1st DCA 2016). "A judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party." Criner v. State , 943 So.2d 224, 225 (Fla. 1st DCA 2006).

The value of the stolen property is an essential element of grand theft. S.M.M. v. State , 569 So.2d 1339, 1340 (Fla. 1st DCA 1990). To prove grand theft as charged in the information, the State was required to establish that the stolen property was "[v]alued at $300 or more." § 812.014(2)(c)1., Fla. Stat. (2015). Value is defined as "the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense." § 812.012(10)(a)1., Fla. Stat. (2015). "The value of tangible personal property may be proved with evidence of the original purchase price, together with the percentage or amount of depreciation since the property's purchase, its manner of use, and its condition and quality." Fritts v. State , 58 So.3d 430, 432 (Fla. 1st DCA 2011).

A "mere guess at, or uninformed estimate of" the value of stolen property is insufficient, absent other proof, to establish value beyond a reasonable doubt. Id. Testimony approximating the value of property, coupled with a lack of evidence of the property's condition at the time of the theft, fails to establish the value of the items taken. Sellers v. State , 838 So.2d 661, 663 (Fla. 1st DCA 2003).

In this case, the only evidence of the value of the stolen items was testimony providing ballpark estimates at best. The State elicited no testimony regarding the condition and quality of any of the items taken or their depreciation. Without more, the State failed to meet the value element of grand theft. Id. ; see also D.H. v. State , 864 So.2d 588, 589 (Fla. 2d DCA 2004) (rejecting the State's argument that "the description of the items stolen, by their sheer number and type, indicates a value over $300").

By failing to prove the value of the stolen items beyond a reasonable doubt, the evidence was insufficient to support a conviction greater than petit theft. See Chambers , 200 So.3d at 246. We therefore reverse the grand theft conviction with directions that the trial court enter an amended judgment for petit theft and that it resentence Carter accordingly. In all other respects, we affirm the convictions and sentences.

AFFIRMED in part, REVERSED in part, and REMANDED.

LEWIS, RAY, and JAY, JJ., CONCUR.


author: SALTER, J.

text:
    The BANK OF NEW YORK MELLON, etc., Appellant, v. Samuel C. BEAUFORT, et al., Appellees.
    No. 3D16-2604
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Marinosci Law Group, P.C. and Donna Evertz (Fort Lauderdale), for appellant.
    Evan M. Rosen (Fort Lauderdale), for appellees.
    Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.
   SALTER, J.

The Bank of New York Mellon ("BNYM") appeals a final order of involuntary dismissal in favor of defendants/borrowers Samuel Beaufort and Audrey Horne-Beaufort (the "Borrowers") in this residential mortgage foreclosure case. At the close of a non-jury trial, the circuit court dismissed the complaint based on BNYM's "failure to prove standing as of the time the case was filed." We reverse and remand.

Facts and Procedural History

In September 2013, as BNYM prepared to commence the foreclosure action in circuit court, an assistant vice president for Bank of America, N.A. ("BANA"), signed the possession certificate required by section 702.015(4), Florida Statutes (2013), and Florida Rule of Civil Procedure Form 1.944(a). The officer certified that BANA was BNYM's loan servicer and attorney in fact, and that BNYM was in possession of the original promissory note through BANA, "which possesses the note on behalf of [BNYM]." The verified complaint was filed in January 2014.

A copy of the promissory note in the principal amount of $228,000.00 (executed January 19, 2007) and companion mortgage were attached to the verified complaint. The copy of the note indicated that it was originally issued to Countrywide Home Loans, Inc., and had been endorsed in blank. After the denial of their motion to dismiss the complaint, the Borrowers filed an answer and affirmative defenses. The first affirmative defense, captioned "Standing," alleged that BNYM was not "1) the holder of the note, 2) a nonholder in possession who has the rights of a holder, or 3) a person not in possession who is entitled to enforce the instrument pursuant to Florida Statute § 673.3091 or Florida Statute § 673.4181(4), at the time the lawsuit was filed, therefore [BNYM] does not have standing to bring this action."

The case proceeded to non-jury trial in August 2016. BNYM presented a single witness, Ms. Braithwaite. Ms. Braithwaite testified that she worked for "Ditech," the servicing entity for the note and mortgage at issue in the foreclosure suit. She identified a power of attorney between Ditech and BNYM authorizing Ditech to act on behalf of BNYM, "including foreclosure," and the power of attorney was admitted into evidence.

Ms. Braithwaite testified that she had reviewed the business records pertaining to the loan, including copies of the promissory note, the mortgage, the payment history, the notice of defaults, the assignments of mortgage, and "the overall servicing file." Counsel for the Borrowers stipulated to the admission of the note and mortgage into evidence. After Ms. Braithwaite identified the default notice, proof of delivery, and payment history, and testified that these were business records maintained in the ordinary course of Ditech's business, counsel for the Borrowers interposed various objections, which were overruled, and then agreed to address those objections during cross-examination rather than a voir dire. As to the payment history, Ms. Braithwaite also testified that the payment records were made "at or near the time of occurrence by someone with knowledge," and that the payment history reflected "the same amount that's alleged in the complaint as due and owing." She testified that the amount due and sought in damages as of the date of trial was $268,137.34.

During further cross-examination by counsel for the Borrowers, Ms. Braithwaite testified that she started working with Ditech (known previously as "Green Tree Servicing") in June 2014, and Ditech started servicing the loan in December 2013. She testified that she worked remotely (in South Florida) but out of the Jacksonville, Florida, office of Ditech.

Ms. Braithwaite admitted that, although she had access to "input notes" into the payment history, she did not personally receive payments or input the information into the system. She also testified that data from the prior servicer was incorporated into Ditech's records through the "boarding" process. Ms. Braithwaite testified that "boarding" involves not just transferring data from one loan servicer to another, but also includes "the process of vetting that data to make sure it's accurate and reliable before it is then incorporated into the new servicer's business records."

During the extended cross examination, she described the process by which a composite of the loan servicing and information technology departments work with a prior servicer, review "the policies and procedures of the prior servicer to ensure that they're in conformity with the industry standards" and also in conformity with the acquiring servicer's policies and procedures. Once those steps have been completed, "the transfer of data starts to occur. Once we receive the information from the prior servicer, it's loaded into our test environment. From the test environment, it's reviewed for accuracy, reliability, the accounts are balanced to make sure the proper methodology is being used for amortization and things of that nature. And then once it successfully passes that process, the information is loaded into-incorporated into-becomes a part of Ditech's business records." She acknowledged that she herself was not in charge of boarding at Green Tree or Ditech.

The trial court recessed the non-jury trial to consider other cases. The trial reconvened in September 2016. The parties stipulated, and the Court agreed, that the parties would rest. The Borrowers then moved for involuntary dismissal on the grounds that BNYM "failed to establish its prima facie case by failing to prove standing at inception." After considering memoranda on the point, the trial court entered a final order granting the motion and involuntarily dismissing the complaint based on BNYM's purported failure to prove standing as of the time the case was filed. BNYM's appeal followed.

Analysis

A motion for directed verdict should only be granted when there is no reasonable evidence upon which the factfinder could render a verdict or judgment in favor of the non-moving party. Tylinski v. Klein Auto., Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012). Our review is de novo; for purposes of the motion, the Borrowers admit the truth of all facts in evidence and every reasonable conclusion or inference that can be drawn from the evidence favorable to BNYM. Nationstar Mortg., LLC v. Wing, 210 So.3d 216, 218 (Fla. 5th DCA 2017).

In the present case, BNYM's prima facie case established that BANA had possession of the note and mortgage as attorney in fact for BNYM at the time the certificate of possession was executed, Ditech took over the servicing three months after that, the promissory note was endorsed in blank by the original payee, and the original note (identical to the copy filed by BNYM at the inception of the lawsuit) was admitted into evidence. BNYM's witness, a representative of Ditech regarding the authenticity of the business records relating to the loan, testified to the manner in which the servicing was "boarded" by Ditech.

BNYM's witness also identified the default notice and loan payment records, testifying that those records agreed with the unpaid principal and interest set forth in the complaint. The defense stipulated that it would not offer evidence to prove otherwise.

Here, as in Bank of New York Mellon v. Johnson, 185 So.3d 594 (Fla. 5th DCA 2016), the involuntary dismissal must be reversed. The transfer of data and records, including possession of the note by BNYM, did not require testimony from a BANA witness. In Johnson, a successor servicer's witness testified regarding the procedures the successor servicer used to verify the accuracy of the prior servicer's records. That witness's testimony "established a sufficient foundation for the records' admissibility under section 90.803(6)(a)." Id. at 598.

BANA's execution of the certificate of possession for BNYM and verification of the complaint as attorney in fact for BNYM established that BNYM owned the original note and mortgage at the time the complaint was filed. Ms. Brathwaite's power of attorney for Ditech to act on behalf of BNYM was also admitted into evidence. That evidence, coupled with her testimony regarding the boarding procedure by which the loan records and data were transferred to Ditech and verified, established a sufficient predicate for the admission of the remaining records.

In a perfect world, the foreclosure plaintiff would call an employee of the previous note owner to testify as to the documents. However, this is neither practical nor necessary in every situation, despite Borrowers' argument to the contrary. See Le v. U.S. Bank, 165 So.3d 776 (Fla. 5th DCA May 22, 2015) (finding it was not error to allow a witness employed by bank's current loan servicer to testify about payment history information contained in records obtained from a prior servicer, where the witness's testimony met all the necessary foundational requirements for admission under section 90.803(6)).

Nationstar Mortg. v. Berdecia, 169 So.3d 209, 213-14 (Fla. 5th DCA 2015).

Moreover, the "Bank established standing because the original note and blank-endorsed allonge was properly authenticated and introduced into evidence at trial, which was identical to the copy of the note and blank-endorsed allonge attached to the complaint." Bank of New York Mellon on Behalf of Registered Holders of Alternative Loan Trust 2007-OA7 v. Heath, 219 So.3d 104, 106 (Fla. 4th DCA 2017).

Conclusion

BNYM established a prima facie case for foreclosure, including evidence that it had possession (through a servicer/attorney in fact) of the note and mortgage at the inception of the lawsuit. It also established the elements of default, subsequent non-payment, and computation of the amounts due. As stipulated by the parties, the Borrowers waived the right to proceed with a defense case, choosing instead to challenge, all-or-nothing, BNYM's standing. Accordingly, the case must be reversed and remanded for the trial court to vacate the order of involuntary dismissal and to enter the final judgment of foreclosure based on the competent, substantial evidence presented by BNYM.

Reversed and remanded, with directions, for further proceedings.

      That this was a "boilerplate" defense is disclosed by the fact that section 673.3091, Florida Statutes (2017), addresses lost, stolen, or destroyed instruments. Section 673.4181(4) deals with instruments (typically checks) paid by mistake and treated as dishonored. No such issues were raised by BNYM's complaint or the proof at trial. The original note and mortgage were filed as part of BNYM's case, were admitted into evidence by stipulation at trial, and were identical to the copies attached to the verified complaint.

      "Loan boarding, or the process by which a portfolio of loan and account data is transferred from one management system to another, is a critical concern when considering outsourcing to a third party." https://www.acenden.com/business-partners/services/loan-boarding (site last visited Nov. 22, 2017).

      In their answer, the Borrowers admitted "that there has been a default, but [Borrowers] are without knowledge as to the date of the last payment made."


author: EMAS, J.

text:
    Thaddeus Chaylon MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2374
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017. Rehearing Denied January 10, 2018
    Gyden Law Group and Henry G. Gyden (Tampa), for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
   EMAS, J.

Thaddeus Chaylon Martin appeals four orders of the trial court: 1) an order denying a motion to disqualify the original trial judge; 2) an order denying a motion for reconsideration of a prior ruling of the original trial judge; 3) an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 ; and 4) an order denying a motion for rehearing of the order denying the motion for postconviction relief.

As to the order denying Martin's motion to disqualify, we find no error. Before Martin even filed his motion to disqualify, the original trial judge (who was the subject of the motion to disqualify) was already reassigned to the juvenile division, and therefore was no longer presiding over Martin's case. The newly-assigned judge correctly denied Martin's motion both on its merits and in light of the reassignment of the original trial judge. See Neal v. State, 929 So.2d 59 (Fla. 5th DCA 2006) (holding that motion to disqualify postconviction judge from ruling on defendant's motion for rehearing of his motion for postconviction relief was rendered moot by that judge's reassignment to another division).

We also find no error in the order denying Martin's motion for reconsideration of the prior ruling of the original trial judge, given that the motion to disqualify was denied on its merits. See Fla. R. Jud. Admin. 2.330(h) (providing that prior rulings "by a disqualified judge may be reconsidered by a successor judge upon a timely-filed motion for reconsideration") (emphasis added).

As to Martin's final claims, we affirm the trial court's order denying his motion for postconviction relief (rendered by the original trial judge) and order denying rehearing (rendered by a second trial judge), which motions were premised on a claim of ineffective assistance of trial counsel. Martin claims that, at his first probation violation hearing in 2013, his counsel provided ineffective assistance by failing to advise Martin that he had not been lawfully placed on probation on Count Two during his original plea and sentence in 2013. Martin asserts that, had he been so advised, he would not have admitted to the subsequent violation of probation in 2014, and instead would have insisted on proceeding to a probation violation hearing, where it would have been established he was in fact not on probation for Count Two (and therefore could not have "violated" his probation).

This claim fails because its premise (i.e., that he was never placed on probation on Count Two) is simply incorrect. The record-including the signed written plea agreement, the probation order, and the oral pronouncement as set forth in the transcript of the plea and sentencing hearing-establishes that Martin pleaded guilty to a two-count information, pursuant to which he would be placed on a concurrent, one-year term of probation as to each count of the information. To the extent that the judgment and sentence for Count Two omitted the one-year probationary term, or otherwise conflicted with the oral pronouncement of the trial court at the original sentencing, such an error is subject to correction by the trial court, as the oral pronouncement controls. See Ashley v. State, 850 So.2d 1265 (Fla. 2003) (oral pronouncement controls over written document). Where a conflict exists between the written sentence and the oral pronouncement, the proper remedy is for the trial court to clarify or correct the sentence, consistent with the oral pronouncement. Chapman v. State, 14 So.3d 273 (Fla. 5th DCA 2009). Such a correction is cognizable as a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a)(1), which provides that "[a] court may at any time correct an illegal sentence imposed by it ...." See also Williams v. State, 957 So.2d 600 (Fla. 2007).

In the instant case, the trial court properly entered an order correcting the 2013 sentence to ensure that the written judgment and sentence conformed to the oral pronouncement, which included a probationary term for Count Two. Martin's counsel "cannot be deemed ineffective for failing to raise a meritless claim." Peede v. State, 955 So.2d 480, 502-03 (Fla. 2007). Had Martin's counsel raised this issue prior to or at the time of the probation violation hearing, the proper remedy would have been for the trial court to enter a corrected judgment and sentence nunc pro tunc, properly reflecting the agreed-upon and orally pronounced sentence. Therefore, any inconsistency between the oral pronouncement and the written judgment and sentence (or the trial court's correction of same) could not have affected the outcome of the proceeding because there is no reasonable probability that, but for this error or omission, Martin would not have entered a plea to the violation of probation and instead would have insisted on proceeding to a violation of probation hearing. See Grosvenor v. State, 874 So.2d 1176, 1181 (Fla. 2004) (establishing two-pronged test for assessing claims of ineffective assistance of counsel relating to guilty pleas: the first prong is identical to the deficient performance prong in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; the second prong requires that the defendant demonstrate "a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial").

Affirmed.

      Although not raised by Martin, we have considered the applicability of our previous decision in Barber v. Mackenzie, 562 So.2d 755 (Fla. 3d DCA 1990), and find it distinguishable. In Barber, petitioner filed a motion to disqualify the trial judge. After the motion was filed, the trial judge was transferred to another division, and the successor judge denied the motion to disqualify. On a petition for writ of prohibition, we held that the motion to disqualify was not rendered moot by the reassignment of the trial judge because, had the motion been granted (and in Barber we determined that it should have been granted), the successor judge could have reconsidered the original judge's previous orders pursuant to rule 2.330(h). In the instant case, and upon our de novo review, we determine that the motion to disqualify was properly denied.

      The 2013 written plea agreement provided that, in exchange for Martin's plea of guilty to Count Two (charging aggravated battery with great bodily harm), the trial court would adjudicate Martin guilty and that "the defendant shall be placed on reporting probation, concurrent with Count 1, and have the following special conditions. ..." Martin expressly acknowledged in the written plea agreement that he entered the plea freely and voluntarily, after having consulted with his attorney, and that Martin understood that "failure to comply with any terms or conditions within this agreement constitutes a violation of probation and subjects me to be sentenced to the statutory maximum penalties provided by law for the crimes for which I am now pleading guilty."
      Additionally, the trial court entered a probation order, also signed by Martin, which reflected that a probationary sentence was imposed on both counts of the information, and that order expressly incorporated the written plea agreement. Finally, the transcript of the plea colloquy establishes that the trial court orally pronounced that Martin was to be placed on probation for Counts One and Two for a concurrent period of one year, and Martin acknowledged this under oath.


text:
    TOWER HILL SIGNATURE INSURANCE COMPANY, Appellant/Cross-Appellee, v. Cesar JAVELLANA and Sandra Javellana, Appellees/Cross-Appellants.
    Nos. 3D16-2526 & 3D16-2492
    District Court of Appeal of Florida, Third District.
    Opinion filed December 13, 2017
    Traub Lieberman Straus and Shrewsberry and Ashley R. Kellgren and Scot E. Samis (St. Petersburg), for appellant/cross-appellee.
    Barnard Law Offices and Maxwell S. Barnard and Andrew C. Barnard, Miami, for appellees/cross-appellants.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

In these consolidated appeals, each party seeks review of an order denying their respective motions for attorney's fees. Cesar and Sandra Javellana ("the Javellanas"), plaintiffs below, appeal the denial of their motion for attorney's fees and costs pursuant to section 627.428, Florida Statutes (2016). Tower Hill Signature Insurance Company ("Tower Hill"), defendant below, appeals the denial of its motion for attorney's fees under the offer of judgment statute, section 768.79, Florida Statutes (2016).

We affirm the trial court's denial of the Javellanas' motion for attorney's fees and costs because there was no "rendition of a judgment" in favor of the Javellanas on their claims. However, we reverse the trial court's denial of Tower Hill's motion for attorney's fees, because this was a "civil action for damages" under section 768.79, and the "true relief" sought by the Javellanas was an award of monetary damages.

PROCEDURAL HISTORY

The Javellanas sustained damage to their home from water intrusion, and initiated a claim with their homeowner's insurer, Tower Hill. Tower Hill investigated the claim, which included an inspection by its independent claims adjuster, and determined the claim was covered under the policy. Based on the adjuster's evaluation and estimate, Tower Hill made an initial payment to the Javellanas in an amount that Tower Hill characterized as the "actual cash value" of the loss, and invited the Javellanas to submit supplemental claims should they discover additional damage. Although Tower Hill later made some additional payments, which the Javellanas accepted, they nevertheless contended that Tower Hill grossly underpaid the claim, and therefore, breached the terms of the insurance policy.

The Javellanas sued Tower Hill, and the operative complaint contained three counts: breach of contract (Count I); declaratory judgment related to the wear and tear/marring exclusion in the policy (Count II); and declaratory judgment, seeking to have the court declare that Tower Hill may not unilaterally determine actual cash value but that actual cash value must be determined either as an issue of fact or by agreement of the insured and insurer (Count III).

While the litigation was pending, Tower Hill served an offer of judgment on each of the plaintiffs, pursuant to section 768.79, Florida Statutes (2016). These offers of judgment were not accepted by the Javellanas, and the case proceeded to a jury trial.

After the Javellanas rested their case, Tower Hill moved for directed verdict. Tower Hill argued that the Javellanas failed, as a matter of law, to prove a breach by Tower Hill, because the evidence showed that Tower Hill performed its duties under the policy by paying the amount of the independent adjuster's repair estimate at actual cash value and advising the Javellanas to submit supplemental claims for any additional damage. The court denied the motion, concluding that it was for the jury to determine, as an issue of fact related to the breach of contract, whether or not Tower Hill failed to pay the actual cash value of the loss.

At the conclusion of the trial, the jury received the verdict form which asked the following two questions:

1. Did Plaintiffs prove by the greater weight of the evidence that Tower Hill Signature Insurance Company failed to initially pay at least the actual cash value, less any applicable deductible, to Cesar & Sandra Javellana for damage(s) caused by a drain line failure pursuant to the terms of the policy?
If your answer to Question 1 is "Yes", please proceed with answering question 2. If on the other hand, your answer to Question 1 is "No", your verdict is for the Defendant and you should sign and date the verdict form.
2. What is the total additional amount owed to Cesar & Sandra Javellana for damage caused by Tower Hill Signature Insurance Company's failure to pay ACV?

The jury answered "No" to Question 1, finding that the Javellanas did not prove that Tower Hill failed to initially pay the Javellanas at least the actual cash value for damage caused by the drain line failure. The trial court thereafter entered final judgment in favor of Tower Hill.

Tower Hill later moved for attorney's fees, pursuant to section 768.79 and its unaccepted offers of judgment.

The Javellanas also moved for fees and costs, asserting, inter alia , that because the trial court "effectively" ruled in their favor in denying Tower Hill's directed verdict motion on the declaratory judgment count, they were entitled to recover fees and costs under section 627.428(1).

The court held a hearing on both motions. As to Tower Hill's motion, the court determined that Tower Hill was not entitled to attorney's fees under section 768.79, pursuant to Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013), because the Javellanas' complaint sought both equitable relief and money damages. The court also denied the Javellanas' motion for attorney's fees and costs, finding there was no judgment in their favor, and therefore, no entitlement to fees and costs under section 627.428(1). Both parties appealed the court's orders.

ANALYSIS

1. Javellanas' Motion for Attorney's Fees and Costs

As for the Javellanas' appeal of the order denying their motion for fees pursuant to section 627.428(1), upon our de novo review, Do v. GEICO General Insurance Co., 137 So.3d 1039, 1042 (Fla. 3d DCA 2014), we affirm the court's order without further discussion, because the Javellanas did not obtain a judgment in their favor. See § 627.428(1), Fla. Stat. (2016) (providing for award of attorney's fees "[u]pon the rendition of a judgment or decree" against an insurer and in favor of the insured); Magdalena v. Toyota Motor Corp., 3D16-2322, --- So.3d ----, 2017 WL 5760268 (Fla. 3d DCA November 29, 2017) ; Do, 137 So.3d at 1044-45.

2. Tower Hill's Motion for Attorney's Fees

We likewise review de novo the trial court's order denying Tower Hill's motion for attorney's fees, which determined that the offers of judgment were not valid. Campbell v. Goldman, 959 So.2d 223 (Fla. 2007). We hold that this case was a civil action for damages, and therefore, Tower Hill's offers of judgment were valid under section 768.79(1), the offer of judgment statute, which provides:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award.
(Emphasis added.)

We begin with the well-settled proposition that a party is not entitled to fees under section 768.79 where the plaintiff seeks only nonmonetary relief. MYD Marine Distrib., Inc. v. Int'l Paint Ltd., 187 So.3d 1285 (Fla. 4th DCA 2016) ; National Indem. Co. v. Consol. Ins. Servs., 778 So.2d 404 (Fla. 4th DCA 2001). Further, the Florida Supreme Court has made it clear that " section 768.79 does not apply to cases that seek both equitable relief and damages." Diamond Aircraft, 107 So.3d at 372.

The Javellanas argued below, and the trial court agreed, that, pursuant to Diamond Aircraft, because their complaint sought both equitable relief and money damages, Tower Hill's offers of judgment were not valid, and therefore, Tower Hill was not entitled to an award of attorney's fees under section 768.79.

Tower Hill contends that there is an exception to Diamond Aircraft 's general holding in cases where, as here, the "true relief" sought is monetary damages. The trial court rejected this argument, noting Diamond Aircraft 's pronouncement that "there is no basis to establish an exception for instances in which the equitable claim lacks serious merit." Id. at 374. We agree with the trial court that Diamond Aircraft so held, but what Diamond Aircraft did not hold is that a plaintiff can avoid an otherwise valid offer of judgment by merely adding a declaratory judgment count to a cause of action in which the true relief sought is money damages. Indeed, the Court in Diamond Aircraft focused its discussion and analysis on the opening phrase of the offer of judgment statute, which provides that "[i]n any action for damages ... if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees ...." (Emphasis added). In construing the nature and scope of this language, the court discussed and cited approvingly to two decisions from the Fourth District Court of Appeal, both of which are relevant to the instant case: DiPompeo Construction Corp. v. Kimmel & Associates, Inc., 916 So.2d 17 (Fla. 4th DCA 2005) and Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998 (Fla. 4th DCA 1996).

In DiPompeo, Kimmel, a professional recruiting firm, invoiced DiPompeo $20,000 for commission earned in providing executive search services to DiPompeo, following DiPompeo's hiring of an employee. DiPompeo, disputing that it owed Kimmel a commission, filed a complaint seeking a declaratory judgment that, because it had no contract with Kimmel, DiPompeo did not owe Kimmel any money. Kimmel then filed a counterclaim, seeking to recover its commission on theories of breach of contract and unjust enrichment.

The trial court determined that a contract did exist between DiPompeo and Kimmel, but that DiPompeo's hiring of the employee was independent of the contract, since it was not a result of Kimmel's efforts. Thus, DiPompeo lost on its declaratory judgment claim, and Kimmel lost on its counterclaim for breach of contract and quantum meruit.

DiPompeo filed a motion for attorney's fees based upon an offer of judgment served upon, and not accepted by, Kimmel. The trial court denied the motion, ruling that DiPompeo's declaratory judgment action was not a "civil action for damages" and therefore, the offer of judgment was not valid under section 768.79.

The Fourth District reversed, holding that "[i]n construing the term 'action for damages,' this court has looked behind the procedural vehicle used to bring a lawsuit and focused on whether the 'real issue' in the case is one for damages." DiPompeo, 916 So.2d at 18 (quoting National Indem. Co., 778 So.2d at 408 ). Our sister court found that the offer of judgment was valid, because the "real issue" in the case was the entitlement to money damages, and the Florida Supreme Court, in Diamond Aircraft, approved DiPompeo's conclusion that "the plaintiff's claim was in actuality an action for damages because the real issue before the court was whether the plaintiff owed money to the defendant." Diamond Aircraft, 107 So.3d at 373.

Nelson, 677 So.2d at 998, involved the unsuccessful sale of a yacht, and the seller's retention of the buyer's escrowed deposit. The would-be buyer (Nelson) filed an action seeking a declaratory judgment that the seller (Marine Group) was not entitled to retain the deposit as liquidated damages, and that the buyer was entitled to the return of the deposit. The seller counterclaimed with an action for damages (i.e., seeking to retain the buyer's escrowed deposit as liquidated damages). Ultimately, the trial court found that the buyer breached the contract and seller was entitled to retain the deposit. Seller sought attorney's fees based upon an offer of judgment. Buyer contended the offer was invalid because the case involved an action seeking both monetary and nonmonetary damages. The trial court found the offer of judgment valid, and the Fourth District affirmed this determination: "As evidenced both by the real issues in dispute and the counterclaim which clearly framed this case as an action for damages, the offer of judgment statute properly applied." Id. at 999.

This court has followed the Nelson/ DiPompeo analysis approved in Diamond Aircraft . See Faith Freight Forwarding Corp. v. Anias, 206 So.3d 753, 755 (Fla. 3d DCA 2016) (reversing trial court's order invalidating offer of judgment and, citing DiPompeo , holding that such an offer is permitted "where the plaintiff's claim was an action for damages because the 'real issue' before the court was whether the plaintiff was owed the compensation."). Other courts have followed this reasoning as well. See, e.g., Polk Cty. v. Highlands-in-the-Woods, LLC, 227 So.3d 161 (Fla. 2d DCA 2017) (recognizing that "[w]hen determining whether a complaint alleges an action for damages or one for equitable relief, Florida courts 'look to whether the 'real issue' is one for damages' or equitable relief"); Yacht Club on the Intracoastal Condo. Ass'n, Inc., 599 Fed. Appx. 875, 883 (11th Cir. 2015) (noting that "[i]t is clear that under Diamond Aircraft , we must reject The Yacht Club's argument that attorney's fees under § 768.79 are not available in any case in which a declaratory judgment accompanies a claim for damages. While the Florida Supreme Court found that cases seeking both monetary and non-monetary relief are not eligible for attorney's fees under § 768.79, by citation to Nelson and DiPompeo Construction , it reiterated that a court should look behind the procedural vehicle used in a complaint to discern what true relief is sought").

Therefore, reading Diamond Aircraft in tandem with Nelson and DiPompeo , we conclude that this case is an "action for damages," within the meaning of section 768.79(1), because it is plain that the true relief sought by the Javellanas was money damages for a breach of contract, rather than equitable relief. Accordingly, Tower Hill's offer of judgment was not invalidated by the Javellanas' inclusion of declaratory judgment counts in a cause of action that, in actuality, sought money damages.

This is not to say that the count for declaratory relief-i.e., seeking a declaration that Tower Hill did not, as a matter of law, comply with the terms of the policy merely by unilaterally determining actual cash value and paying that amount-lacked serious merit, or was not at issue in this case. Nonetheless, that question, raised in a count for declaratory relief, was subsumed within the true relief sought, in this case: whether Tower Hill breached the policy by failing to pay actual cash value and if so, the amount of damages for the breach. If Tower Hill could unilaterally determine the actual cash value of the claim, and, as a matter of law, comply with the policy terms by paying that unilaterally-determined amount, then the Javellanas could not prove a breach, and could not, therefore, obtain damages.

On the other hand, by obtaining a favorable "outcome" on its declaratory count-that is, a determination that Tower Hill did not, as a matter of law, comply with the terms of the policy merely by unilaterally determining actual cash value and paying that amount-the Javellanas did not and could not obtain the "true relief" they sought in this action. Instead, a favorable outcome on that declaratory count simply established that the question of whether Tower Hill paid actual cash value in compliance with the terms of the policy was a question of fact for the jury, but nevertheless remained an inextricable component of the breach of contract claim. The Javellanas' decision to extract that discrete question from its breach of contract claim, and present it as a standalone count for declaratory relief, does not alter the fact that the true relief sought in the case was money damages for an alleged breach of contract.

Thus, the trial court erred in its conclusion that, because the Javellanas' action sought both equitable relief and money damages, Tower Hill's offers of judgment were invalid under section 768.79(1).

We therefore affirm the trial court's order denying the Javellanas' motion for attorney's fees; reverse the trial court's order denying Tower Hill's motion for attorney's fees; and remand this cause for proceedings consistent herewith.

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

      Tower Hill was awarded its costs by the court as the prevailing party. There is no issue raised about the cost award in this appeal.

      The policy provided in pertinent part: "We [Tower Hill] will initially pay at least the actual cash value of the insured loss, less any applicable deductible. We shall pay any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred."

      The record establishes that additional sums were paid, following the initial payment, for water and mold remediation. The total paid by Tower Hill to the Javellanas was $45,149, including the deductible, and the Javellanas allege an additional $66,800 is needed to repair the damage.

      On the first day of trial, the trial court determined that, as to Count II (seeking declaratory relief related to the wear and tear/marring exclusion), there was no case or controversy, and thus ruled in favor of Tower Hill.

      The Javellanas have raised a number of additional bases for invalidating Tower Hill's offers of judgment. However, the trial court did not reach these, instead basing its order of denial on the issue addressed in this opinion. We decline to reach the merits of these additional bases, leaving it to the trial court, on remand and if appropriate, to address them in the first instance.


text:
    Delroy JACKSON, Appellant, v. KLEEN 1, LLC, Appellee.
    No. 3D16-2790
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017 Rehearing Denied January 10, 2018
    Remer & Georges-Pierre, Jason S. Remer and Tyler A. Stull, for appellant.
    Michael A. Pancier (Pembroke Pines), for appellee.
    Before ROTHENBERG, C.J., and LAGOA and EMAS, JJ.
   EMAS, J.

Delroy Jackson, the plaintiff below, appeals the final judgment rendered in accordance with the motion for directed verdict filed by his former employer, Kleen 1, LLC, the defendant below. For the reasons that follow, we affirm in part and reverse in part.

BACKGROUND AND PROCEDURAL HISTORY

Jackson was employed by Kleen 1 for less than one week. A few days into his employment, Jackson alleges that his supervisor made several discriminatory racial comments toward him, and when Jackson later reported this behavior to Kleen 1's vice president, he was fired. Jackson also contends that while working for Kleen 1, he was given a disproportionate amount of duties compared to other non-black or non-Jamaican employees.

Jackson filed a lawsuit against Kleen 1, alleging three separate violations of Florida's Civil Rights Act: racial discrimination (Count I); national origin discrimination (Count II); and retaliatory discharge (Count III). All three claims were tried before a jury. Jackson sought damages for lost wages and for emotional pain and mental anguish.

At trial, Jackson testified that when his supervisor made the discriminatory racial comments toward him he felt "very bad" and "angry, mad." Jackson introduced no evidence or testimony as to how he felt after Kleen 1 terminated him some three days after the discriminatory racial comments were made.

At the close of Jackson's case, Kleen 1 moved for a directed verdict, asserting Jackson had failed to present sufficient evidence to establish a prima facie case. The court reserved ruling on the motion. Thereafter, the jury returned a verdict, finding in favor of Kleen 1 on the racial and national origin discrimination claims (Counts I and II), but found in favor of Jackson on his retaliatory discharge claim (Count III). The jury awarded no damages to Jackson for lost wages, but awarded him $8,500 for emotional pain and mental anguish.

Kleen 1 renewed its motion for directed verdict as to the retaliatory discharge claim, asserting Jackson's testimony was untrustworthy and uncorroborated. Further, Kleen 1 contended there was no evidence to support an award of $8,500 for emotional pain or mental anguish, especially given that the sole evidence was Jackson's testimony that he "felt bad" when the discriminatory racial comments were made.

After a hearing, the trial court agreed that the jury found a retaliatory purpose behind Jackson's termination, but determined there was insufficient evidence to support the damages award for emotional pain and mental anguish. Jackson's counsel agreed that there was not an "abundance" of evidence, but that his client did testify that he felt bad, and argued this was sufficient to support the $8,500 award. Nonetheless, the trial court granted Kleen 1's motion to enter judgment in accordance with its prior motion for directed verdict, and entered final judgment in favor of Kleen 1. This appeal followed.

DISCUSSION AND ANALYSIS

On appeal, Jackson contends that the trial court erred in two respects: (1) by directing a verdict on the retaliatory discharge claim where there was evidence to support the jury's determination in favor of Jackson on that claim; and (2) by finding that there was insufficient evidence to support an award of damages for emotional pain and mental anguish.

Upon our de novo review, Frieri v. Capital Investment Services, Inc., 194 So.3d 451, 455 (Fla. 2016), we agree with Jackson that the trial court erred in directing a verdict on the retaliatory discharge claim, and reverse those portions of the order and final judgment granting directed verdict.

Section 760.10(7), Florida Statutes (2016) provides:

It is an unlawful employment practice for an employer ... to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.

In order to establish a prima facie claim of retaliatory discharge, a plaintiff "must demonstrate the following elements: (1) a statutorily protected expression; (2) an adverse employment action; and (3) a causal connection between the participation in the protected expression and the adverse action." Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004). Viewing the evidence in a light most favorable to Jackson, as we must, id., we conclude that there was sufficient evidence to support the jury's finding that Jackson proved his retaliatory discharge claim.

However, we hold that the trial court properly determined there was insufficient evidence to support the jury's damages award of $8,500, and conclude that the evidence was insufficient to support any award of damages for emotional pain or mental anguish.

"Any award for emotional injury greater than nominal damages must be supported by evidence of the character and severity of the injury to the plaintiff's emotional well-being." Salinas v. O'Neill, 286 F.3d 827, 830 (5th Cir. 2002). A "failure to establish 'actual injury' with sufficient evidence will result in the award of only nominal damages." Brady v. Fort Bend Cty., 145 F.3d 691, 718 (5th Cir. 1998) (also noting that " 'hurt feelings, anger and frustration are a part of life,' and [are] not the types of harm that could support a mental anguish award." (quoting Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 940 (5th Cir. 1996) )). See also, Akouri v. State of Fla., Dep't of Transp., 408 F.3d 1338, 1345 (11th Cir. 2005) (reiterating that "although a plaintiff's testimony, standing alone, can support an award of compensatory damages for emotional distress based on a constitutional violation, 'the testimony must establish that the plaintiff suffered demonstrable emotional distress, which must be sufficiently articulated; neither conclusory statements that the plaintiff suffered emotional distress nor the mere fact that a constitutional violation occurred supports an award for compensatory damages' ") (quoting Price v. City of Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996) ).

Further, and independently, the sole testimony at trial on this issue-that Jackson felt "very bad," "angry," and "mad"-related only to the discriminatory comments (i.e., Counts I and II, for which the jury found in favor of Kleen 1). Jackson offered no evidence in support of any emotional damages he allegedly suffered as a result of the retaliatory discharge.

CONCLUSION

Accordingly, we reverse in part the trial court's order granting motion for directed verdict, and final judgment entered thereon, with directions to enter an amended final judgment in accordance with the jury's verdict on Count III-that Jackson proved that he engaged in protected activity and that Kleen 1 terminated Jackson's employment because of his protected activity. We affirm the trial court's order granting motion for directed verdict, and final judgment, insofar as it determined that the evidence at trial failed to support the jury's award of damages.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for the trial court to enter an amended order granting in part and denying in part the motion for directed verdict and to render an amended final judgment consistent with that amended order and with this opinion.

      In his complaint, Jackson describes himself as "a black male of Jamaican origin."

      Chapter 760, § 760.01 et seq., Florida Statutes (2016).

      The elements for an employment retaliation claim under Florida law is the same as those for claims brought under federal law. Juback v. Michaels Stores, Inc., 143 F.Supp.3d 1195 (M.D. Fla. 2015). Thus, "decisions construing Title VII are applicable when considering claims of discrimination under the Florida Civil Rights Act." Jiles v. United Parcel Service, Inc., 360 Fed. Appx. 61, 63 (11th Cir. 2010) (quoting Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) ).

      Although Jackson did assert that he lost wages as a result of the retaliatory discharge, the jury awarded no damages to Jackson in that regard.


author: SUAREZ, J.

text:
    Florentino FALCON, Appellant, v. MANGO HILL CONDOMINIUM ASSOCIATION NO. 2, INC., et al., Appellees.
    No. 3D17-1029
    District Court of Appeal of Florida, Third District.
    Opinion filed December 27, 2017
    David Low & Associates, P.A. and Amanda Sidman (Ft. Lauderdale), for appellant.
    Nancy C. Wear, for appellees.
    Before SUAREZ, FERNANDEZ and LINDSEY, JJ.
   SUAREZ, J.

Florentino Falcon appeals from a final order dismissing his first amended complaint with prejudice. Because we find that the complaint asserted a viable claim and that dismissal was not appropriate to resolve the issue of whether Falcon's back patio was a "limited common element" pursuant to the Declaration of Condominium, we reverse and remand for further proceedings. We make no findings as to the nature of the patio or the parties' rights and responsibilities under the Declaration.

Reversed and remanded.


author: SALARIO, Judge.

text:
    Santos Andres MENDEZ-DOMINGO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3430
    District Court of Appeal of Florida, Second District.
    Opinion filed December 27, 2017
    Santos Andres Mendez-Domingo, pro se.
   SALARIO, Judge.

Santos Mendez-Domingo appeals from an order summarily denying his motion under Florida Rule of Criminal Procedure 3.850 that alleged that his counsel in the trial court labored under a conflict of interest. We reverse and remand for the postconviction court to give him an opportunity to file an amended motion that makes sufficient allegations of an actual conflict that adversely affected his representation.

Mr. Mendez-Domingo pleaded no contest to two counts of attempted capital sexual battery, and the trial court sentenced him to thirty years' prison on the first count to be followed by thirty years' probation on the second. In his rule 3.850 motion, he asserted a single claim of ineffective assistance of counsel based on a conflict of interest. In particular, he alleged that his counsel failed to tell the trial court that, in addition to representing Mr. Mendez-Domingo, counsel also represented another man in a separate case who Mr. Mendez-Domingo said confessed to him that he had committed the sexual batteries at issue. Mr. Mendez-Domingo wanted his counsel to negotiate a lenient sentence in exchange for his testimony against the man who confessed. He asserted that his counsel's failure to tell the court about the conflict of interest denied him due process and the effective assistance of counsel.

The postconviction court summarily denied the motion. It concluded that the Office of the Public Defender originally was assigned to represent both Mr. Mendez-Domingo and the man who confessed to Mr. Mendez-Domingo but later withdrew from the other man's case based on a conflict of interest. The postconviction court attached to its order the public defender's motion to withdraw from that case and the order granting that motion. The court also found that Mr. Mendez-Domingo then hired an attorney and that the Office of Criminal Conflict Counsel was appointed for the other man. Mr. Mendez-Domingo thereafter filed a motion for rehearing, which the postconviction court denied.

The postconviction court erred by attaching records from the other man's case in support of its order summarily denying Mr. Mendez-Domingo's motion. Rule 3.850(f) allows a postconviction court to summarily deny a motion if the court record conclusively refutes the movant's claims. The rule defines the "court record" as "files and records in the case" and specifies that "[t]he files and records in the case are the documents and exhibits previously filed in the case and those portions of the other proceedings in the case that can be transcribed." Fla. R. Crim. P. 3.850(f)(4). Documents other than those specified in the rule cannot be used to summarily deny a rule 3.850 motion. See Forte v. State, 189 So.3d 1043, 1044 (Fla. 2d DCA 2016) ("Although the postconviction court attached the transcript from the codefendant's hearing to the order denying Forte's claims, that transcript was not part of Forte's record and the postconviction court erred in relying on it to deny the claims."). Mr. Mendez-Domingo's counsel's notice of appearance in Mr. Mendez-Domingo's case, the sole portion of Mr. Mendez-Domingo's record that the postconviction court attached to its order, does not conclusively refute Mr. Mendez-Domingo's assertion of a conflict of interest.

That said, Mr. Mendez-Domingo did fail to sufficiently plead an ineffective assistance claim based on a lawyer's alleged conflict of interest.

[I]n order to establish an ineffectiveness claim premised on an alleged conflict of interest the defendant must "establish that an actual conflict of interest adversely affected his lawyer's performance." A lawyer suffers from an actual conflict of interest when he or she "actively represent[s] conflicting interests." To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative or merely hypothetical conflict is "insufficient to impugn a criminal conviction."

Hunter v. State, 817 So.2d 786, 791-92 (Fla. 2002) (second alteration in original) (citations omitted) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ). Thus, to plead a facially sufficient ineffectiveness claim based on a conflict, a postconviction movant must allege sufficient facts to show both an actual conflict of interest and that the actual conflict adversely affected counsel's representation of the movant. See, e.g., Cole v. State, 35 So.3d 173, 174 (Fla. 2d DCA 2010) (finding claim legally insufficient where movant "did not allege the existence of an actual conflict or that his interests were compromised").

Although Mr. Mendez-Domingo's rule 3.850 motion alleged that his counsel at some point represented conflicting interests, it failed to allege facts indicating that the conflict adversely affected counsel's representation of Mr. Mendez-Domingo. The motion did not identify who had the alleged conflict or at what point in time that lawyer represented both Mr. Mendez-Domingo and the man who allegedly confessed-i.e., whether the dual representation happened at any time material to Mr. Mendez-Domingo's claim. And although it alleged that counsel failed to advise the court of the conflict, the motion did not say that counsel failed to tell Mr. Mendez-Domingo about the problem, did not say that Mr. Mendez-Domingo declined to waive the conflict, and did not say that counsel failed to seek the plea agreement Mr. Mendez-Domingo allegedly wanted.

Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.

Cuyler, 446 U.S. at 346-47, 100 S.Ct. 1708 (footnote omitted). Mr. Mendez-Domingo's claim is insufficiently pleaded. See Spera v. State, 971 So.2d 754, 758 (Fla. 2007) (explaining that a facially sufficient rule 3.850 motion "sets out a cognizable claim for relief based upon the legal and factual grounds asserted" (quoting Jacobs v. State, 880 So.2d 548, 550 (Fla. 2004) )).

Where, as here, a rule 3.850 motion is insufficiently pleaded, the proper course is to give the movant sixty days to plead sufficiently. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion."). Accordingly, we reverse the postconviction court's order and remand with directions to strike Mr. Mendez-Domingo's motion and grant him sixty days to file a sufficiently pleaded amended motion. See Cole, 35 So.3d at 175 ; Howard v. State, 17 So.3d 774, 778 (Fla. 2d DCA 2009).

Reversed and remanded with directions.

NORTHCUTT and MORRIS, JJ., Concur.

      We express no opinion as to the scope of relief to which Mr. Mendez-Domingo may be entitled if he ultimately establishes his claim of ineffective assistance.


text:
    Michael RUFFIN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-5154
    District Court of Appeal of Florida, First District.
    Opinion filed December 22, 2017
    Michael Ruffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


author: LAGOA, J.

text:
    Zevin MITCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-307
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and LAGOA, and SALTER, JJ.
   LAGOA, J.

Zevin Mitchell ("Mitchell") appeals the trial court's revocation of his probation and sentence. We remand for the trial court to enter a written order of revocation of probation.

After an evidentiary hearing, the trial court orally pronounced that the State had proven by a preponderance of the evidence that Mitchell violated his probation by committing offenses in violation of condition five of his conditions of supervision and sentenced Mitchell to twenty-five years in state prison. On appeal, Mitchell alleges, and the State properly concedes, that the trial court erred in failing to enter a written order of revocation of probation.

It is well-settled that a trial court must "reduce to writing its oral pronouncement of the violations and revocation of ... probation."

Brown v. State, 127 So.3d 831, 831 (Fla. 3d DCA 2013) ; accord Centano v. State, 880 So.2d 1277, 1278 (Fla. 3d DCA 2004) ; McCloud v. State, 653 So.2d 453, 455 (Fla. 3d DCA 1995) ; see also, e.g., Joachin v. State, 199 So.3d 439-40 (Fla. 3d DCA 2016) ; Hulse v. State, 170 So.3d 911, 912 (Fla. 3d DCA 2015) ; Burt v. State, 931 So.2d 1005, 1006 (Fla. 3d DCA 2006) ; Wilcox v. State, 919 So.2d 609, 609 (Fla. 3d DCA 2006). Where a trial court fails to enter a written order of revocation of probation, this Court has remanded the matter to the trial court with directions for it to enter a written order stating the basis for revocation. See Wilcox, 919 So.2d at 609 ; McCloud, 653 So.2d at 455. Cf. Allen v. State, 780 So.2d 346, 346 (Fla. 3d DCA 2001) (remanding for correction of final order of revocation of probation and directing the trial court to enter written order that provided the basis for revocation and conformed to the trial court's oral findings at the revocation hearing).

Accordingly, we remand for the trial court to enter a written order of revocation of probation. Mitchell need not be present for the entry of the written order. Jones v. State, 638 So.2d 126, 127 (Fla. 1st DCA 1994).

Remanded with directions.

      The trial court sentenced Mitchell to fifteen years in the instant case and ten years in lower-case number 10-3680C, with the sentences to run consecutively. This Court similarly remanded in Mitchell v. State, 230 So.3d 1251, 2017 WL 4798948, 42 Fla. L. Weekly D2286 (Fla. 3d DCA Oct. 25, 2017), for the entry of a written order revoking probation in case number 10-36830C.

      Mitchell does not assert that the trial court erred in finding that he violated his probation, and we express no opinion on the issue. Upon the trial court's entry of a written order, Mitchell may assert such a claim. See Wilcox, 919 So.2d at 609 (remanding for entry of written order revoking probation and stating that "[o]nce the trial court enters the required order, should the defendant contend the grounds are not supported by the evidence, the defendant may appeal"); McCloud, 653 So.2d at 455 (declining to reach the defendant's contention that some of the grounds for revocation of probation were not supported by the evidence and holding that "[i]f, after entry of the written statement, the defendant contends that any of the grounds relied on by the trial court are not supported by the evidence, the defendant may appeal at that time").


text:
    The SAMPSON FARM LIMITED PARTNERSHIP, Appellant, v. Mark D. PARMENTER, as Personal Representative of the Estate of Marjorie A.S. Parmenter and Individually, Appellee.
    No. 3D16-1820
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018
    Haile Shaw & Pfaffenberger, P.A., and Gary A. Woodfield and Susan B. Yoffee (North Palm Beach), for appellant.
    The Silver Law Group, P.A., and Michael J. Healy and Robert A. Bernstein, for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Appellant, The Sampson Farm Limited Partnership ("Sampson Farm"), appeals from the trial court's order granting Appellee, Mark D. Parmenter's motion for summary judgment and granting the Final Judgment Determining Purchase Right of Partnership Interest. Because the trial court lacked personal jurisdiction over Sampson Farm and Sampson Farm did not waive its jurisdictional objection, we reverse the trial court's order granting summary judgment and Final Judgment Determining Purchase Rights of Partnership Interest, and remand to the trial court to dismiss the Amended Petition against Sampson Farm.

1. FACTUAL AND PROCEDURAL HISTORY

This case involves a familial dispute over ownership of a fraction of a family farm in Massachusetts. On April 6, 2011, Marjorie Parmenter, a Florida resident, died intestate. At the time of her death, Marjorie Parmenter held a 0.2% limited partnership interest in Sampson Farm, a Massachusetts limited partnership, which owns and operates a working farm in Westport, Massachusetts.

Marjorie Parmenter signed the Sampson Farm Agreement of Limited Partnership (the "Agreement") as a limited partner. The Agreement, which has an effective date of November 7, 2005, expressly provides that it is governed by Massachusetts law.

Section 10.5(a) of the Agreement provides that if, upon a partner's death, that partner's interest is to pass to anyone other than either another partner or someone in the deceased partner's family (specifically defined in section 10.1 of the Agreement to generally exclude spouses), Sampson Farm has an option to purchase that partnership interest within one year of the partner's date of death. If Sampson Farm does not exercise its option, the Agreement grants the remaining partners an additional thirty-day option to purchase the decedent's interest themselves. Finally, pursuant to section 10.5(c) of the Agreement, each partner agreed that to the extent his or her partnership interest was to pass to anyone other than another partner or family member, the partnership interest would be held in the partner's estate until the expiration of the Agreement's option periods.

On January 20, 2012, Mark D. Parmenter ("Parmenter"), Marjorie Parmenter's widower, filed a petition for probate proceedings to administer his wife's estate (the "Estate"), and on January 25, 2012, Parmenter was appointed personal representative. On August 14, 2014, an Order of Discharge was entered closing the Estate.

On September 4, 2014, Parmenter, as former personal representative, filed a petition to reopen the Estate pursuant to section 733.903, Florida Statutes (2014), "solely for the purpose of doing additional procedures necessary in order to clarify distributions." On September 9, 2014, the trial court entered an order revoking the previous Order of Discharge and issued Letters of Administration to Parmenter.

On October 8, 2014, Parmenter, both individually as beneficiary and as the personal representative, filed an adversary petition ("the Petition") in the probate action for a declaratory judgment determining that he owned Marjorie's partnership interest in Sampson Farm because Sampson Farm failed to file a claim against the Estate and thus lost its rights to invoke the option to purchase Marjorie's partnership interest. Of significance to this appeal, the Petition alleged that:

3. Part of the assets belonging to Marjorie as included in the Estate of Wordell Sampson was an interest in Sampson Farm LLP, a limited liability partnership under the laws of the Commonwealth of Massachusetts. The Sampson Farm LLP is a partnership whose business enterprise is the holding [of] real property and operating an agriculture business thereon in Bristol County, Massachusetts.

Sampson Farm moved to quash service of process and to dismiss for lack of personal jurisdiction, challenging the lack of factual allegations providing a basis for either personal jurisdiction under Florida's long arm statute or minimum contacts with Florida under federal due process requirements. The trial court denied the motion, and Sampson Farm filed its answer and reasserted lack of personal jurisdiction as affirmative defenses. The parties cross-moved for summary judgment. As part of its opposition to Parmenter's motion for summary judgment, Sampson Farm again asserted that the trial court lacked personal jurisdiction over it. The trial court subsequently entered the Final Judgment in favor of Parmenter. Regarding the question of personal jurisdiction, the trial court, in its written order, concluded that it had "subject matter jurisdiction to adjudicate this cause and personal jurisdiction over all of the parties to this action. Both parties have appeared herein and have sought affirmative relief from this Court beyond issues related to jurisdiction." This appeal ensued.

II. ANALYSIS

On appeal, Sampson Farms raises several issues. We address only one, however, as this issue is dispositive of this appeal. Sampson Farm argues that the trial court did not have personal jurisdiction to determine the issues raised in Parmenter's Petition, and further argues that the trial court erred in determining that it waived its jurisdictional objection. We review de novo the issue of personal jurisdiction over a foreign corporation. Camp Illahee Invs. Inc. v. Blackman, 870 So.2d 80, 83 (Fla. 2d DCA 2003). We first address the trial court's finding that Sampson Farm sought affirmative relief from the trial court and therefore waived any jurisdictional challenge.

The law in Florida is well established that:

"A defendant who timely asserts a challenge to the court's jurisdiction over the person of the defendant is not prejudiced by participation in the trial of the suit and defending the matter thereafter on the merits. His challenge is preserved and he may obtain a review of the question of personal jurisdiction upon appeal should he suffer an adverse final judgment in the cause....
However, a timely objection to personal jurisdiction may nevertheless be waived. In jurisdictions which follow the rule that a defense on the merits is not a waiver, the courts have long held that a defendant who goes beyond matters of defense and seeks affirmative relief waives a previously asserted objection to the personal jurisdiction of the court. Thus a majority of federal courts have held that the filing of a permissive counterclaim is a request for affirmative relief which waives an objection to personal jurisdiction notwithstanding that the objection is timely made."
We agree with the above reasoning of the federal and Florida courts that adhere to its reasoning and hold that a defendant waives a challenge to personal jurisdiction by seeking affirmative relief.

Babcock v. Whatmore, 707 So.2d 702, 704-05 (Fla. 1998) (citations omitted) (quoting Hubbard v. Cazares, 413 So.2d 1192, 1193 (Fla. 2d DCA 1981) (concluding that former husband's motion for relief from judgments did not waive his challenge to personal jurisdiction because it "was not a plea for affirmative relief but rather was a defensive motion seeking to avoid the judgments").

As this Court concluded in Berne v. Beznos, 819 So.2d 235 (Fla. 3d DCA 2002), "under Babcock, so long as the defending party makes a timely objection to personal jurisdiction, the defendant may defend the case without waiving the objection. The court's example of affirmative relief which would waive the jurisdictional objection is the assertion of a permissive counterclaim." Id. at 238 (citation omitted). As such, "if a defending party timely raises an objection to personal jurisdiction or service of process, then that defendant may plead to the merits and actively defend the lawsuit without waiving the objection." Id.

Here, Sampson Farm first raised its objection to personal jurisdiction by way of its motion to dismiss. After the trial court denied the motion, it is undisputed that Sampson Farm again objected to the trial court's lack of personal jurisdiction in its first responsive pleading. Significantly, Sampson Farm did not seek affirmative relief, as it only pled to the merits and actively defended itself by way of an answer, affirmative defenses, and a motion for summary judgment. Affirmative relief is best defined as " '[r]elief for which defendant might maintain an action independently of plaintiff's claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it.' " Heineken v. Heineken, 683 So.2d 194, 197 (Fla. 1st DCA 1996) (quoting Grange Ins. Ass'n v. State, 110 Wash.2d 752, 757 P.2d 933, 940 (1988) (en banc)). We therefore conclude that the trial court erred in finding that Sampson Farm sought affirmative relief by actively defending the lawsuit "beyond issues related to jurisdiction" and thereby waived its challenge to personal jurisdiction. Under Babcock and Berne, Sampson Farm did not waive its objection to personal jurisdiction, as neither the filing of an answer with affirmative defenses nor the filing of a motion for summary judgment constitute affirmative relief that would waive a challenge to personal jurisdiction. Both the answer and motion for summary judgment are defensive in nature. See Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So.2d 794 (Fla 4th DCA 1987) (holding that the filing of an answer and counterclaim did not waive defense for lack of personal jurisdiction where the answer asserted lack of personal jurisdiction in affirmative defenses and the counterclaim was compulsory).

We now turn to the issue of whether personal jurisdiction exists over Sampson Farm. Sampson Farm argues that the entry of final judgment in favor of Parmenter was in error because Parmenter failed to allege any factual basis to establish personal jurisdiction over it.

In determining whether the trial court had personal jurisdiction over Sampson Farm, we first look to whether the complaint alleges sufficient jurisdictional facts to bring Sampson Farm within the purview of Florida's long-arm statute. Am. Exp. Ins. Servs. Eur. Ltd. v. Duvall, 972 So.2d 1035, 1038 (Fla. 3d DCA 2008). The plaintiff bears the initial burden of alleging sufficient jurisdictional facts in his or her complaint to establish the basis for the court's long-arm jurisdiction under section 48.193, Florida Statutes (2014). Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582 (Fla. 2000) ; Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989). If the plaintiff meets this hurdle, the second inquiry is whether the defendant possesses sufficient minimum contacts with Florida to satisfy constitutional due process requirements. Venetian Salami, 554 So.2d at 500. This requires the court to determine whether a non-resident defendant's conduct in connection with Florida is such that the defendant "should reasonably anticipate being haled into court" here. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

A review of the record shows that neither the Petition nor the Amended Petition contained any allegations sufficient to establish personal jurisdiction over Sampson Farm. Indeed, Parmenter alleges in both his Petition and Amended Petition that Sampson Farm is a Massachusetts limited partnership whose business is to own and operate an agricultural business in Massachusetts. Moreover, Parmenter failed to establish any factual basis for personal jurisdiction in opposition to Sampson Farm's motion for summary judgment. Parmenter instead focuses his argument below and on appeal on the notion that Sampson Farm's lack of contacts with Florida are not relevant for personal jurisdiction because of the special nature of probate. We find Parmenter's argument unpersuasive.

This Court is bound by prior precedent, and this Court's opinion in Wolf Sanitary Wiping Cloth, Inc. v. Wolf, 526 So.2d 702 (Fla. 3d DCA 1988), receded from on other grounds by C.A.T. LLC. v. Island Developers, Ltd., 827 So.2d 373, 374 (Fla. 3d DCA 2002) (en banc), is indistinguishable from the facts of the instant case. In Wolf, at the time of his death, Mr. Wolf owned five hundred shares in Wolf Sanitary Wiping Cloth, Inc., a family-owned Michigan corporation. Id. at 703. Mr. Wolf's shares were subject to a stock repurchase agreement executed in Michigan by the corporation prior to Mr. Wolf's death. Id. Mr. Wolf's estate was probated in Miami-Dade County, and the personal representative brought an action for declaratory relief requesting that the trial court construe the rights of the estate under the terms of the repurchase agreement. Id.

Of significance to this appeal, this Court in Wolf held, in the alternative, that the trial court lacked personal jurisdiction over the Michigan corporation. Id. at 705. First, this Court noted that the company was a foreign corporation and that there were no allegations that it had contacts sufficient to subject it to personal jurisdiction in Florida. Id. This Court further rejected the argument that the corporation was an "interested person" and thus subject to formal notice pursuant to section 731.301(1), Florida Statutes (1985). Id. Specifically, this Court found that section 731.301(1) was not "a shorthand method of subjecting all potential litigants to the jurisdiction of the probate court." Id. While recognizing that personal representatives have a duty to marshal estate assets with dispatch, this Court concluded that duty "does not empower a personal representative to enforce contract rights against a foreign corporation where jurisdiction has not been obtained." Id. at 706.

Moreover, it is well established-both generally, and specifically with regard to adversary actions arising out of probate-that a pleading must make the requisite allegations of personal jurisdiction. Galego v. Robinson, 695 So.2d 443, 444 (Fla. 2d DCA 1997) ; In re Estate of Tyler, 543 So.2d 1307, 1307-08 (Fla. 4th DCA 1989) ; Wolf, 526 So.2d at 705 ; see also Kountze v. Kountze, 20 So.3d 428, 432-33 (Fla. 2d DCA 2009). Thus, even if Sampson Farm fell within the scope of section 731.301(1)'s notice provision, Parmenter failed to provide any evidence of Sampson Farm's minimal contacts with Florida sufficient to meet the constitutional due process requirements necessary to exercise personal jurisdiction over it. Accordingly, we reverse and remand to the trial court to vacate the Final Judgment in favor of Parmenter and dismiss the Amended Petition against Sampson Farm for lack of personal jurisdiction.

Reverse and remand for proceedings consistent with opinion.

      At the time of her death, Marjorie Parmenter also held an undetermined partnership interest as a beneficiary in the estate of her uncle, Wordell Sampson, who predeceased her and whose estate was being administered in Massachusetts.

      Parmenter's subsequent Amended Petition filed on October 5, 2015, did not make any substantive changes to these jurisdictional allegations.

      Specifically, Sampson Farm averred in both its initial answer and its answer to the Amended Petition as follows:
      2. As and for its Second Affirmative Defense, this court lacks personal jurisdiction over Sampson Farm. This is not an in rem proceeding; therefore, personal jurisdiction over Sampson Farm is required. The Petition fails to contain any jurisdictional allegations over Sampson Farm, nor could it.
      3. As and for its Third Affirmative Defense, this court's attempt to exercise jurisdiction over Sampson Farm violates the Florida long-arm statute. Section 48.193, Florida Statutes.
      4. As and for its Fourth Affirmative Defense, this court's attempt to exercise jurisdiction over Sampson Farm violates the Due Process clause of the United States Constitution.

      Because both the Petition and Amended Petition failed to plead a legally sufficient basis for long-arm jurisdiction, Sampson Farm was not required to file affidavits or present other evidence to contest the jurisdictional issue. See Crownover v. Masda Corp., 983 So.2d 709, 713 (Fla. 3d DCA 2008).

      Because Parmenter failed to establish a basis for the exercise of long-arm jurisdiction under section 48.193, we need not address the issue of minimum contacts and constitutional due process. It is clear, however, that with respect to this second prong, the record contains no evidence that Sampson Farm has engaged in any business in Florida, bought or sold property in Florida, or engaged in any other contact with Florida such that Sampson Farm could reasonably expect to be haled into court here. Indeed, the record shows that the petition was served on Sampson Farm's registered agent in Massachusetts. Based on the record here, exercise of personal jurisdiction would "offend 'traditional notions of fair play and substantial justice.' " Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ).

      In C.A.T., this Court receded from the holding in Wolf that a stockholder's derivative suit cannot be brought through a declaratory proceeding in a probate proceeding. 827 So.2d at 374. Wolf's alternative holding that the trial court lacked personal jurisdiction over the defendant is applicable here and remains binding precedent.

      "[W]here a decision rests on two or more grounds, none can be relegated to the category of obiter dicta." Clemons v. Flagler Hosp., Inc., 385 So.2d 1134, 1136 n.3 (Fla. 5th DCA 1980).

      Substantively, the 1985 and current versions of that statute are not significantly different, although procedural portions of the 1985 statute were subsequently removed from the statute and moved to Florida Probate Rule 5.040.


author: LOGUE, J.

text:
    William ROMAGUERA and Ivette Romaguera, Appellants, v. TRUST MORTGAGE, LLC, Appellee.
    No. 3D16-1482
    District Court of Appeal of Florida, Third District.
    Opinion filed January 17, 2018.
    Henry E. Marines, for appellants.
    Matthew Estevez, P.A., and Matthew Estevez, for appellee.
    Before SUAREZ, SALTER, and LOGUE, JJ.
   LOGUE, J.

William and Ivette Romaguera appeal the trial court's denial of their motion for attorney's fees. In the mortgage foreclosure action below, the Romagueras moved for involuntary dismissal of Trust Mortgage, LLC's action under Florida Rule of Civil Procedure 1.420(b) because Trust Mortgage failed to serve the requisite witness and exhibit lists before trial. The trial court granted the motion and dismissed the action without prejudice. The Romagueras then sought attorney's fees, alleging they were entitled to fees as the prevailing party based on provisions of the note and mortgage and section 57.105(7), Florida Statutes (2015). The trial court denied the Romagueras' motion for fees, and this appeal followed. Because the trial court erred as a matter of law in denying the Romagueras' entitlement to attorney's fees, we reverse and remand for further proceedings.

A trial court's denial of attorney's fees is ordinarily reviewed for an abuse of discretion. Raza v. Deutsche Bank National Trust Co., 100 So.3d 121, 123 (Fla. 2d DCA 2012). However, "[w]here entitlement rests on the interpretation of a statute or contract, our review is de novo." Id. Here, the Romagueras' motion for attorney's fees was based on the provisions of the mortgage and note at issue and section 57.105(7). Section 57.105(7) provides the following:

If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

Florida courts have consistently held that a mortgagor is entitled to attorney's fees as the "prevailing party" under section 57.105(7) when a mortgage foreclosure case has been dismissed. See, e.g., Vivot v. Bank of America, NA, 115 So.3d 428 (Fla. 2d DCA 2013) (concluding that the mortgagor was entitled to prevailing party attorney's fees under section 57.105(7) when the foreclosure suit was dismissed for failure to prosecute); Raza, 100 So.3d at 121 (concluding that the mortgagor was entitled to prevailing party attorney's fees under section 57.105(7) following the involuntary dismissal without prejudice of the Bank's mortgage foreclosure lawsuit); Nudel v. Flagstar Bank, FSB, 60 So.3d 1163 (Fla. 4th DCA 2011) (concluding that the mortgagor "is the prevailing party within the meaning of subsection 57.105(7)" after the trial court dismissed the mortgage foreclosure action without prejudice); Valcarcel v. Chase Bank USA NA, 54 So.3d 989 (Fla. 4th DCA 2010) (concluding that the mortgagors were entitled to prevailing party attorney's fees under section 57.105(7) after the trial court dismissed without prejudice a foreclosure action based on misconduct by the Bank's counsel).

Under this line of cases, the Romagueras successfully had Trust Mortgage's foreclosure case against them dismissed, albeit without prejudice, and therefore they were the prevailing party below within the meaning of section 57.105(7). Trust Mortgage argues that the trial court correctly relied on this court's decision in Boxer Max Corp. v. Cane A. Sucre, Inc., 905 So.2d 916 (Fla. 3d DCA 2005) in denying the Romagueras' motion for fees. But Boxer did not involve the determination of a prevailing party within the meaning of section 57.105(7). In Boxer, this court concluded that the trial court acted within its discretion in denying prevailing party attorney's fees under the terms of a lease because "the parties actually entered into a settlement agreement at trial." Id. at 918. Here, we conclude as a matter of law that the Romagueras were the prevailing party below within the meaning of section 57.105(7). Accordingly, we reverse the trial court's order denying the motion for attorney's fees and remand to the trial court to determine the amount.