author: Per Curiam.

text:
    Eugene HWANG, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-3288
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

In this appeal of his conviction for sexual battery, appellant raises two issues. First, he argues that the trial court erred by denying his motion to redact what he claims is hearsay from police-recorded conversations between the victim and appellant. During the conversations, the victim questioned appellant about the sexual assault. She asked him why he continued forcing himself on her when his friend, who was present at the time but did not testify at trial, told appellant “not to do it.” The friend’s statement relayed by the victim was not introduced for the truth of the matter but for the reaction of the listener, appellant. Thus, it was not hearsay. See McWatters v. State, 36 So.3d 613, 638 (Fla. 2010) (holding that police officer’s inclusion, in his interrogation of defendant, of statements made by other witnesses which were not offered for the truth of their content were thus not objectionable).

Second, appellant contends that the court reversibly erred in denying his motion for mistrial when the victim mentioned in her testimony that he had a prior DUI. The court sustained the objection and gave a curative instruction but concluded that a mistrial for this fleeting reference was not warranted. A mistrial is not always required where collateral crime evidence is referred to at trial, particularly where the reference was inadvertent and brief, as it was in this case. See Rivera v. State, 745 So.2d 343, 345 (Fla. 4th DCA 1999).

As to the sentence, the State concedes that the scoresheet and statutory references for the degree of felony, as well as for costs, should be corrected. The judgment and scoresheet indicated that appellant was convicted of a first degree felony. The State agreed prior to trial that it was actually a second degree felony. While the judgment was corrected to reflect a second degree felony, the State concedes that the scoresheet must also be corrected to show a conviction for a second degree felony rather than a first degree felony. See § 794.011(5), Fla. Stat. (2012). No change in the lowest permissible sentence is necessary, because it was scored as a level eight offense on the sentencing scoresheet. See § 921.0022(3)(h), Fla. Stat. (2012) (making sexual battery of a victim over the age of twelve without physical force likely to cause serious injury a second degree felony and a level eight offense). The statutory reference for the $100 assessment for the Operating Trust Fund of the Department of Law Enforcement was also in error. The correct statutory citation should be section 938.055, Florida Statutes (2012), which became effective October 1, 2012. On remand, the sentence should also be corrected to reflect the proper statutory citation.

Affirmed but remanded to correct sentence,

Warner, Taylor and Levine, JJ., concur.


source: Caselaw Access Project

author: Damoorgian, J.

license: Public Domain

text:
    Margaret A. TREVARTHEN a/k/a Margaret Ann Trevarthen, Appellant, v. Charles E. WILSON III, individually, and as Trustee of the Charles E. Wilson III Revocable Trust dated February 5, 2013, and Bob Jackson, Inc., Appellees.
    No. 4D16-2032
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]

      Timothy D. Kenison and William' T. Viergever of Sonneborn Rutter Cooney Viergever Burt & Lury, P.A.,- West Palm Beach, for appellant.
    Larry M. Mesches of Klett, Mesches & Johnson, P.L., Palm Beach Gardens, for appellee Bob Jackson, Inc.
   Damoorgian, J.

This is an appeal from a- final summary judgment entered in favor of Bob Jackson, Inc. in Appellant’s lawsuit against Bob Jackson; Inc. and one of its real estate agents. For the reasons set forth below, we affirm in part and reverse in part.

Appellant, a 93-year-old woman, filed a multi-count lawsuit against Charles Wilson, a real estate sales associate, and Bob Jackson, Inc. the brokerage firm with whom Wilson was associated (the “Brokerage Firm”). The suit was largely based on claims that Wilson exploited and abused Appellant by using Appellant’s money to pay his personal expenses, entering Appellant into real estate transactions for his own dealing and benefit, and purchasing a condominium for himsélf with Appellant’s money. Appellant also sued the Brokerage Firm for one count of “Vicarious Liability” and one count of “Direct Liability,” alleging that the Brokerage Firm was vicariously responsible for Wilson’s actions because it facilitated and earned commissions from Wilson’s unlawful real estate transactions and was “directly” liable to Appellant because it did not properly manage certain escrow funds. Specifically, Appellant alleged that: ,

• She met Wilson through an introduction facilitated by another agent of the Brokerage Firm whom she had used to find a rental property.
• Wilson agreed to help her renovate and sell a dilapidated condominium unit she owned (Unit 704) in exchange for a share of the proceeds and an exclusive listing agreement with the Brokerage Firm. The renovation agreement was between Appellant arid Wilson individually.
• Appellant granted Wilson status as her power of attorney for purposes of renovating Unit 704.
• Wilson failed to consider Appellant’s cost basis when calculating his share of the proceeds from the sale, of Unit 704 and Wilson and the Brokerage Firm Received a commission on the sale.
• Wilson convinced Appellant to purchase another condominium unit for her personal residence, Unit 304, for which Wilson and the Brokerage Firm received a commission.
• Wilson convinced Appellant to purchase yet another unit, PHt-2, for renovation and resale. Wilson and the Brokerage Firm received a commission on both Appellant’s purchase and subsequent sale of PH-2. The transaction resulted in a financial loss to Appellant.
• Wilson used ¡Appellant’s money to purchase a condominium unit for himself which was deeded in the name of a trust Wilson created. . The Brokerage Firm’s principal, Bob Jackson, acted-as the sales-agent for this transaction and both Jackson and the Brokerage Firm received a commission.

The Brokerage Firm moved for summary judgment, arguing that the “uncon-troverted facts” established that it always acted fairly with respect to Appellant and any wrong acts committed by Wilson were “outside the scope of his work on behalf- of [the Brokerage Firm]” and were done to accomplish Wilson’s “own purpose and not to serve the interests of [the Brokerage Firm].” In. support of its motion, the Brokerage Firm submitted excerpts from the depositions of Appellant, Wilson, and Jackson. That evidence corroborated each of the afore-outlined allegations and also established that:

• Jackson was aware that 'Wilson' was Appellant’s attorney-in-fact at the time Unit. 704 sold..
• While the contract for Appellant’s purchase of Unit 304 was pending, Wilson wired $300,000 from Appellant’s bank account into the Brokerage Firm’s escrow. Jackson testified that Wilson told him that the money was for the purchase of ádditional unspecified properties. Jackson informed Wilson that he would not hold any money in escrow without a corresponding contract and refunded it via cashier’s check to Appellant the next day.
• Wilson created the trust used to purchase his condo unit at the advice of Jackson because of the “litigiousness in Florida.”
• Jackson admitted that he was acting as the broker/sales agent for Wilson’s purchase of his condo unit and was aware that Wilson paid with cash although the closing was previously extended twice because Wilson could not come up with financing.
• Jackson acknowledged that Wilson stated that he was borrowing-money from Appellant at one point in time. However, Jackson did not think that any financial arrangement reached between Wilson and Appellant was any of his business.

Additionally, the Brokerage Firm submitted an affidavit executed by Jackson in which he swore that he “performed an analysis of all checks made payable from [Appellant] to [the Brokerage Firm’s] es.crow account between 2012 and 2014. The checks received from [Appellant] totaled $38,050 on three separate transactions and were properly and ethically handled by [the Brokerage Firm].” The affidavit went on to outline where every dollar of the money paid by Appellant into the Brokerage Firm’s escrow account went.

Without explanation, the court granted the Brokerage Firm’s motion for summary judgment and entered judgment in its favor. This appeal follows.

Vicarious Liability Count

General principles of vicarious liability establish that a principal is responsible for the wrongful acts of its agent if the agent was either acting “(1) within the scope of [its authority], or (2) during the course of [the agency] and to further a purpose or interest of the [principal].” Valeo v. E. Coast Furniture Co., 95 So.3d 921, 925 (Fla. 4th DCA 2012). Additionally, a principal may be still be liable for the acts of its agent which were outside the scope of the agent’s authority if the principal subsequently ratifies the actions. See McDonald v. Hamilton Elec., Inc. of Fla., 666 F.2d 509, 514 (11th Cir. 1982). A principal may ratify an agent’s actions which would have otherwise been outside the scope of its authority by accepting the benefit of the agent’s actions. See Mercury Ins. Co. of Fla. v. Sherwin, 982 So.2d 1266, 1270 (Fla. 4th DCA 2008) (“A principal may not accept the benefits of a transaction negotiated by the agent and disavow the obligations of that same transaction.”). In other words:

‘[w]hen an agent acts for his principal, and the principal accepts the fruits of the agent’s efforts, the principal must be deemed to have adopted the methods employed, and he may not, even though innocent, receive the benefits and at the same time disclaim responsibility for the means by which they were acquired.’

Fredrick v. Squillante, 144 So.2d 848, 849 (Fla. 2d DCA 1962) (quoting Chase v. Sullivan, 99 Fla. 202, 126 So. 359, 360 (1930)).

This doctrine was applied to the detriment of a real estate broken in Fraioli v. Bobby Byrd Real Estate, Inc., 630 So.2d 1131, 1132 (Fla. 2d DCA 1993). There, one of the broker’s sales agents and the plaintiff partnered to open and run a restaurant. Id. The property which the men chose to lease for the location of their restaurant was listed by the broker, so the sales agent acted as both the leasee and sales agent for the transaction—earning the broker a sizeable commission in the process. Id. Shortly after the restaurant opened, the state seized the property due to delinquent taxes owed by the previous owner. Id. The plaintiff sued his partner— the sales agent—and the broker for fraudulent inducement and fraudulent misrepresentation, alleging that the sales agent exaggerated the fair market value of the property and misrepresented the results of a title search. Id.

The broker moved for summary judgment, arguing that the “false assurances alleged in the complaint stemmed from and were confined to the private business venture undertaken by and between” plaintiff and the sales agent and that the sales agent had no authority in his capacity as an agent for the broker to induce the real estate transaction by false means. Id. The trial court agreed with the broker and entered summary judgment in its favor. Id. On appeal, however, the appellate court reversed, holding that “the question of [the sales agent’s] actual or apparent authority to act in the manner alleged by [the plaintiff] is not controlling.” Id. Rather, based on the doctrine excerpted above, the court held that the fact the broker received a commission as a result of the sales agent’s actions exposed it to liability in the event the sales agent did indeed act fraudulently. Id.

Here, the Brokerage Firm argues that summary judgment in its favor was proper because any wrongful action on the part of Wilson stemmed from a private business venture between Appellant and Wilson, and was committed to accomplish his own purpose. This argument is nearly identical to the argument raised by the broker and rejected by the court in Fraio-li, and fails to address the undisputed material fact that the Brokerage Firm received a commission from each of the real estate transactions which were effectuated by Wilson’s alleged wrongful conduct.

In addition to the receipt of commissions, additional facts raise questions about the Brokerage Firm’s ratification of Appellant’s potentially wrongful conduct. Specifically, there were factual disputes over whether the Brokerage Firm’s principal accepted a commission for Wilson’s purchase of his condo unit knowing that: 1) Wilson was Appellant’s attorney-in-fact at the time he purchased the unit; 2) Wilson was having problems obtaining financing for the purchase of the unit before he became Appellant’s attorney-in-fact; 3) Wilson had previously wired funds from Appellant’s account to the Brokerage Firm’s escrow for the eventual purchase of real estate, and subsequently paid cash for his unit; and 4) the Brokerage Firm’s principal’s suggestion that a trust be formed to hold title to Wilson’s unit in order to avoid liability.

In sum, the Brokerage Firm’s receipt of commissions on the alleged wrongful real estate deals, as well as its possible knowledge that Wilson was wrongfully using Appellant’s funds to purchase real estate, raised issues of fact precluding summary judgment on Appellant’s vicarious liability claim against the Brokerage Firm. See also Goodman v. Rose Realty W., Inc., 193 So.3d 86, 87-88 (Fla. 4th DCA 2016) (reversing summary judgment entered in favor of real estate broker based on vicarious liability for sales agent’s fraudulent conduct in selling the agent’s own home because broker received a commission on the transaction).

Direct Liability Count

Appellant also argues that the Brokerage Firm is contractually liable to her because it refunded her the $300,000 wired from her account into the Brokerage Firm’s escrow account while the Unit 304 sales contract was pending. Appellant maintains that by refunding the $300,000, the Brokerage Firm breached its duties as the Escrow Agent under the terms of the Unit 304 contract and facilitated Wilson’s later fraudulent use of the funds. The Brokerage Firm counters that it had no contractual duty to hold the $300,000 in its escrow account.

The record established that Appellant entered into a contract for the purchase of Unit 304. The Brokerage Firm was designated as Appellant’s “Escrow Agent” for the transaction. Pursuant to the contract, Appellant deposited $15,000 with the Escrow Agent. There is no dispute that the Brokerage Firm acting as Appellant’s Escrow Agent properly handled that $15,000 deposit. While the sale was pending, $300,000 was wired from Appellant’s account to the Brokerage Firm’s escrow account. The Brokerage Firm immediately refunded. Appellant the $300,000.

Appellant maintains that the Brokerage Firm was required to hold the $300,000 until the sale of Unit 304 was finalized. However, the Escrow Agent was only required to hold and disburse funds pursuant to the terms of the contract. The only escrowed funds alluded to in the contract was Appellant’s $15,000 deposit. Accordingly, we reject Appellant’s claim that the Brokerage Firm had a contractual duty to ensure that Appellant was not financially abused in other transactions. Accordingly, we affirm the summary judgment on the Direct Liability Count.

Affirmed in parti reversed in part.

Gerber and Forst, JJ., concur.

      . Appellant alleged causes of action against Wilson for breach of fiduciary duty, breach of contract, unjust enrichment, conversion, civil •theft> and exploitation of the elderly.


author: Warner, J.

text:
    STATE of Florida, Appellant, v. Luis BORN-SUNIAGA, Appellee.
    No. 4D15-4853
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellant.
    A. Randall Haas, Fort Lauderdale, for appellee.
   Warner, J.

The State appeals an order discharging appellee, Luis Born-Suniaga, pursuant to the speedy trial rule, Florida Rule of Criminal Procedure 3.191. The State charged appellee within the rule 3.191 speedy trial time period but failed to notify him of the charges until well after its expiration. The trial court dismissed the charges without affording the State the recapture period set forth in the rule. The court followed this court’s opinions in State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995), and Thompson v. State, 1 So.3d 1107 (Fla. 4th DCA 2009), although recognizing that those cases conflicted with State v. Jimenez, 44 So.3d 1230 (Fla. 5th DCA 2010). Having reviewed this case en banc, we recede from Morris, Thompson, and other cases relying on the Morris line of reasoning, which deprives the State of the recapture period under rule 3.191. We conclude that these cases conflict with both State v. Naveira, 873 So.2d 300 (Fla. 2004), and State v. Nelson, 26 So.3d 570 (Fla. 2010). We align ourselves with Jimenez and reverse and remand for reinstatement of the charge.

Facts

Following an incident on November 6, 2014, appellee was arrested the same day for misdemeanor battery in attempting to prevent the victim from reporting a noise complaint to law enforcement. Appellee provided- his address, posted bond; and was released on November 7, 2014. ■

On February 6, 2015, ninety-two days after his arrest, the State filed an information charging appellee with tampering with a witness in violation of section 914.22, Florida Statutes (2014), a felony, and misdemeanor battery, on the-basis of-the November incident. That same day, the State filed instructions for the Clerk to issue a not-in-custody capias as to both counts. On February 11, 2015, the State asked the Broward Sheriffs Office (“BSO”) to serve the capias, listing the address appellee had provided upon his initial arrest. A detective was assigned to execute the warrant on March 25, 2015. There is no indication in the record that the detective made any effort to serve the warrant.

On April 15, 2015, the State filed a “no information” sheet'on the original misdemeanor battery charge. Appellee was notified that the charge had been dismissed and his bond discharged.

The 175-day speedy trial period expired on April 30, 2015.

Appellee first became aware of the new charges on November 19, 2015, well over 175 days after his arrest, through his co-defendant’s counsel. Upon becoming aware of the charges, appellee did not file a notice of expiration of speedy trial time. Rather, on November 25, 2015, appellee moved to discharge, arguing that he was entitled to immediate discharge because the State was not allowed a fifteen-day recapture period, as it had not made any effort to notify him of the charges within the speedy trial period. The State responded, arguing that because the information was filed before the expiration of the 175-day period, the State was entitled to a recapture period. The State further argued that reasonable efforts were made to serve appellee with the capias during the speedy trial period, as evidenced by its communications with BSO.

The trial court held an evidentiary hearing on the motion to discharge. Appellee was the only witness to testify. He stated that since his initial arrest, he had moved twice, but had updated his address with the U.S. Postal Service each time and had his mail forwarded from the original address. He did not update his address with the Clerk’s office. However, he did not receive any forwarded mail from the Clerk, much less anything suggesting that there were pending charges against him. Nothing in the record indicates that the Clerk’s office sent appellee any notice when the information was filed in February 2015.

Appellee testified that he had repeatedly tried to determine whether the State had filed any new charges against him. On February 20, 2015, after his co-defendant was charged, appellee was informed by his attorney that there were no charges against him. He went to the jail later that day when his co-defendant turned himself in. At the jail, appellee was informed by a deputy that there were no charges pending against him. Later that day, appellee encountered other police officers who told him he was free to go and informed him that there were no warrants against him. In April 2015, appellee looked his case up and saw that it was listed as having been “disposed.” Based on this, he was led to believe there were no charges against him.

The State presented no evidence. It did not show that anyone had attempted to notify appellee of the charges filed. No clerk’s office employee testified that any mailings had been sent to appellee, and no testimony showed that BSO had made any attempt to serve appellee.

The trial court found that there was no record activity from appellee in the case file, no notices were ever mailed to him, and the file “pursuant to the clerk’s office policy was sealed.” The court concluded that there was no way for appellee to find out that this case existed and no effort to alert him to the fact that charges stemming from the initial incident were still ongoing. The court noted that it was bound by Fourth District ease law, which conflicts with Jimenez. Based on- this, the court granted appellee’s motion for discharge without allowing the State the fifteen-day recapture period. The State timely appealed.

Analysis

As it did before the trial court, the State argues that the court erred by granting appellee’s motion for discharge without affording the State the opportunity to try him within the recapture period, where the information was filed within the speedy trial timeframe, but appellee was not served until after the expiration of that time. Appellee counters that the trial court correctly adhered to Fourth District precedent. We examine rule 3.191, the Florida Supreme Court precedent of Nelson and Naveira analyzing the rule, and our own cases. We conclude that our cases are in conflict with Nelson and Naveira. We therefore recede from them and agree with Jimenez.

(A) The Speedy Trial Rule

This case turns on Florida Rule of Criminal Procedure 3.191, the speedy trial rule. The interpretation of the rules of procedure with regard to the right to a speedy trial is a question of law, subject to de novo review. Nelson, 26 So.3d at 573-74. Rule 3.191 provides that

every person charged with a crime shall be brought to trial ... within 175 days of arrest if the crime charged is a felony. If trial is not commenced within these time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p). The time periods established by this subdivision shall commence when the person is taken into custody.

Fla. R. Crim. P. 3.191(a). In turn, rule 3.191(p) provides the remedy for failure to try a defendant within the specified time:

(1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).
(2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.
(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Fla. R. Crim. P. 3.191(p). Rule 3.191(j) sets forth exceptions to the expiration of the speedy trial period, including a stipulated extension of time; continuances attributable to the defendant; unavailability of the accused; or an invalid demand for speedy trial. None of these exceptions apply in this case. Thus, we analyze whether the State, may be deprived of the recapture period when it fails to notify the defendant of pending charges within the speedy trial period.

(B) Florida Supreme Court’s Interpretation of the Rule (1) State v. Nelson

The Florida Supreme Court has summarized the provisions of rule 3.191 in State v. Nelson, 26 So.3d 570 (Fla. 2010).

Although all defendants are entitled to the benefit of the default rule, the rule is not self-executing and requires a defendant to take affirmative action to avail him- or herself of the remedies afforded under the rule based on the State’s failure to comply with the time limitations. When a defendant is charged within the speedy trial period, the remedy for a violation of the rule is not an automatic discharge. Rather, the remedy for the State’s failure to try a defendant within the specified time is provided for in Florida Rule of Procedure 3.191(p). Specifically, at any time after the expiration of the speedy trial period,"the defendant may initiate application of the rule by filing and serving on the State a separate pleading entitled “Notice of Expiration of Speedy Trial Time.” This pleading invokes the defendant’s speedy trial rights ....

Id. at 674 (citations omitted). The court then must hold a hearing within five days and determine whether any of the exceptions ⅛ rule 3.191(j) exist, and if none do, then the State must bring the defendant to trial within the ten-day recapture period. Id. at 674-75. “As demonstrated- by' these provisions, a defendant is not automatically entitled to discharge based on the State’s failure to meet the mandated time limit, and the State is generally entitled to the recapture period provided for by [the rule].” Id. at 675.

Noting the history of the rule,.which originally did not include a recapture period, the court quoted from the committee notes to the 1984 amendment, which created the recapture period for the State:

The intent of [the amendment] is to provide the state attorney with 15 days within which to bring a defendant to trial from the date of the filing of the motion for discharge. ... [I]t gives-'the system a chance to remedy a mistake; it does not permit the system to forget about the time constraints.

Id. at 575 (quoting Fla. R. Crim. P. 3.191 committee notes (1984)). Finally, it summarized the rule’s purpose:

The creation of the recapture period em~ phasizes the purpose of the rule—“to promote the efficient operation of the court system and to act as a stimulus to prosecutors to bring defendants to trial as soon as practicable, thus minimizing the hardships placed upon accused persons awaiting trial.” Lewis v. State, 357 So.2d 725, 727 (Fla. 1978). In other words, the recapture period illustrates the principle that a defendant has a right to speedy trial, not a right to speedy discharge without trial.

Id. at 576.

(2) State v. Naveira

Nelson reinforced the analysis of rule 3.191 and the speedy trial right in State v. Naveira, 873 So.2d 300 (Fla. 2004), which was decided under a factual situation closer to the facts of this case. In Naveira, the State filed its information charging the defendant on the 175th day from his arrest. Id. at 302. The defendant filed a notice of expiration of speedy trial five days later. Id. The court held a hearing as required under the rule arid set the trial ten days later. Id. Defendant rrioved for a continuance and then for discharge, contending that the State’s late filing of the information deprived him of his ability to prepare a defense because he was required to choose between his right to a rule-based speedy trial and his ability to defend. Id. at 302-03. The Florida Supreme Court determined that the State was entitled to the recapture period, even where the information was not filed until the last day of the speedy trial period, and thus defendant was not even noticed of the charges before its expiration. Id. at 310.

Noting that rule 3,191 addresses only the time for bringing a defendant to trial, not when charges may be filed, and that it had previously held that the State could not charge the defendant after the expiration of the speedy trial period, the court concluded that the State could file charges up to the last day of that period. Id. at 308-09. The rule does not provide for automatic discharge if the defendant is not tried within the 175 day.period. Id. at 306. “Rather, the defendant may then in-' voke the rule by filing a notice of expiration of the speedy trial time. At that point, the court .must hold a hearing within five days and then schedule a trial'within ten days.” Id. When Naveira filed his notice of expiration of the speedy trial period but then moved to continue the trial set days later, .he waived his rule-based speedy trial rights, id. at 308. The court rejected his claim that this required him to choose between the right to a speedy trial and the right to be adequately prepared for trial:

Naveira argues that our conclusion unlawfully forces him to choose between two rights, the right to speedy trial and the right to adequately prepare for trial. We disagree. Naveira had the right to invoke the speedy trial rule and go to trial within ten days. He also had the right to .request a continuance because he was not prepared to go. to trial in ten days. ... The mere fact that Naveira had to elect between a speedy trial under the rule and adequate preparation, however, did not violate his constitutional rights.

Id. at 307-08. -The court then distinguished between the rule-based speedy trial right and the constitutional right to a speedy trial:

The right to speedy trial provided in rule 3.191. is not coextensive with the broader constitutional right to a speedy trial. No constitutional right exists 'to a trial within 175 days of arrest. As we have previously noted, “Florida’s speedy trial rule is a procedural protection and, except for the right to due process under the rule, does not reach constitutional dimension.” State v. Bivona, 496 So.2d 130, 133 (Fla. 1986). As opposed to the right provided in the rule, “[t]he constitutional speedy trial period is measured by tests of reasonableness and prejudice, not specific numbers of days.” Fonte v. State, 515 So.2d 1036, 1038 n.2 (Fla. 3d DCA 1987).

Id. at 308. Because Naveira was demanding the rule-based speedy trial, the procedural aspects of the rule, including the recapture period, circumscribed his exercise of his right, which he could waive by requestirig a continuance:

Under the rule, he received the right-to an immediate trial . He declined to exercise, that right, as was his prerogative. But he cannot, now protest that his right to a speedy trial was violated. Although we sympathize.with.the defendant’s position in this case, the fact remains that under rule 3.191, Naveira’s right to speedy trial existed until he declined to exercise.it. .

Id. Commenting on the dissenting opinion in Naveira, the court made it clear that where the speedy trial right is rule-based,’ the State is entitled to the recapture period, without which the defendant is not entitled to discharge:

The dissent argues that where the speedy trial period expires through no fault of the defendant, any continuance should be charged to the State. In this case, the dissent proposes that because the State did not file the information until the last day of the speedy trial period, and therefore the defendant was not ready for trial before the period expired, the defendant should be discharged. We disagree. Adopting such an interpretation would contradict the plain language of the applicable subdivisions of rule 3.191 ....

Id. at 309 (internal citation omitted). In other words, the right to discharge when an information is filed within the speedy trial period is strictly governed by the terms of the rule, and the rule requires that the State be allowed a recapture period.

Moreover, the majority in Naveira opposed the dissent’s analysis because it would render a clear rule ambiguous. Id. The majority characterized the dissent’s position as requiring the State to file charges and notify the defendant of them with sufficient time left in the speedy trial period for the defendant to adequately prepare for trial, making the time for filing the charges unclear:

The dissent’s interpretation of the rule would replace a clear deadline with an amorphous one that depends on the circumstances of each case. ... [T]he State would not be able to predict, in any given case, whether the timing of its charging document complied with the rule. The speedy trial period would now include an implicit “speedy charging period” with a shifting and unknown deadline. ... We decline to interpret the rule to impose such, unclear deadlines, with Draconian results (dismissal) when the State fails to correctly predict them.

Id. at 309-10. Thus, the court rejected any attempt to engraft onto the rule additional unwritten provisions which would require a case-by-case application.

(C) Application of Florida Supreme Court’s Interpretation

In this case, the State filed the information well within the 175-day period of the rule. It simply failed to notify appel-lee of the charges. However, when the period expires, the rule does not allow for a motion for discharge to be filed. Instead, a defendant can file a notice of expiration of speedy trial, triggering the recapture period for the State. There is nothing in the rule which allows the trial court to discharge a defendant pursuant to the rule when the State fails to notify the defendant of the charges within the speedy trial period. In Naveira, the State failed to notify the defendant of the charges within the period of the rule because it failed to file the charges until the last day of the period. Here, the State also failed to notify appellant of earlier-filed charges within the period. We do not see any significant difference between the two scenarios with respect to the application of the rule. Indeed, in this case, the recapture period appears to apply exactly for the reasons set forth in the committee notes to the amendment of the rule—the recapture period allows the State to remedy a mistake. Nelson, 26 So.3d at 575.

(D) Fourth District Cases are Inconsistent with Nelson and Naveira

We have, in several cases, approved discharge without allowing the State the recapture period of the rule where the State has failed to notify the defendant of the charges within the speedy trial period. In State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995), the defendant filed a demand for speedy trial, and trial was commenced. Id. at 378. However, the State filed a nolle prosequi of the case when a witness failed to appear. Id. While it refiled the charges the next day, it did not notify the defendant until after expiration of the fifty-day rule-based time period, within which after demand the defendant had to be tried. Id. at 378-79. Defendant moved for discharge, and the State sought the recapture period, as rule 3.191(b)(4) required the court to apply the remedies under rule 3.191(p) to demands for speedy trial. Id. at 379.

Our Court held that the State was not entitled to the recapture period where the State had failed to notify the defendant of the charges until after the speedy trial period had run: “Under these circumstances the state, by nol prossing and failing to notify defendant of the refiled charges or take him back into custody within the fifty days, deprived defendant of his right to have his trial commence no later than sixty-five days from his April 12 demand.” Id. The fact that a defendant may not be able to exercise the right to a trial within the speedy trial period, of' course, is the exact argument that the Florida Supreme Court rejected in Na-veira as a ground for depriving the State of the recapture period. Naveira, 873 So.2d at 309-10.

Again, in Thompson v. State, 1 So.3d 1107 (Fla. 4th DCA 2009), we reaffirmed Morris's holding that the State’s failure to put the defendant on notice of the charges prior to the expiration of the speedy trial period deprived the defendant of exercising his rights under the rule, and the State should not be entitled to a recapture period in these circumstances. Id. at 1112. We found Morris distinguishable from Thompson because in Thompson, although the defendant was not arraigned until after the speedy trial period had run, he had actual notice of the charges filed against him. Id. at 1110. “Hence, the state did not lull petitioner into believing that the charges against him had been abandoned, and the state did not interfere with his ability to file a notice of expiration of the speedy trial time. Thus, the state is entitled to the benefit of the recapture period.” Id. at 1111. Thompson thus relied on the fact that the defendant received notice of the charges within the speedy trial period and, because of this actual notice, held that the State was entitled to a recapture period.

In State v. Ingraham, 43 So.3d 164 (Fla. 4th DCA 2010), we held that “where the state sufficiently attempts', to notify a defendant of a refiled charge before the speedy trial period expires, the state is entitled to the recapture pei’iod, even if the defendant does not receive actual notice of the refiled charge until after the speedy trial period expires.” Id. at 167. We distinguished this situation from Morris, where the State made no effort to notify the defendant of the refiled charges within the demand period. Id. Ingraham noted that what would constitute a sufficient attempt to notify the defendant would require a case-by-case analysis, but such a requirement would “balance the interests of justice between the state and defendants.” Id. at 168. But Naveira specifically rejected an interpretation of the rule which would require a case-by-case approach to determining whether the State is entitled to the recapture period. Naveira, 873 So.2d at 309-10.

We applied Ingraham in Reid v. State, 114 So.3d 277 (Fla. 4th DCA 2013). We noted that Morris remained valid authority to deny the State the recapture period when no notice was given to the defendant within the speedy trial period of the filed charges. Id. at 279. But, reviewing the specific facts found by the trial court in the case, we concluded that the State had made some effort to notify the defendant, thus allowing the State the recapture period. Id. Again, this case-by-case analysis of whether the State has made sufficient effort to notify the defendant of the charges within the speedy trial period would put the State in the position of not being able to- predict with clarity whether its efforts were sufficient to allow it the recapture period for trying, the defendant, contrary to Naveim’s contention that such case-by-case review makes the availability of recapture for the State unclear in these circumstances. Naveira, 873 So.2d at 309-10.

All.of our cases are also premised on an assumption. that the defendant must be notified of the charges within the speedy trial period. But, in Naveira, the defendant was not notified of the charges within the speedy trial period, as the State filed the information on the last day of the period. There is no provision in the rule which requires notice to the defendant within that period, and, as Nelson and Naveira explain, the defendant must follow those procedures. By requiring that the defendant be notified of the charges within the speedy trial period, our decisions have en-grafted on the rule an additional requirement, which is inconsistent with the reasoning of Nelson and Naveira. We thus recede from Morris, Thompson, Ingraham, and Reid.

(E) State v. Jimenez

In State v. Jimenez, 44 So.3d 1230 (Fla. 5th DCA 2010), the Fifth District pointed out the conflict between Nelson and Na-veira and our decisions, as well as others from the Second and Third Districts. Relying on Nels.on and Naveira, the court concluded that the mere failure to notify the defendant of the charges within the speedy trial period allows the defendant the remedies in the rule, not immediate discharge. Id. at 1236.

While we share the concern that it is unfair for the State to.file its charging document and then take no steps to serve or notify the defendant until weeks or months pass, the plain terms of the rule simply do not countenance an automatic discharge. Rather, except for certain enumerated circumstances, the State is entitled to the recapture-period.

Id. We agree with Jimenez and align ourselves with it.

As Jimenez noted, a defendant can always raise a constitutional right to a speedy trial where the state has delayed notification, to the defendant’s prejudice. Id. at 1237. To obtain a discharge based upon the constitutional right to a speedy trial, “there are fqur factors that are weighed and considered: length of the delay, who is more responsible for the delay (the State or defendant), the defendant’s assertion of his right to a speedy- trial, and prejudice.” Id. (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Those factors are “balanced” and based upon an “ad hoc” determination. Id. This is entirely different than the application of the fixed provisions of rule 3.191.,

(F) Certification of Conflict

Jimenez also noted that various other opinions of courts around the state have also followed the Morris line of reasoning and denied the State the recapture period where the defendant was not notified of the charges within the speedy trial period, including Puzio v. State, 969 So.2d 1197 (Fla. 1st DCA 2007); State v. McCullers, 932 So.2d 373 (Fla. 2d DCA 2006); Cordero v. State, 686 So.2d 737 (Fla. 3d DCA 1997); and State v. Gantt, 688 So.2d 1012 (Fla. 3d DCA 1997). Jimenez, 44 So.3d at 1237. Most recently, the .Second District again relied on these precedents to require immediate discharge of the. defendant without a recapture period in State v. Drake, 209 So.3d 650 (Fla. 2d DCA Feb. 1, 2017). As did the Jimenez court, we certify express conflict with all of the foregoing cases.

Reversed and remanded for reinstatement of the charges and further proceedings.

Ciklin, O.J., Gross, Taylor, May, . Damoorgian, Gerber, Levine, Conner, Forst, Klingensmith and Kuntz, JJ., concur. ■

      . Rule 3.191(f) provides that where a misdemeanor and felony are consolidated for disposition, the misdemeanor is governed by the felony speedy trial time.

      . We assume that the Clerk must have "sealed” the record pursuant to Florida Rule of Criminal Procedure 3.140(7), which provides:
      Unless the defendant named therein has been previously released on a citation, order to appear, personal recognizance, or bail, or has been summoned to appear, or unless otherwise ordered by the court having jurisdiction, all indictments or informa-tions and the records thereof shall be in the custody of the clerk of the court to which they are presented and shall not be inspected by any person other than the judge, clerk, attorney general, and prosecuting attorney until the defendant is in custody or until 1 year has elapsed between the return of an indictment or the filing of an information, after which time they shall be opened for public inspection.
      Fla. R. Crim P. 3.140(7). If that was the authority for sealing the information, then it appears that the Clerk should not have sealed this information, as appellee had already been arrested and released on bail in this incident.


text:
    Brandon BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2807
    District Court of Appeal of Florida, Fourth District.
    [May 3, 2017]

      Martin P. McDonnell, Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Brandon Bishop appeals the summary denial of his rule 3.850 motion for post-conviction relief. We conclude that three of Bishop’s claims require an evidentiary hearing because they are legally sufficient and not conclusively refuted by the record provided. We affirm the denial of Bishop’s remaining claims without comment.

Following a jury trial in 2009, Bishop was convicted of attempted first degree murder and sentenced to ninety-nine years in prison. We affirmed the conviction and sentence on direct appeal. Bishop v. State, 100 So.3d 1192 (Fla. 4th DCA 2012). Bishop timely filed a rule 3.850 motion, which the trial court summarily denied based on the State’s response. Only five of the original eleven claims of ineffective assistance of counsel are preserved on appeal. See Hammond v. State, 34 So.3d 58, 59 (Fla. 4th DCA 2010).

Our standard of review is well-established:

To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.

Peede v. State, 748 So.2d 253, 257 (Fla. 1999) (citation omitted) (citing Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla. 1989)). We are cognizant that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). However, such a determination generally requires an evidentiary hearing. Washington v. State, 187 So.3d 244 (Fla. 4th DCA 2015).

We conclude that Bishop is entitled to an evidentiary hearing on the following three claims: (1) counsel was ineffective for failing to move to disqualify the trial judge on the ground that he had improper communications with the victim’s family; (2) counsel was ineffective for failing to have Bishop’s competency evaluated at the time of the trial; and (3) counsel was ineffective for failing to adequately advise Bishop regarding his right to exclude evidence of his invocation of his right to counsel upon arrest. These claims are legally sufficient and are not conclusively refuted by the record provided.

We therefore reverse and remand for an evidentiary hearing as to the three claims set forth above. We affirm the summary denial of Bishop’s remaining claims without comment.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR, FORST and KLINGENSMITH, JJ., concur.


author: Forst, J.

text:
    Heidi CHRISTAKIS, Appellant, v. TIVOLI TERRACE, LLC, Appellee.
    No. 4D16-1890
    District Court of Appeal of Florida, Fourth District.
    [May 10, 2017]
    Justin R. Parafinczuk and Marcus J. Susen of Koch Parafinczuk & Wolf, P.A., Fort Lauderdale, for appellant.
    Eduardo Cosío and Julie Bork Glassman of Cosío Law Group, Coral Gables, for appellee.
   Forst, J.

tiThis case comes to us for the second time on appeal. In its first appearance, we reversed the trial court’s judgment notwithstanding the verdict, -holding that there was conflicting evidence as to the cause of Appellant Heidi Christakis’s injuries. Christakis v. Tivoli Terrace, LLC, 181 So.3d 579, 579-80 (Fla. 4th DCA 2016). Importantly for present purposes, at no point during that prior appeal did Appellant make any suggestion to this Court that there was any error in the jury’s award of damages; her sole argument was that the trial court erred in its determination regarding causation. In the instant appeal, Appellant argues that, in the proceedings following this Court’s remand, the trial court erred by denying her motion for new trial which was based on the claim that the jury erred in awarding her no damages for past pain and suffering. We need not comment on the merits of this claim, however, because we hold that Appellant abandoned her motion for new trial upon filing her first notice of appeal.

Background

Prior to Appellant’s first appeal, the jury had found that Appellee Tivoli Terrace, LLC, was 10% liable and Appellant was 90% liable for her negligence claim. The jury determined that Appellant had paid approximately $90,000 for past medical expenses, but suffered $0 worth of past pain damages. The trial court entered an order directing a verdict in favor of Appel-lee on the issue of negligence, finding that Appellee was not the cause of Appellant’s injuries at all. Appellant moved for reconsideration of this order and for a new trial on pain damages. The trial court denied Appellant’s motion for reconsideration of the directed verdict order, but never ruled on the motion for new trial on damages. Appellant filed an appeal in September 2014, generating the first case discussed above. Again, we emphasize that at no point during the first appeal was the issue of damages ever raised; the sole error presented to this Court was the issue of causation. Our opinion in the first appeal was released on January 6, 2016, reversing the trial court’s entry of ‘directed verdict and remanding “for entry of a judgment upon the jury verdict.” Christakis, 181 So.3d at 580. Following the release of that opinion, Appellant filed in the trial court a renewed motion for new trial on pain damages. The trial court denied that motion without explanation and entered a new final ' judgment in accordance with the jury’s original verdict. Appellant now appeals the denial of her renewed motion for new trial.

Analysis

On January 1, 2015, Florida Rule of Appellate Procedure 9.020(i)(3) was amended. Prior to that date, it read in relevant part “[i]f [a motion for new trial has] been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned.” In re Amendments to Fla. Rules of Appellate Procedure, 183 So.3d 245, 249 (Fla. 2014) (emphasis added). The January 2015 amendment changed this rule to read “[i]f [a motion for new trial has] been filed and a notice of appeal is filed before the filing or a signed, written order disposing of all such motions, the appeal shall be held in abeyance until the filing of a signed, written order disposing of the last such motion.” Id. (emphasis added).

Although there is a presumption that a change in law has only prospective application, this presumption does not exist for “remedial” legislation. Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla. 1994). But legal changes that “accomplish!] a remedial purpose by creating substantive new rights” maintain the presumption of prospective application only. Id. (citing City of Lakeland v. Catinella, 129 So.2d 133, 136 (Fla. 1961)). Appellant’s argument that the amendment here did not grant her a new right is without merit. In September 2014, Appellant had abandoned her right to have her motion for new trial heard, and-instead had only the right to challenge the judgment on appeal. On January 1, 2015, per her argument, she did have the right to have her motion for new trial heard. This would have been a new right, and therefore the presumption is that the amendment does not have retroactive effect, to apply to Appellant’s case.

We therefore hold that the January 1, 2015' amendment to Florida Rule of Appellate Procedure 9,020(i)(3) does not have retroactive effect to undo the abandonment of a motion when the notice of appeal was filed before January 1, 2015. Appellant’s September 2014 notice of appeal abandoned her motion for new' trial, and her failure to raise the issue of damages in her 'first appeal waives her argument on that point. Our decision is in accord with an earlier opinion of this Court and at least two other District Courts of Appeal opinions, each stating in a footnote that the case was not controlled by the amended rule, as the rule was amended during the pendency of the appeal. See Johnson v. State, 154 So.3d 1184, 1186 n.1 (Fla. 4th DCA 2015); Wallen v. Tyson, 174 So.3d 1058, 1060 n.1 (Fla. 5th DCA 2015); Dep’t of Revenue v. Vanambwrg, 174 So.3d 640, 642 & n.1 (Fla. 1st DCA 2015).

Conclusion

The January 1, 2015 amendment to Rule 9.020(i)(3) does not have retroactive effect to revive a motion previously abandoned through the filing of a notice of appeal. We therefore affirm.

Affirmed.

Damoorgian and Gerber, JJ., concur. -

      . We note that this opinion does, not address whether the amendment would have applied to Appellant’s case had her notice of appeal been filed after January 1, 2015. Neither the fact that the case was pending at the time of the amendment nor the fact that the motion itself was filed before the time of the amendment is dispositive here; our holding is because Appellant’s notice of appeal had been filed before the date of the amendment.


text:
    Alex U. SIRMONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1538
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2017]

      Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Alex Sirmons appeals his convictions and sentences for four counts, including robbery with a deadly weapon. We affirm without comment Appellant’s claims of error with regard to the admission of certain evidence and the trial court’s exercise of its discretion in denying Appellant’s request for a surrebuttal argument. We find merit, however, in Appellant’s claims of error with regard to his motion for judgment of acquittal for grand theft and an error on his scoresheet. We therefore reverse and remand.

Background

The victim in this case testified that Appellant and several other individuals jumped him, Appellant hit him in the face with a gun, and the victim’s cell phone and thirty dollars in cash were stolen. In addition to counts of robbery with a deadly weapon, aggravated assault with a deadly weapon, and aggravated battery with a deadly weapon, Appellant was also charged with grand theft in the third degree, requiring the value of the theft to be at least $300. See § 812.014(c)l., Fla. Stat. As noted above, the State introduced evidence that thirty dollars in cash was stolen along with a cell phone. The only evidence of the phone’s value was the victim’s testimony that he paid “like 3 hundred” for the phone. A jury convicted Appellant on all four charges, including grand theft.

Prior to sentencing, a scoresheet was prepared, setting forth the four charges noted above, as well as an additional count of aggravated assault, a charge for which Appellant was not convicted. The score-sheet contained an additional eighteen points for this erroneously-included charge. These additional points pushed Appellant’s minimum sentence from the correct 86,85 months to an incorrect 100.35 months for all four of the charges that resulted in convictions, and caused the maximum sentence for two of the charges to be raised by the same amount. The State concedes that the scoresheet was erroneously calculated, but maintains it was harmless error as Appellant’s sentences would have been the same even without the error.

Analysis

The value of property for grand theft must be shown either through direct testimony of the market value or “through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase.” Mansfield v. State, 954 So.2d 74, 76-77 (Fla. 4th DCA 2007) (quoting Gilbert v. State, 817 So.2d 980, 982 (Fla. 4th DCA 2002)). The State’s rebanee solely on the victim’s “like 3 hundred” estimation was not competent, substantial evidence of the phone’s value being over the necessary $270 ($300-$30). The trial court therefore erred in denying Appellant’s motion for judgment of acquittal on this count. We accordingly reverse and remand for the trial court to enter a judgment of guilt of petit theft rather than grand theft. See Gilbert, 817 So.2d at 983.

As we are remanding this case for re-sentencing on the theft charge (as it is being reduced from grand theft to petit theft), the trial court is directed to correct the error with the original scoresheet and sentence Appellant anew with respect to all four of the convictions, with petit theft replacing the grand theft conviction.

Conclusion

Appellant’s conviction for grand theft is reversed and remanded with instructions to impose a judgment of guilt of petit theft. Appellant is also entitled to a new sentencing hearing on all counts, utilizing a corrected scoresheet.

Reversed and remanded.

Damoorgian and Gerber, JJ., concur.


text:
    David LISHINSKY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-2531
    District Court of Appeal of Florida, Fourth District.
    February 15, 2017
    Richard L. Rosenbaum of Law Offices of Richard Rosenbaum, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

David Lishinsky appeals the trial court’s order revoking his probation in Case Nos. 11-6410CF1QA, 12-668CF10A and 13-10939CF10A. As the State concedes, the probation affidavit is not included in the record on appeal. However, because the transcript of the revocation hearing indicates the possible existence of the probation affidavit, we reverse and remand to the trial court to conduct further proceedings directed at locating and considering the probation affidavit. See Howard v. State, 883 So.2d 879, 880 (Fla. 4th DCA 2004).

Reversed and Remanded.

Levine, Klingensmith and Kuntz, JJ., concur.


text:
    WELLS FARGO BANK, N.A., Appellant, v. Bryan AYERS, Mindy L. Ayers, Mortgage Electronic Registration Systems, Inc. as Nominee for Mortgage Movers, Inc., The Turtle Run Homeowners’ Association, Inc., Any and All Unknown Parties Claiming by, through, Under, or Against the Herein Named Individual Defendant(s) who are not known to be Dead or Alive, Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devises, Grantees, or Other Claimants, Appellees.
    No. 4D16-288
    District Court of Appeal of Florida, Fourth District.
    March 29, 2017
    Michael K. Winston and Dean A. Mo-rande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.
    Bruce C. Botsford of Bruce Botsford, P.A., Fort Lauderdale, for Appellees Bryan Ayers and Mindy Ayers.
   Per Curiam.

In this mortgage foreclosure action, Wells Fargo appeals from a final judgment entered upon an order granting the borrowers’ motion for an involuntary dismissal. We conclude that Wells Fargo waived any argument that the trial court erred iri involuntarily dismissing the action before Wells Fargo rested its case. However, because Wells Fargo submitted evidence in support of its lost note claim that was sufficient to preclude an involuntary- dismissal, we reverse the final judgment and remand for a new trial. '

In December 2010, Wells Fargo filed a foreclosure complaint against the borrowers. Attached to the complaint were copies of the mortgage and note containing an allonge indorsed in blank. Wells Fargo later amended the complaint to include a count to reestablish the lost note. The amended complaint also included a- lost note affidavit, as well as a copy of the note (with the allonge indorsed in blank). The lost note affidavit stated that, as part of the search for the lost note, Wells Fargo “check[ed] with [its], current and/or prior attorney.”

At trial, Wells Fargo called as its sole witness a bank employee whose duties included reviewing and verifying business records. The employee, a loan verification analyst, testified that in 2010, before the filing of the foreclosure suit, Wells Fargo sent the original note to its former attorney. The witness stated that the note was lost at some point’ after it was sent to its former attorney!

In explaining Wells Fargo’s procedures for determining whether a note is lost, the witness testified that the bank would check all areas where the note could be, including with prior counsel, previous court files, and the bank’s internal vault, before deeming the note lost. He testified that the bank followed the same routine practice in this case. The trial court then received a copy of the note into evidence, without objection.

The borrowers’ counsel objected to the reestablishment of a lost note, arguing that Wells Fargo could not prove that the noté was indeed lost. The borrowers’ counsel argued to the trial court that there was -no direct evidence that Wells Fargo contacted its former attorney, who worked for a now defunct law firm. He then asked the court for an involuntary dismissal because Wells Fargo had failed to prove its case. The court agreed, and asked counsel if he was making the motion at that time. The borrowers’ counsel replied: “I would. ’Well, they haven’t concluded their case, so I will certainly wait for them', but I would move for an involuntary dismissal, Your Honor.”

The trial court allowed Wells Fargo to further question its witness, telling Wells Fargo’s counsel: “You want to go through it again and prove it? I’ll give you that chance. Go through it again.” During the continued questioning, the witness again confirmed that Wells Fargo followed its routine procedure of contacting the former law firm to locate the- lost note. After questioning the witness, Wells Fargo’s counsel immediately began arguing that the evidence established the note was lost.

The borrowers again moved for an involuntary dismissal, maintaining their arguments that the note could still be with the former- law firm and that Wells Fargo could not offer any personal testimony that the former law firm was contacted.

The trial court squarely asked: “Okay. Anything further?” The borrowers’ counsel declined to present any. further argument. The trial court then stated: “I don’t think there’s any more to discuss.” Wells Fargo’s counsel .replied: “Not based on. that, Your Honor, no.” The trial court then granted the motion for involuntary dismissal.

On appeal, Wells Fargo argues that reversal is required because the trial court granted an involuntary dismissal before the close of its case and because it submitted unrebutted routine evidence that it contacted its prior law firm to search for the note.

The standard of review applicable to a trial court’s ruling on a motion for involuntary dismissal is de novo. Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014). ‘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 .... ” Deutsche Bank Nat’l Tr. Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012).

Florida Rule of Civil Procedure 1.420(b) governs involuntary dismissals and provides in relevant part:

After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief

“We have repeatedly held that a trial court may not involuntarily dismiss an action before the plaintiff has rested its case.” Fischer v. Fischer, 195 So.3d 1170, 1172 (Fla. 4th DCA 2016). Under the facts of this case, however, we agree with the borrowers that Wells Fargo waived the right to insist upon strict compliance with the applicable procedural rule. See Williams v. Salem Free Will Baptist Church, 784 So.2d 1232 (Fla. 1st DCA 2001).

In Williams, the First District acknowledged that the trial court had committed a procedural error by entering a directed verdict in favor of the plaintiff at the close of the plaintiff’s case but before the defendant had presented his case in chief. Id. at 1232. However, the appellate court found that the defendant had waived strict compliance with this procedural rule by failing to object to the procedure employed by the trial court. Id. at 1234-35. The court emphasized that defendant’s counsel “did nothing more in opposition to the directed verdict motion than make a vague comment about the evidence, and completely failed to advise the court that [the defendant] intended to put on additional evidence that would contradict the evidence put on by the [plaintiff].” Id. at 1234. The court further noted that “[a] procedural error not timely raised in the trial court is waived unless the party asserting the error can demonstrate that such a waiver would be a denial of due process.” Id.

Here, Wells Fargo waived the right to insist upon strict compliance with rule 1.420(b). Not only did Wells Fargo fail to object to the trial court’s procedure, but it also failed to advise the trial court that it intended to present additional evidence. Indeed, immediately before the trial court granted the involuntary dismissal, Wells Fargo indicated that it did not have anything further to present. Moreover, the trial court had already given Wells Fargo two opportunities to provide testimony on the lost note issue. The record therefore demonstrates that the trial court gave Wells Fargo ample opportunity to be heard. On these facts, Wells Fargo has not demonstrated how its procedural due process rights were violated as a result of this unpreserved procedural error.

On the merits, however, we conclude that the trial court erred in granting involuntary dismissal based on its finding that Wells Fargo presented no evidence that it contacted its former counsel to determine whether the note was lost. Wells Fargo did present unrebutted, competent evidence that it contacted its former attorney when searching for the lost note. Specifically, Wells Fargo’s witness testified that: (1) where a note cannot be found after it was sent to a law firm, Wells Fargo’s routine practice involves contacting that law firm, and (2) Wells Fargo followed that routine practice in this case. This evidence was competent evidence of routine practice under Florida’s Evidence Code, see § 90.406, Fla. Stat. (2015), and was sufficient to preclude an involuntary dismissal, as the trial court was required to view the evidence and all inferences of fact in a light most favorable to Wells Fargo, the nonmoving party.

Accordingly, we reverse the final judgment entered upon the order granting involuntary dismissal and remand for a new trial.

Reversed and Remanded.

Taylor, Conner and Forst, JJ,, concur.


author: PALMER, J.

text:
    Timothy BUSCH, Appellant, v. LENNAR HOMES, LLC, Appellee.
    Case No. 5D16-1626
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017
    Rehearing and Rehearing En Banc Denied May 30, 2017

      Matthew L. Wilson and Joshua E. Burnett of Burnett Wilson Reeder, Tampa, for Appellant. ' '
    Charles D. Harper, Christopher L. Griffin and Adam R. Alaee of Foley & Lardner LLP, Tampa, for Appellee.
   PALMER, J.

Timothy Busch (Homeowner) appeals the trial court’s order dismissing his complaint with prejudice based on the expiration of the ten-year statute of repose applicable to construction defect claims. See § 95.11(3)(c), Fla. Stat. (2015). Because the complaint does: not conclusively establish that the statute of repose had expired prior to the, filing of Homeowner’s complaint, we reverse. :

When ruling on a motion to dismiss a complaint, the trial court must look no further than the complaint and its attachments and must treat as true all of the complaint’s well-pleaded allegations. Morin v. Florida Power & Light Co., 963 So.2d 258, 260 (Fla. 3d DCA 2007). A trial court’s determination to dismiss -a complaint, based on a matter of law, is subject to de novo review. Saltponds Condo. Ass’n v. Walbridge Aldinger Co., 979 So.2d 1240, 1241 (Fla. 3d DCA 2008). Thus, when considering a trial court’s dismissal of a complaint on the basis of the statute of repose, the appellate court’s focus is on whether the factual allegations set forth in the complaint and its attachments establish that the claims for relief therein are time barred. Ambrose v. Catholic Soc. Serv., Inc., 736 So.2d 146, 149 (Fla. 5th DCA 1999). Of importance, a plaintiff is not required to anticipate affirmative defenses, including the statute of repose, with" specific allegations in the complaint in order to survive a dismissal motion. Williams v. City of Jacksonville, 191 So.3d 925, 928 (Fla. 1st DCA 2016).

Pursuant to the Purchase and Sale Agreement (the contract)' between Homeowner and Lennar Homes (Builder), Homeowner agreed to pay Builder for the construction of a home. Nearly ten years after closing on the home, Homeowner served a Chapter 558 notice on Builder concerning several alleged construction defects. A short time later, but more than ten years after closing, Homeowner filed a complaint alleging multiple construction defects attributable to Builder. Relying on section 95.11(3)(c), Florida’s statute of repose, Builder filed a motion to dismiss the complaint. This statute provides:

9S.11 Actions other, than for recovery of real property shall be commenced as follows:
(3) Within four years.—
(c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction 'if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.

§ 95,ll(3)(c) (emphasis added). In seeking dismissal, Builder argued that the parties’ contract was completed at closing and, thus, the statute of repose barred Homeowner’s action because the complaint was filed more than ten years after closing.

After conducting a hearing, the trial court granted Builder’s motion and dismissed the complaint. Homeowner challenges this ruling, arguing that-, the trial court erred in dismissing his complaint because it did not conclusively establish .that the contract was completed at closing. We agree.

A contract is not complete until “both sides of the contract” have been performed. Cypress Fairway Condo. v. Bergeron Const. Co., 164 So.3d 706 (Fla. 6th DCA 2016). Here, the contract, which was attached to the complaint, provided:

10. Inspection Prior to Closing
10.1 Purchaser shall be given an opportunity to examine the Home with Seller’s representative prior to closing of title on a date and time scheduled by Seller. At that time, if any items are noted, Purchaser shall present to Seller an inspection statement signed by Purchaser, if any items noted are actually defective in workmanship or materials in Seller’s opinion in accordance with construction standards prevalent for a similar home in the county where the community is located, Seller will be obligated to correct those items at Seller’s cost. A second inspection of the home will be conducted prior to closing at which time the Purchaser will be given an opportunity to examine the home with Seller’s representative to acknowledge that items listed on- the inspection statement prepared after the first inspection have been corrected. Any remaining items that Seller has agreed to correct will be corrected by Seller at Seller’s sole cost and expense prior to closing or at Seller’s option within a reasonable time after closing.

Because the contract expressly contemplated that closing could occur even- if work required by the contract remained incomplete, and the complaint did not allege that no work was completed after closing, the allegations of the complaint do not conclusively establish that the contract was completed upon closing. Accordingly, the trial court erred in dismissing the complaint. See Allan & Conrad, Inc. v. Univ. of Cent. Florida, 961 So.2d 1083 (Fla. 5th DCA 2007); Clearwater Hous. Auth. v. Future Capital Holding Corp., 126 So.3d 410 (Fla. 2d DCA 2013).

REVERSED and REMANDED.

ORFINGER, J., and WEISS, K, Associate Judge, concur.

      . Chapter 558, Florida's construction defect statute, requires a claimant to serve a written notice of claim on the party believed to.be responsible for the defect 60 days prior to filing suit. See §§ 558.003; 558.004(1), Fla. Stat. (2015).

      . Homeowner also argues that he commenced the action by serving a Chapter 558 notice and that the statute of repose was tolled until he filed suit, relying on the Florida Supreme Court’s decision in the medical malpractice case of Musculoskeletal Institute Chartered v. Parham, 745 So.2d 946 (Fla. 1999). We reject this argument because there is an important distinction between the two statutory schemes. If a potential medical malpractice litigant files suit prematurely, the case is subject to dismissal; however, if a claimant asserting a construction defect files suit prematurely, the lawsuit is simply stayed. See § 558.003, Notably, the decision in Par-ham was based in large part on the concern that compliance with the medical malpractice presuit requirements could result in a potential litigant’s cause of action being forever barred by the statute of repose, constituting an "unconstitutional impediment to access to the courts.” 745 So.2d at 952, The stay provision thus ensures that section 558.004’s requirements do not infringe upon a claimant’s right to access the courts.


author: SILBERMAN, Judge.

text:
    Akhnoukh A. AKHNOUKH and Simon Bishoy Akhnoukh, Petitioners, v. Michelle BENVENUTO, Respondent.
    Case No. 2D16-4018
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017.

      Jeffrey D. Jensen of Unice Salzman Jensen, P.A., Trinity, for Petitioners.
    Courtney A. Umberger of Barnes Trial Group, Tampa, for Respondent.
   SILBERMAN, Judge.

In this negligence action arising from a motor vehicle accident, Akhnoukh A. Akhnoukh and his son, Simon Bishoy Akhnoukh, the Defendants below (collectively, the Defendants), seek certiorari review of the trial court’s nonfinal order that grants Plaintiff Michelle Benvenuto’s motion for a protective order to prohibit the deposition of a witness, her minor son. We grant certiorari relief and quash the order that prohibits the deposition.

On May 10, 2014, Benvenuto was stopped at the exit of a gas station, waiting to turn right onto U.S. 19. While stopped in the driveway, Benvenuto’s vehicle was rear-ended by a vehicle operated by Simon Akhnoukh and owned by his father. Ben-venuto’s son was the only passenger in the vehicle with Benvenuto and was sitting in the front passenger seat. He was eight years old at the time of the accident.

Benvenuto subsequently filed her negligence action seeking damages for personal injuries. Among the Defendants’ affirmative defenses were that Benvenuto was negligent and that she failed to use a fully operational seatbelt. The Defendants sought to depose Benvenuto’s minor son, and Benvenuto filed a motion for protective order. The motion alleged that the minor was not injured in the accident or a party to the lawsuit and that he could not contribute any meaningful testimony relevant to the action. The motion further alleged that to require the minor to submit to a deposition would “result in unnecessary annoyance, embarrassment, burden, and expense.”

In her deposition of June 14, 2016, Ben-venuto stated that she and her son lived together. He remembered the details of the accident, but they had not spoken about it recently. She testified that she was at a complete stop when her vehicle was rear-ended and that she was wearing her seatbelt. Benvenuto also described the pain she was experiencing to her neck and shoulder every day. But, since the accident, she had gone to Busch Gardens with her son and ridden adult rollercoasters; however, she could not remember the names of the rollercoasters that she rode.

On August 24, 2016, the trial court conducted a hearing on the motion for protective order. At the hearing, Benvenuto’s counsel asserted that the minor, was only-eight years old at the time of the accident and was eleven years old at the time of the hearing. Counsel sought a protective order “just because of his age, lack of maturity, experience” and argued that “minors are especially susceptible to intimidation during a deposition.” Counsel further questioned what the minor could “provide in terms of clarity” in this rear-end crash.

Defense counsel stated that the minor was an eyewitness to the accident and was sitting in the front passenger seat. Thus, counsel asserted that the minor could “testify as .to the forces of impact and the moments leading up to the accident.” Also, the minor could “testify about the state of [his mother’s] general health and the activities that she does on a day-to-day basis,”

The trial court granted the motion for protective order and stated the following:

I don’t think an 11-year-old who was eight at the time should be questioned in this case, a car accident case, and then get into the state of health of' his mom. So I’m going to grant the motion. That’s without prejudice. If we get close to trial and you go, Judge, we’ve got to have his testimony because of these incredible conflicts on this one issue, but I’m not going to have a kid talking about his mom’s health either.

The trial court did not hear any evidence concerning the minor’s lack of maturity, experience, or how the deposition could be detrimental to him. The Defendants seek certiorari review of the nonfinal order that grants- the motion for protective order without prejudice.

To be entitled to certiorari relief from a pretrial discovery order the petitioner must show “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Rogan v. Oliver, 110 So.3d 980, 982 (Fla. 2d DCA 2013) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995)). The second and third prongs are jurisdictional. Id. Certiorari jurisdiction generally exists to review the denial of a motion to compel the deposition of a material witness. Id.; Nucci v. Simmons, 20 So.3d 388, 390 (Fla. 2d DCA 2009).

In circumstances involving the denial of the right to take testimony of an alleged material witness, it has been recognized that such a denial cannot be remedied on appeal since “there would be no practical way to determine after judgment what the testimony would be or how it would affect the result.”

Nucci, 20 So.3d at 390 (quoting Medero v. Fla. Power & Light Co., 658 So.2d 566, 567 (Fla. 3d DCA 1995)).

Benvenuto contends that certiorari review is premature because the grant of the protective order is without prejudice and thus does not foreclose a deposition of her son at a later time. However, the trial court ruled that it would not allow a deposition on issues of the mother’s health and that, in any event, a deposition would only be allowed if there were, for example, “incredible conflicts on this one issue.” Thus, it appears that the trial court would not allow a deposition under circumstances when the defense would be entitled to take one of a material witness.

Florida Rule of Civil Procedure 1.310(a) provides that after commencement of the action a party may take .a deposition of any person. Rule 1.280(c) provides that a party or person from whom discovery is sought may seek a protective' order and that the trial court may issue an order that denies or restricts discovery “for good cause shown.” When “justice requires,” the court may issue , an “order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. The party seeking the protective order has the burden to show good cause. Bush v. Schiavo, 866 So.2d 136, 138 (Fla. 2d DCA 2004).

“When a party has been denied the right to depose an alleged material witness without a finding of good cause to preclude the deposition, the trial court departs from the essential requirements of law. See Nucci, 20 So.3d at 391; Medero, 658 So.2d at 567. “A material witness is one who possesses information ‘going to some fact affecting the merits of the cause and about which no other mtness might testify.’ ” Nucci, 20 So.3d at 391 (quoting Sardinas v. Lagares, 805 So.2d 1024, 1026 (Fla. 3d DCA 2001)).

Here, it appears that the minor is a material witness as to the circumstances in Benvenuto’s vehicle at the time of impact, including the force of impact and whether she was wearing a seat belt. Benvenuto contends that her son is not a material witness because the Defendants can obtain the same information from her, essentially forcing the Defendants to take Benvenu-to’s view of the circumstances without the ability to verify the accuracy of her assertions. This court has found a witness to be material even when the relevant information could be- obtained from a party. See Nucci, 20 So.3d at 390. Although Dr. Nuc-ci, the defendant, was aware of the negotiations between himself and Attorney Tin-dall regarding a billing arrangement, this court determined that Tindall met the definition of a material witness. Id at 390-91. Similarly, the minor is a material witness to the circumstances in Benvenuto’s vehicle at the time of the accident.

In addition, the minor is the only other person who lives with Benvenuto, and he would have unique knowledge of his mother’s day-to-day activities and how the accident affected her. Furthermore, Benvenu-to was unable to state at deposition which rollercoasters she rode after the accident. The Defendants suggest- that the minor may know which rollercoasters he rode with his mother. This would allow the Defendants to establish that despite her injuries and ongoing pain Benvenuto rode rol-lercoasters of specific speeds and G-force intensities.

The trial court did not require Benvenu-to to establish good cause for the protective order. She based her argument on her son’s age, lack of maturity, and experience but provided no evidence. She also did not provide any evidence of how the taking of the deposition may be detrimental to her son. The trial court made no findings of good cause and departed from the essential requirements of law in prohibiting the deposition. See Nucci, 20 So.3d at 391; Medero, 658 So.2d at 567. Thus, we grant the petition and quash the trial court’s order granting the motion for protective order. Th¿ trial court in its discretion may take protective measures if necessary for the minor’s well-being, such as requiring that the deposition take place before the court or a magistrate.

Petition granted'and order quashed.

LaROSE and SLEET, JJ., Concur.


author: PER CURIAM.

text:
    Abraham COHEN, Appellant/Cross-Appellee, v. Avra JAIN, et al., Appellees/Cross-Appellants.
    Nos. 3D16-281 & 3D16-1297
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017
    Rehearing Denied May 26, 2017
    Stok Folk + Kon, Robert A. Stok and Joshua R. Kon, for appellanVcross-appel-lee.
    Buchanan Ingersoll & Rooney, Jennifer Olmedo-Rodriguez, Richard A. Morgan and Matthew J. Feeley, for appel-lees/eross-appellants.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

In these consolidated appeals, the parties each seek review of portions of the post-trial final judgment. Appellant Abraham Cohen appeals that portion of an otherwise favorable final judgment which awarded only simple interest (instead of compound interest) under the promissory note at issue. Appellees Avra Jain, Paul Murphy and H-H Investments, LLC (collectively, Jain and Murphy) cross-appeal the final judgment, alleging that the trial court committed several errors in the course of the trial. Murphy and Jain also appeal the trial court’s order denying their motion to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540. We affirm both of the final orders on appeal.

As to Cohen’s appeal from that portion of the final judgment awarding only simple interest, it is well-settled that where the note contains no express provision for the compounding of interest, the holder of the note is entitled only to simple interest. Stramondo v. Jet 1, Inc., 865 So.2d 632 (Fla. 2d DCA 2004); Pitts v. Pastore, 561 So.2d 297 (Fla. 2d DCA 1990); PDGS, Ltd. v. Motwani, 729 So.2d 399 (Fla. 4th DCA 1998); Lyons v. Wyman, 658 So.2d 1104 (Fla. 4th DCA 1995).

With regard to Jain and Murphy’s appeal of the final judgment, we find that the trial court did not err in its evidentiary rulings excluding certain evidence and, to the extent that any evidence was erroneously excluded, such error was harmless. See Special v. West Boca Med. Ctr., 160 So.3d 1251 (Fla. 2014) (applying harmless error standard in a civil appeal, requiring the beneficiary of the error to establish that there is no reasonable probability that the error contributed to the verdict). We also hold that the trial court properly denied Jain and Murphy’s motion for directed verdict and properly granted Cohen’s motion for directed verdict on Jain and Murphy’s affirmative defenses and counterclaims. See Sanders v. ERP Operating Ltd. P’ship, 157 So.3d 273, 277 (Fla. 2015) (holding that an appellate court, viewing the evidence and all inferences of fact in light most favorable to non-moving party, can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the non-moving party); Tylinski v. Klein Auto., Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012) (recognizing that “a motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.”)

Finally, we cannot say that the trial court abused its discretion in denying Jain and Murphy’s motion for relief from judgment under rule 1.540. See LPP Mortg. Ltd. v. Bank of America, N.A., 826 So.2d 462, 463-64 (Fla. 3d DCA 2002) (applying gross abuse of discretion standard in reviewing trial court’s ruling on a motion for relief from judgment under rule 1.540 and quoting Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla. 3d DCA 1978) (“The discretion reposed in the trial judge by Fla. R. Civ. P. 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion.”))

Affirmed.

      . We affirm without further discussion the other claims raised by Jain and Murphy's cross-appeal.


author: FERNANDEZ, J.

text:
    CORAL GABLES IMPORTS, INC., Appellant, v. Ricardo SUAREZ, Appellee.
    No. 3D16-849
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017

      Jesse Dean-Kluger, P.A., and Jesse Dean-Kluger, for appellant.
    MSP Recovery Law Firm and John H. Ruiz, Christine M. Lugo, and Shayna K. Hudson, for appellee.
    Before SUAREZ, C. J., and FERNANDEZ, and SCALES, JJ.
   FERNANDEZ, J.

Coral Gables Imports, Inc. appeals the trial court’s entry of an order granting appellee Ricardo Suarez’s Amended Motion to Vacate brder of Dismissal for Lack of Prosecution.' We affirm because Suarez correctly moved to vacate the dismissal order as void, pursuant to Florida Rule of Civil Procedure 1.540(b)(4), where the trial court entered the dismissal order without notice and the record reflected record activity.

This case arose from a Notice of Lack of Prosecution issued in accordance with the requirements of Florida Rule of Civil Procedure 1.420(e). Suarez initiated a .class action suit against Coral Gables Imports on September 23, 2004. On August 14, 2014, the Clerk of the Eleventh Judicial Circuit produced and docketed its Notice of Lack of Prosecution in which it, advised the trial court that no record activity had occurred in the case for the proceeding ten months. The trial court signed and served the Notice upon the parties on October 22, 2°14.

On September 11, 2014, unbeknownst to the trial court when it signed, and served the October 22,.,2014 Notice, Suarez had filed a Notice of Change of Address. The filing of the Notice of Change of Address had a twofold effect.- Since .the Notice of Lack of Prosecution had been produced on August 14, 2014, approximately one month before Suarez changed his. address, the Notice the trial court served on October 22, 2014 would not have reached Suarez because it would have been delivered to his old address.

Moreover, the Notice of Change of Address would have satisfied the record activity requirement of rule 1.420(e), thereby precluding dismissal of the action for lack of prosecution. See Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786 (Fla. 2011)(holding that any filing of record during the applicable time frame is sufficient to preclude dismissal).

There was no appearance at the December 4, 2014 hearing on the Notice of Lack of Prosecution. The trial court dismissed the action without prejudice for lack of prosecution on December 4, 2014.

Suarez moved to vacate the order of dismissal on January 27, 2016, approximately fourteen months after dismissal of the action. On February 1, 2016, Suarez filed an Amended Motion to Vacate Order of Dismissal for Lack of Prosecution, Suarez argued that he did not receive the trial court’s Notice of Lack of Prosecution and Notice of Hearing on the trial court’s Motion to Dismiss for Lack of Prosecution. Suarez further argued that there was record activity, namely his Notice of Change of Address, within the sixty-day period following the trial court’s Notice. The trial court granted the amended motion on March 8, 2016;

The standard of review for an order that rules on a motion for relief from judgment filed under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of the trial court’s diseretion. Foche Mort., LLC v. CitiMortgage, Inc., 163 So.3d 525, 526 (Fla. 3d DCA 2015). Florida Rule of Civil Procedure 1.540(b) provides grounds for relief from a final judgment, decree, order, or proceeding when the judgment or degree is void. Rule 1.540(b) specifically provides:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party .or a party’s legal representative -from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or-other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has'been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or . proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.
Writs of coram nobis, coram vobis, audi-ta querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribéd in these rules or by an independent action,

(emphasis added).

Suarez correctly argues on appeal that the judgment is void and that the one-year limitation to file a motion to vacate is inapplicable under rule 1.540(b)(4). In De La Osa, this Court affirmed the trial court’s order that vacated a dismissal where the plaintiff neither received notice to appear for trial nor a copy of the dismissal order. De La Osa v. Wells Fargo Bank, N.A., 208 So.3d 259 (Fla. 3d DCA 2016). We held on motion for rehearing en banc in that case that rule 1.540(b)(4) applies to final orders of -dismissal and concluded that the; final order was void. Id. at 264-65. The same reasoning applies here such that the one-year limitation to file a motion to vacate does not apply. The rule instead requires the motion to be filed within a reasonable time. Thus, Suarez’s motion to vacate filed approximately fourteen months after dismissal of the action was filed within a reasonable time.

We therefore affirm the order that vacated the dismissal; Suarez correctly moved to vacate the dismissal order a^ void, pursuant.to:.Florida Rule of Civil Procedure 1.540(b)(4), where the court entered the dismissal order without notice and the record reflected record activity.

Affirmed.

      . In his Amended Motion to Vacate Order of Dismissal for Lack of Prosecution, Suarez did not cite to rule 1.540(b)(4). His grounds for relief, however, fall squarely under this rule.