author: VILLANTI, Chief Judge.

text:
    The BANK OF NEW YORK MELLON f/k/a The Bank of New York, as Trustee for the Certificate Holders CWalt, Inc., Alternative Loan Trust 2006-19CB, Mortgage Pass-Through Certificates Series 2006-19CB, Appellant, v. Estate of James D. PETERSON a/k/a James Daniel Peterson, and Bank of America, N.A., Appellees.
    Case No. 2D16-2405
    District Court of Appeal of Florida, Second District.
    Opinion filed January 18, 2017.

      K. Denise Haire of Pearson Bitman, LLP, Maitland, for Appellant.
    Michael P. Fuino of Weidner Law, P.A., St. Petersburg, for Appellee Estate of James D. Peterson.
    No appearance for Appellee Bank of America, N.A.
   VILLANTI, Chief Judge.

The Bank of New York Mellon (“the Bank”) appeals the trial court’s post-judgment order that vacated a final judgment entered in foreclosure proceedings against the Estate of James D. Peterson. Because the Estate neither alleged nor proved a basis for vacating the final judgment, we reverse and remand for reinstatement of the final judgment.

The Bank originally filed its foreclosure action against James Daniel Peterson as mortgagor and Bank of America as a junior lienholder on June 10, 2009. Bank of America failed to appear or respond to the complaint, and a clerk’s default was entered against it on April 9, 2010. After Peterson died, his Estate was substituted as a defendant, and on June 23, 2015, the Estate and the Bank filed a joint stipulation for entry of a consent final judgment. Based on this stipulation by the Estate and on Bank of America’s earlier default, a final judgment of foreclosure was entered against both the Estate and Bank of America on June 26,2015.

Three months later, Bank of America filed an “unopposed” motion to set aside the clerk’s default against it while leaving the ensuing final judgment of foreclosure intact. Counsel for the Estate was apparently not consulted before this “unopposed” motion was filed; however, the certificate of service shows that the motion was in fact served on counsel for the Estate. The trial court subsequently granted the “unopposed” motion and set aside the clerk’s default against Bank of America, but the order doing so specifically provided that the final judgment of foreclosure was unaffected by the ruling and remained in force. This order, which had the effect of changing the final judgment against Bank of America from one based on its default to one based on its consent, was timely served on counsel for the Estate.

Despite being served with both the “unopposed” motion to set aside the default and the trial court’s order granting it, the Estate did not object or act immediately to address the ensuing order. Instead, on January 14, 2016, the Estate filed a motion to vacate the final judgment against it and cancel the impending foreclosure sale. The Estate’s unsworn motion did not identify any statute or rule as a basis for vacating the final judgment, alleging only that the Estate believed that it was legally impermissible for the trial court to vacate the clerk’s default against Bank of America unless the final judgment was first vacated. Additionally, the Estate cited no authority for this proposition, and it did not attach either affidavits or any other evidence to the motion.

At the subsequent hearing on the Estate’s motion, the Estate’s counsel argued:

But what we are here for and the reason why I’m attacking the final judgment is the nature of these ex parte proceedings. And, again, the docket reflects this document being filed three times as an ex parte motion.

The document to which the Estate referred as having been “filed three times as an ex parte motion” was the Bank’s motion to reschedule the foreclosure sale after the clerk’s default against Bank of America was set aside.. But contrary to the Estate’s assertions, the record reflects that the motion to reschedule the sale, while captioned as an “ex parte” motion, was actually served on counsel for the Estate each time it was filed. The Estate cited to no case law, statute, or rule in support of its position that the original consent final judgment against it should be vacated because a subsequent motion to reschedule a foreclosure sale was labelled “ex parte” when it was actually served on its counsel.

Also at the same hearing, the Estate produced a document that purported to be a 2012 recorded satisfaction of the Bank of America junior mortgage, and the Estate argued that the trial court should vacate the consent final judgment so that the import of this document could be investigated. However, the Estate did not explain why it had not addressed this satisfaction of the junior mortgage before it agreed to the consent final judgment in 2015.

In response to these arguments, the Bank pointed out that the final judgment against the Estate was based on its consent agreement and that the Estate had not argued any matter relating to its consent. The Bank argued that the motions attempting to reset the foreclosure sale months after the final judgment was entered — whether ex parte or not — had no bearing on the validity of the final judgment; The Bank also argued that the Estate had failed to identify in its motion any statute or rule under which it was entitled to have the final judgment vacated..Finally, the Bank argued that the Estate had not established that the act of setting aside the default against Bank of America was prejudicial to the Estate or any of its rights. In sum, the Bank argued that the Estate had not proved that it was legally entitled to the relief it sought. Without addressing the substance of these arguments, the trial court granted the Estate’s motion to vacate the consent final judgment. This appeal ensued,

We begin our analysis by noting that once a trial court has entered a final judgment, its jurisdiction to revisit that final judgment is limited.

, -“Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment.” Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1, 3 (Fla. 1970); Bank One, N.A. v. Batronie, 884 So.2d 346, 348 (Fla. 2d DCA 2004) (“After rendition of a final judgment, the trial court loses jurisdiction over the case except to enforce the judgment and except as provided by rule 1.540.”); see also Bane v. Bane, 775 So.2d 938, 941 (Fla. 2000) (“[T]he one exception to the rule of absolute finality is rule 1,540,- , ’which gives the court jurisdiction to relieve a party from the' act of finality in a narrow range of circumstances.’ “) (quoting Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla. 1986)).

Miami-Dade Cty. v. Second Sunrise Inv. Corp., 56 So.3d 82, 85 (Fla. 3d DCA 2011). Moreover, if a party is seeking relief under Florida Rule of Civil Procedure 1.540, “[t]he moving party must produce sufficient evidence of mistake, accident, excusable neglect or surprise as contemplated by rule 1.540(b)[] before the court’s equity jurisdiction may be invoked.” Rude v. Golden Crown Land Dev. Corp., 521 So.2d 351, 353 (Fla. 2d DCA 1988) (emphasis added). If the moving party fails to present evidence supporting a legal ground for relief from the judgment, it is an abuse of the trial court’s discretion to vacate that judgment. See Lee v. Chung, 528 So.2d 1313, 1315-16 (Fla. 2d DCA 1988).

Here, the Estate’s motion did not allege a basis for relief from the final judgment under rule 1.540, nor did the Estate argue entitlement to relief under rule 1.540 at the hearing on its motion. Because the trial court had no jurisdiction outside of rule 1.540 to vacate the final judgment of foreclosure, the Estate’s failure to seek relief under this rule, by itself, compels reversal of the order vacating that judgment.

Nevertheless, in this appeal, the Estate argues that this court can affirm the trial court’s ruling under either of two subdivisions of rule 1.540(b). First, the Estate contends that the substance of its argument in the trial court would have allowed the court, on its own, to set aside the final judgment under rule 1.540(b)(3), which permits the court to vacate a final judgment based on the misconduct of an adverse party. However, it is incumbent on the party seeking to vacate a judgment under that rule to come forward with evidence to support its position, see Rude, 521 So.2d at 353, and arguments of counsel do not constitute evidence, see, e.g., Justice v. State, 944 So.2d 538, 540 (Fla. 2d DCA 2006) (“Representations by an attorney for one of the parties regarding the facts ... do not constitute evidence.” (quoting Eight Hundred, Inc. v. Fla. Dep’t of Revenue, 837 So.2d 574, 576 (Fla. 1st DCA 2003))); see also Aziz v. Aziz, 45 So.3d 975, 978 (Fla. 2d DCA 2010) (noting that “unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation” (quoting Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006))). Here, counsel for the Estate argued at the hearing that the Bank engaged in improper ex parte dealings with the court; however, this argument, which is frankly contradicted by the record on appeal, does not constitute evidence of any actual misconduct. In the absence of any such evidence, the record cannot support this argument as a basis for affirmance.

Second, the Estate contends that the trial court could have, again on its own, properly vacated the final judgment under rule 1.540(b)(5), which permits the trial court to vacate a judgment when it is “no longer equitable that the judgment or decree should have prospective application.” However, rule 1.540(b)(5) requires the moving party to “allege new circumstances affecting the decision made by the trial judge.” Gotham Ins. Co. v. Matthew, 179 So.3d 437, 442 (Fla. 5th DCA 2015) (quoting In re Guardianship of Schiavo, 792 So.2d 551, 561 (Fla. 2d DCA 2001)). In addition, the movant must establish that these new circumstances “make it ‘no longer equitable’ for the trial court to enforce its earlier order.” In re Guardianship of Schiavo, 792 So.2d at 560. At its core, there must be some new postjudgment fact or occurrence that requires the trial court, in equity, to recede from its prior order or judgment.

Here, the Estate did not allege any new or changed circumstances in its written motion. And while the Estate did establish at the hearing that a change had occurred after the entry of the final judgment, i.e., the setting aside of the clerk’s default against Bank of America, the Estate did not establish why or how this change made it “no longer equitable” for the trial court to enforce the consent final judgment against the Estate. In fact, the Estate failed to offer even an argument from its counsel as to how it was prejudiced in any way by an order that simply converted a default final judgment against Bank of America into a consent final judgment against Bank of America. This superficial change in the nature of the judgment against Bank of America did not alter the equities of the situation so as to require the judgment against the Estate to be vacated.

Finally, the Estate’s “discovery” of the satisfaction of Bank of America’s junior mortgage cannot entitle it to relief under rule 1.540(b)(5). “The law is clear that something must have happened after the entry of final judgment that should ‘equitably limit[]’ the judgment’s application.” Second Sunrise Inv. Corp., 56 So.3d at 86; see also Baker v. Baker, 920 So.2d 689, 692 (Fla. 2d DCA 2006) (“[T]his court has held that the equities mentioned in the rule’s fifth ground are limited to ones that come to fruition after the final judgment.”). Here, the satisfaction of Bank of America’s mortgage was recorded in 2012, and the consent final judgment was not entered against the Estate until 2015. Because this satisfaction of mortgage was recorded three years before the final judgment was entered, it cannot possibly form the basis for relief under rule 1.540(b)(5).

In sum, because the Estate failed to either allege or prove any basis for vacating the final judgment of foreclosure against it, the trial court abused its discretion in vacating that judgment. Therefore, we must reverse and remand for reinstatement of the final judgment of foreclosure.

Reversed and remanded.

CASANUEVA and BADALAMENTI, JJ., Concur.

      . While the Estate did not argue its entitlement to relief under rule 1.540 in either its written motion or at the hearing, it relies on this rule in this appeal under the tipsy coachman doctrine. See Butler v. Yusem, 3 So.3d 1185, 1186 n.3 (Fla. 2009) ("The 'tipsy coachman’ doctrine allows an appellate court to affirm a trial court that 'reaches the right result, but for the wrong reasons’ so long as 'there is any basis which would support the judgment in the record.’ " (quoting Robertson v. State, 829 So.2d 901, 906 (Fla. 2002))). We address these unpreserved arguments under this doctrine.

      . The term "ex parte” is defined as some action being "[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest.” Ex parte, Black's Law Dictionary (10th ed. 2014) (emphasis added). Here, when the motion to reschedule the foreclosure sale was clearly served on counsel for the Estate, it was not "without notice to” the party having an allegedly adverse interest. We recognize that the title of the Bank’s motion conflicted with its substance, but a party may not elevate form over substance to gain an improper advantage in litigation.


source: Caselaw Access Project

author: KHOUZAM, Judge.

license: Public Domain

text:
    Zachary DANIELS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4371
    District Court of Appeal of Florida, Second District.
    Opinion filed January 18, 2017.

      Rupak R. Shah of Escobar & Associates, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Zachary Daniels pleaded no contest tó a number of drug-related offenses, reserving the right to appeal the denial of his dispos-itive motion to suppress. We reverse.

Daniels had an active misdemeanor warrant out of Alachua County for failure to appear. On February 27, 2013, sometime before 1:00 p.m., Detective Kenneth Noad received an anonymous tip, relayed by a fellow officer, that Daniels resided in the New Jersey Road area of Lakeland, Florida, on an unknown street in a house with the address 3036; drove a red truck with large wheels and tires lifted off the frame; and possessed firearms and cannabis in his residence. Detective Noad did not investigate the source of the tip or otherwise verify the allegations. After searching the area described in the tip, at approximately 3:30 p.m. Detective Noad located Daniels in the driver’s seat of a red Chevrolet 2500 pickup truck with large chrome wheels, parked in the carport of 3036 Pineway Avenue.

Detective Noad identified Daniels, placed him in handcuffs, and sat him on the ground. Detective Noad, unsure if there was anyone else in the house, approached the front door of the house, which was slightly ajar. He closed the door after learning that Daniels- had a dog that he did not wish to be let out of the house. In order to ascertain if anyone else was on the premises, and without obtaining consent, Detective Noad walked around to the north side of the house. From the curtilage of the residence, he peered into the house through an unobstructed window and observed a pistol case, rifle scope, and a small amount of marijuana on a table.

When Detective Noad reapproached Daniels, Daniels said that the house belonged to his friends and that he was just staying there. Law enforcement, officers contacted the landlord of the home, who identified Daniels as one of the primary residents listed on the lease. The landlord also identified Kayla McBride as an occupant of the home, but when officers reached out to McBride to obtain consent to search, she informed them that she no longer resided there.

Having failed to obtain consent from an occupant, the State applied for a search warrant based on an affidavit provided by Detective Noad. The State submitted the application around 8:30-9:00 p.m. The warrant application included the information from the anonymous tip as information provided by a fellow officer without acknowledging the original source of the information. As to Detective Noad’s observation of the contraband in the residence, the application provided in pertinent part: “Your affiant observed a small amount of suspected cannabis, a rifle scope, and plastic handgun case in plain view on the kitchen table within the place to be searched.” The application did not state that Detective Noad made this observation from the curtilage on the north side of the house. Based on the affidavit, the magistrate issued the search warrant.

Detective Noad returned to the home and searched it pursuant to the warrant. He found more than 800 grams of cannabis, two firearms, drug paraphernalia, a ledger, and a scale. Daniels was kept on the scene until almost midnight when the search was concluded. The State charged Daniels with: (1) actual or constructive possession of a structure used for trafficking, sale, or manufacture of controlled substances; (2) possession of cannabis within 1000 feet of a park, community center, or recreational facility with intent to sell; (3) possession of a firearm or ammunition by a convicted felon; (4) possession of cannabis over twenty grams; and (5) possession of drug paraphernalia.

Daniels filed a motion to suppress the evidence seized from the home. He argued, in pertinent part, that Detective Noad’s intrusion onto the curtilage of the home was unlawful and that the affidavit in support of the search warrant failed to establish probable cause. The court held an evidentiary hearing on the motion and denied it, finding that Detective Noad’s entry onto the curtilage was justified on the basis of officer safety. Daniels entered a plea of no contest to the charges but reserved the right to challenge the trial court’s denial of his motion to suppress.

“[I]n reviewing a trial court’s ruling on a motion to suppress, this court must give deference to the trial court’s factual findings if those findings are supported by competent, substantial evidence, but this court must review the trial court’s ruling of law de novo.” State v. Roman, 103 So.3d 922, 924 (Fla. 2d DCA 2012). “A warrantless search of a home is ‘per se unreasonable under the Fourth Amendment ... and Article I, section 12, of the Florida Constitution, subject to a few specifically established and well-delineated exceptions.’” State v. Fultz, 189 So.3d 155, 158 (Fla. 2d DCA 2016) (quoting State v. Boyd, 615 So.2d 786, 788 (Fla. 2d DCA 1993)). The Fourth Amendment’s protection of the home extends to the curtilage. See Abel v. State, 668 So.2d 1121, 1122-23 (Fla. 2d DCA 1996). Thus, without a warrant or an exception to the warrant requirement, a law enforcement officer has no right to physically intrude into the cur-tilage of a house. Powell v. State, 120 So.3d 577, 585 (Fla. 1st DCA 2013).

One such exception to the warrant requirement is a protective sweep — “a quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers or others.” Diaz v. State, 34 So.3d 797, 801 (Fla. 4th DCA 2010) (quoting Vasquez v. State, 870 So.2d 26, 30 (Fla. 2d DCA 2003)). Officers may conduct a sweep regardless of whether or not the arrest occurred inside or outside the home. Id. at 802. However, a protective sweep may only be performed when officers “have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence.” Id. (emphasis added).

The trial court’s finding that Detective Noad’s intrusion onto the curtilage was justified for officer safety was not supported by competent, substantial evidence because there are no facts giving rise to a reasonable, articulable suspicion that a sweep was necessary to ensure officer safety or to prevent the destruction of evidence. While Detective Noad testified that he was unsure if there were other people in the house, a mere suspicion that there may be additional persons on the premises was insufficient to justify an intrusion onto the curtilage. See Roman, 103 So.3d at 925 (“[B]ecause there was no evidence that the house was occupied, the trial court correctly found that the protective sweep of the house for officer safety was improper as there were no specific and articulable facts supporting a reasonable belief that there was an individual in the house who could pose a danger to law enforcement.”); Klosieski v. State, 482 So.2d 448, 450 (Fla. 5th DCA 1986) (“The fact that the police did not know, as an absolute certainty, whether more people were in the house, as found by the trial court, cannot justify entry into the house.”).

The State argues that Detective Noad’s entry onto the curtilage was justified because the arrest took place in front of the residence, officers were warned that Daniels’ dog should not be let out, and when law enforcement officers arrived, they encountered another individual who was moving out of the residence and did not wish to speak with the officers. This argument is without merit. While the State represented in its answer brief and at oral argument that officers encountered an individual moving out of the house on the day of the search, the record refutes the State’s position. At the hearing on Daniels’ motion to suppress, a law enforcement officer testified that the day after the search of Daniels’ residence he encountered an individual loading his possessions on to a moving truck who did not wish to talk to officers and left as soon as the officers arrived. This encounter, having taken place a day after the search warrant was issued and executed, has no bearing on whether Detective Noad’s warrantless intrusion onto the curtilage was justified. And the remaining allegations — the location of the arrest and the presence of a dog — do not give rise to a reasonable, ar-ticulable suspicion that officer safety was jeopardized.

Having determined that Detective Noad’s warrantless intrusion onto the curtilage of Daniels’ house violated the Fourth Amendment, we must determine if the warrant is otherwise supported by probable cause.

Where a court finds that police unlawfully obtained some of the evidence contained in the application for the search warrant, the court must then determine if there is probable cause to support the issuance of the warrant based on any independent and lawfully obtained evidence. “[T]he court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause.”

Roman, 103 So.3d at 925 (alteration in original) (citation omitted) (quoting State v. Hood, 68 So.3d 392, 396 (Fla. 2d DCA 2011)). Excising Detective Noad’s observations made from the curtilage of the home, the affidavit cannot support a finding of probable cause because the only pertinent allegations remaining in the affidavit stem from the anonymous tip.

An anonymous tip that has not been proven reliable “add[s] nothing to the determination of probable cause.” Smith v. State, 904 So.2d 534, 537 (Fla. 1st DCA 2005). This is because “[u]nlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ’an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’” Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (citation omitted) (quoting Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). The tip in this case was not shown to be rehable. While the State contends that the tip was verified, the mere fact that readily ascertainable details such as Daniels’ location were verified “does not show that the tipster has knowledge of concealed criminal activity.” J.L., 529 U.S. at 272, 120 S.Ct. 1375.

Thus, the trial court erred in determining that Detective Noad’s intrusion onto the curtilage was justified on the basis of officer safety and in denying the motion to suppress.

Reversed and remanded.

VILLANTI, C.J., and BADALAMENTI, J., Concur.

      . Daniels was later placed in a chair and eventually placed into the back of a patrol car where he remained for the entirety of the investigation which lasted over eight hours.

      . An anonymous tip can justify a finding of reasonable suspicion if it, suitably corroborated, exhibits “sufficient indicia of reliability.” Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).


author: PER CURIAM.

text:
    Gerald URBANEK, Appellant, v. IN RE: The MATTER OF the ADOPTION OF Richard DEMARTINO, Appellee.
    No. 3D16-1451
    District Court of Appeal of Florida, Third District.
    Opinion filed January 18, 2017.
    Boyes, Farina & Matwiezyk, P.A. and John Farina (Palm Beach Gardens), for appellant.
    Scott, Harris, Bryan, Barra & Jorgen-sen, P.A. and S. Brian Bull (Palm Beach Gardens), for appellee.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   PER CURIAM.

In light of Appellee’s concession that the adoption at issue in this matter should be vacated, we reverse and remand with instructions that the adoption be vacated.


author: SUAREZ, C.J.

text:
    Jason W. WAGNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-298
    District Court of Appeal of Florida, Third District.
    Opinion filed January 18, 2017
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant,
    Pamela Jo Bondi, Attorney General, and Arlisa Certain and Christina L. Dominguez, Assistant Attorneys General, for ap-pellee.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   SUAREZ, C.J.

Jason Wagner seeks to reverse his conviction. We reverse and remand for a new trial.

Jason Wagner was observed by undercover police officers driving a car at high speed out of a shopping center parking lot and onto the street. Detective Crespo and his fellow officer followed the vehicle, observed the driver fail to stop at two intersections, and pulled the vehicle over. Wagner was the driver, and he had a female passenger. When Wagner opened the car door, Detective Crespo observed the smell of marijuana and saw a baggie protruding from the back waistband of Wagner’s shorts. The detective retrieved the bag, which contained MDMA, marijuana and cocaine. Wagner was arrested and charged with trafficking in MDMA, as well as possession of cocaine and marijuana with intent to sell. Detective Crespo testified that his partner dealt with the female passenger, but he did not know her name, did not search her, and did not know if the other officers searched her.

Wagner’s defense at trial was that the drugs were not his, but belonged to the female passenger. Part of Wagner’s defense counsel’s strategy was to highlight contradictions and inconsistencies in • the investigating police officer’s documentation of the offense, and Crespo admitted that he had made errors in his arrest affidavit describing the traffic stop. In the middle of cross, the defense asked Crespo if he had drafted any additional report, such as an offense incident report [OIR], and Crespo testified that he had drafted one. Defense counsel asked for a sidebar and informed the trial court that he had never received the OIR from the State. At sidebar, the court asked the defense why it had not asked for the OIR at the start of the case, or alerted the court to a potential discovery violation earlier by motion, now that there had already been discovery, depositions, motions to suppress, and one mistrial. Defense counsel maintained that he had repeatedly requested the OIR from the State, and the State had replied that it did not have it, despite Detective Crespo’s testimony that he had prepared the document. Defense counsel objected to the State’s failure to supply the document, and the trial court asked defense counsel what prejudice the defense would suffer if it were to proceed without the document. Defense counsel asserted that upon being told by the State that no OIR existed part of the defense was to show the lack of investigation by the police. The trial court ordered the trial to continue without the OIR. Wagner was convicted of the lesser offenses of simple possession of MDMA, cocaine, and marijuana. He was sentenced to five years in state prison.

We agree that the trial court erred by failing to conduct a proper hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla. 1971). Upon being notified of an alleged discovery violation, the court must conduct a Richardson hearing to inquire about the circumstances surrounding the state’s violation of the discovery rules and examine the possible prejudice to the defendant. Cliff Berry, Inc. v. State, 116 So.3d 394, 418 (Fla. 3d DCA 2012); Jones v. State, 32 So.3d 706, 710 (Fla. 4th DCA 2010). The fact that the State was apparently unaware of the OIR’s existence does not relieve it from its duty to disclose. Fla. R. Crim. P. 3.220(b)(1)(C), and (j). Upon learning of the State’s potential discovery violation for failing to provide the defense with a copy of the OIR, the trial court made no inquiry to determine whether the discovery violation was willful or inadvertent, trivial or significant, and failed to determine whether the discovery violation procedurally prejudiced the defense. Richardson, 246 So.2d at 776; McDuffie v. State, 970 So.2d 312, 321 (Fla. 2007); Cliff Berry, 116 So.3d 394. Further, the trial court improperly shifted the burden to the defense to explain how it had been prejudiced by the alleged discovery violation. Id. at 418 (“[I]mposing the burden on the defendant to demonstrate prejudice instead of determining the circumstances of the discovery violation and requiring the State to demonstrate lack of prejudice to the defendant, does not satisfy the procedure contemplated by Richardson.”); Casica v. State, 24 So.3d 1236, 1241 (Fla. 4th DCA 2009) (“[I]t is the State’s burden to show that the error was harmless, the State must show in the record that the defendant was not prejudiced by the discovery violation.”); see also Kipp v. State, 128 So.3d 879, 881 (Fla. 4th DCA 2013) (“The state’s burden to show a discovery violation to be harmless is ‘extraordinarily high.’ ”).

The State has not shown that the defense’s trial strategy would not have been materially different had the OIR been disclosed. Wagner asserts that the discrepancies between Detective Crespo’s testimony and his prior statements gave rise to reasonable doubt as to Wagner’s possession of the contraband, and that Wagner’s passenger was the possessor of the drugs and fobbed them off to Wagner during the traffic stop. Timely disclosure of the OIR would have provided further grounds for impeaching the detective’s credibility, which would have been strategically helpful in Wagner’s defense. We cannot say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation. See Scipio v. State, 928 So.2d 1138, 1149 (Fla. 2006). That being so, we reverse Wagner’s conviction and sentence and remand for a new trial.

Reversed and remanded.

      . The trial court suggested that the State have one of its investigators "try to get a hold of the [OIR] in the meantime, but at this point we’re going forward.”

      . We completely understand the trial court's irritation. Not only had there been discovery, depositions and hearings on motions to suppress, the defendant had already been through a mistrial and yet this discovery matter was not raised until the middle of the subsequent trial. But even in such a situation the trial court is required to conduct a proper Richardson hearing.


author: WINOKUR, J.

text:
    Shaun D. REED, aka Shawn D. Reed, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-0184
    District Court of Appeal of Florida, First District.
    Opinion filed January 19, 2017

      Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    ■ Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

Shaun D. Reed (“Reed”) appeals his conviction for burglary of an occupied dwelling accompanied by an assault or battery, contending that the trial court erred in instructing the jury on the stealthy-entry inference set forth in section 810.07(1), Florida Statutes. While the trial court erred in giving this instruction, we affirm because the error was harmless.

I.

The State filed a three-count information charging Reed with 1) attempted second-degree murder of Dwight Lamar Murphy; 2) attempted second-degree murder of Stephanie L. Jackson (“Jackson”); and 3) burglary of an occupied dwelling accompanied by an assault or battery. Following trial, the jury found Reed guilty of the lesser-included offense of aggravated battery as to Count 1 and found him guilty as charged on Counts 2 and 3. Reed was sentenced to concurrent prison terms of fifteen years on Count 1, fifteen years on Count 2, and forty-five years on Count 3.

II.

On the day of the offenses, Reed was a passenger in a car driven by his cousin, Selena Godwin. Reed asked Godwin to “roll by” the neighborhood where Jackson, his ex-girlfriend, lived. Once there, Reed saw Jackson’s son, Tramar Jackson, walking on the street with his girlfriend, Alice Hathaway, accompanied by a man whom Reed did not recognize, but was later identified as Dwight Murphy. Apparently, Reed suspected Murphy of involvement with Jackson. It was dusk, and the street lights had by then come on. As Godwin approached a stop sign, Reed leaped from the passenger side and ran toward Jackson’s apartment.

Laquan Merriel was sitting on her porch with her cousin when she saw Reed jump from Godwin’s vehicle. Merriel testified that Reed was not attempting to conceal himself and that he was “easy” to see, wearing a light colored shirt and dark pants. Merriel thought nothing of it at the time, but she and her cousin went to investigate when they heard screams.

In the meantime, Tramar Jackson, Hathaway, and Murphy had returned home to Jackson’s apartment. Tramar did not enter the apartment at the time. The apartment had two doors: a screen door without a lock and a main solid door. Hathaway unlocked the main door and went inside with Murphy, leaving the main door open while the screen door automatically swung closed behind them.

Murphy went to Jackson’s room where she was sleeping and began massaging her back. At that moment, Reed entered the room and began stabbing Murphy. When Jackson ran for the door, Reed began stabbing her also, saying, “bitch, I told you not to be cheating on me.” Hathaway ran outside yelling for Tramar, who came back to the apartment, saw Reed stabbing Jackson, hit Reed, and told him to get off of his mother, at which point Reed fled.

III.

In accordance with section 810.07(1), Florida Statutes, evidence in a burglary trial that the defendant entered a structure or conveyance “stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense.” The trial judge instructed the jury on this inference over Reed’s objection that the evidence did not support the contention that he entered Jackson’s apartment “stealthily.”

Before the trial judge may instruct the jury on the section 810.07 inference, the State “must present evidence of the owner or occupant’s lack of consent and that entry into the structure was done ‘stealthily.’ ” Lanzo v. State, 73 So.3d 817, 819 (Fla. 5th DCA 2011). The statute does not define “stealthily,” but Florida courts have interpreted the term to mean activity that is “ ‘surreptitious, furtive, or sly.’ ” Id. (quoting J.A.S. v. State, 952 So.2d 638, 640 (Fla. 2d DCA 2007)). In other words, a defendant acts “stealthily” when his or her actions are done in a “furtive or clandestine manner to avoid discovery.” Id.

Here, there is no evidence that Reed acted in a furtive or clandestine manner. First, contrary to the State’s assertions, jumping from a moving vehicle in a residential neighborhood with daylight still on the horizon and running toward Jackson’s apartment was conspicuous behavior bound to attract attention. See id. at 820 (holding that defendant did not act stealthily where he was, among other factors, “seen at the open garage door of a house on a residential street during daylight hours and in full view of any passerby”).

Second, Reed’s behavior in fact did attract attention. Merriel and her cousin both observed him jump from the vehicle. The presence of visible bystanders, including Tramar Jackson, who was standing outside talking with a friend, suggests that Reed was indifferent as to whether he was observed. Indeed, Merriel testified that Reed did not appear to make any effort to conceal himself and that he was “easy to see.”

Third, although there is no direct evidence on precisely how Reed entered Jackson’s apartment, the circumstantial evidence indicates that he did so through the front door, which had been left open with only the screen door closed. There is no indication, and the State does not argue, that Reed entered by any other way. In any event, the absence of evidence on his manner of entry militates in Reed’s favor. See L.A.H. v. State, 197 So.3d 1265, 1267 (Fla. 2d DCA 2016) (“The State presented no evidence as to how L.A.H. entered the car and thus presented no evidence that the entry was stealthy.”).

Ultimately, the circumstances of this case indicate that Reed made no effort to conceal himself to enter the apartment and did not appear to care whether he was discovered. In short, the record discloses no evidence on stealthy entry that would support the disputed instruction.

The State argues that Reed was able to move through Jackson’s apartment to her bedroom without being detected even though there were four people in the apartment, contending that the fact that he was not observed is evidence that he moved stealthily. While it is unclear how Reed’s post-entry behavior demonstrates the stealthy manner of his entry, there is no reason that any of the occupants should have detected Reed in the first place. First, one of the four occupants was an infant. Second, Hathaway was in a back bedroom putting the child to sleep when Reed entered. Finally, Murphy and Jackson, the other two occupants to which the State refers, were in Jackson’s bedroom. Again, under the circumstances, there is no reason that any of them should have noticed Reed enter, so this is not evidence that he entered stealthily.

IV.

In conclusion, the trial court erred in giving the stealthy-entry instruction because there was no indication that Reed entered Jackson’s apartment stealthily. To the contrary, Reed’s actions before entry were conspicuous, and the absence of direct evidence on precisely how Reed entered the apartment does not serve as evidence of stealth. Nonetheless, we can affirm the burglary conviction if the error was harmless. See Daughtry v. State, 804 So.2d 426, 427-28 (Fla. 4th DCA 2001) (noting that the giving of the stealthy-entry instruction without evidence of stealth is subject to harmless-error analysis). We find that the error was harmless.

First, the State barely mentioned the stealthy-entry inference in its closing argument. In its initial closing argument, the State devoted only two sentences to this matter:

The law says you may infer Shawn Reed had the intent to commit a crime inside if the entering was done stealthily and without the consent of the owner or the occupant. And again, he didn’t get permission to go inside, didn’t knock on the door, he just went in.

This was the prosecutor’s only mention of the stealthy-entry inference to the jury. Reed’s counsel addressed this argument immediately in closing:

And one of the things the judge will tell you is that you can infer, you don’t have to, but you can believe that Shawn Reed had the intent to commit a crime inside a structure if the entering of the structure was done stealthily. Do you sneak around, do you go in a window, do you do it after dark? We had conflicting versions of what time it was, but I think after you’ve heard all the evidence you can probably conclude at least it was during daytime, maybe around dusk but it wasn’t dark yet. He just jumped out of the car in front of everybody, a lot of people saw him, and headed up there towards the apartment. So there’s nothing stealthily about the entry.

The prosecutor gave no response to this argument in the rebuttal closing. Instead, perhaps because defense counsel had so persuasively dismantled the stealthy-entry inference, the prosecutor argued that the evidence showed that Reed intended to commit a crime when he entered Jackson’s apartment, without reference to the stealthy-entry inference. The jury was left with nothing but a strong argument that the stealthy-entry inference simply did not apply in this case. Under these circumstances, it is difficult to conclude that the erroneously-given instruction had any effect on the jury.

“A jury is ‘likely to disregard an option simply unsupported by the evidence.’ ” Occhicone v. Singletary, 618 So.2d 730, 731 (Fla. 1993) (quoting Sochor v. Fla., 504 U.S. 527, 538, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992)) (finding that an erroneous aggravating-factor instruction in a capital murder prosecution was harmless where the evidence did not support the factor). We see no reason to conclude that the jury in this case did not disregard the stealthy-entry inference based on the manifest lack of evidence to support it, the lack of argument in favor of it, the persuasive argument against it, and the evidence of his intent to commit a crime without it. Accordingly, the misinstruction was harmless error and does not require reversal.

AFFIRMED.

LEWIS and BILBREY, JJ., CONCUR.

      . Reed does not challenge his convictions as to Counts 1 and 2.

      . It should be noted that the State presented convincing evidence that Reed entered Jackson’s home intending to commit a crime, without regard to the stealthy-entry inference and instruction.


text:
    James E. WELLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5618
    District Court of Appeal of Florida, Second District.
    Opinion filed January 20, 2017

      James E. Wells, pro se.
   PER CURIAM.

James E. Wells appeals the order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850(b)(2). We reverse and remand for resentencing pursuant to the Florida Supreme Court’s decision in Atwell v. State, 197 So.3d 1040, 1050 (Fla. 2016). In Atwell, the supreme court concluded that Florida’s existing parole system does not provide the individualized sentencing consideration required by Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), for a juvenile offender sentenced to life imprisonment with parole eligibility after twenty-five years. Id.; see also Hixon v. State, 41 Fla. L. Weekly D2594, 205 So.3d 834 (Fla. 2d DCA 2016); Landy v. State, 41 Fla. L. Weekly D2555, 205 So.3d 801 (Fla. 2d DCA Nov. 16, 2016); Michel v. State, 204 So.3d 101 (Fla. 4th DCA 2016). On remand, Mr. Wells is entitled to resentenc-ing pursuant to sections 775.082, 921.1401, and 921.1402, Florida Statutes.

Reversed and remanded.

CASANUEVA, WALLACE, and MORRIS, JJ., Concur.


author: LUCAS, Judge.

text:
    Sean M. LUCEY & Lucey Corporation, Appellants, v. 1010 LOGIC, INC., Appellee.
    Case No. 2D15-5325
    District Court of Appeal of Florida, Second District.
    Opinion filed January 20, 2017.
    Kathleen S. Lucey, Saint Petersburg, for Appellants.
    Jason H. Baruch and- Patrick M. Chid-nese of Holland and Knight LLP, Tampa, for Appellee.
   LUCAS, Judge.

Sean M. Lucey and Lucey Corporation (collectively, “Lucey”), the defendants below, appeal the entry of a final summary judgment entered in favor of 1010 Logic, Inc. in its breach of contract lawsuit. Lu-cey raises several issues on appeal, but we find merit in only one. The circuit court erroneously entered summary judgment on one of Lucey’s affirmative defenses where 1010 Logic failed to conclusively refute that no disputed issue of material fact existed as to that defense.

The facts of this case stem from a software design and technical support agreement between Lucey and 1010 Logic concerning a project for one of Lucey’s customers. Under the terms of the contract, 1010 Logie agreed to provide the services of a software developer, Deepak Krishnamoorthy, to assist with Lucey’s technical design and support for Lucey’s customer, Belk Stores Services, from January through September 2013. In addition to describing the scope of services to be provided, the contract included qualitative requirements for Mr. Krishna-moorthy’s work that would be outlined and later reviewed by one of Belk’s employees, Balaji Raman. According to the contract, Mr. Krishnamoorthy’s services were to be performed “in accordance with the [ajgreement and the service levels, specifications, and timeframes set forth in each [ojrder, and in accordance with performance measurements,” and the software code he created was to “be free of defects in workmanship, design, and material.” Furthermore, under the contract, Lucey would not be required to pay for any services that did not meet the contract’s requirements or the standards imposed by Mr. Raman.

Dissatisfied with Mr. Krishnamoorthy’s level of performance, Lucey withheld payment for the final three months of the contract and — apparently at Belk’s direction — purported to terminate Mr. Krishnamoorthy’s services under the contract in September 2013. 1010 Logic then filed a complaint in the circuit court against Lucey for nonpayment under the contract. In response, Lucey denied breaching the contract and asserted several affirmative defenses, including the defense — albeit somewhat inartfully articulated — that 1010 Logic failed to render substantial performance under the terms of the contract.

1010 Logic filed a motion for partial summary judgment, which the court heard during a pretrial conference. In its motion, 1010 Logic sought summary judgment on its breach of contract claim and all of Lucey’s affirmative defenses, and it filed summary judgment evidence, including Messrs. Lucey’s and Raman’s depositions, prior to the hearing. However, the motion offered only three points that were pertinent to Lucey’s substantial performance defense; according to 1010 Logic, (1) Lu-cey had received full payment from Belk for Mr. Krishnamoorthy’s work, (2) Lucey did not terminate Mr. Krishnamoorthy’s service until the end of the contract, and (3) Mr. Raman expressed regret for not doing more to supervise Mr. Krishnamoor-thy. For its part, Lucey never identified any summary judgment evidence, see Fla. R. Civ. P. 1.510(c), but argued at the hearing that Mr. Raman’s deposition refuted 1010 Logic’s summary judgment argu-merits as to Lucey’s substantial performance defense. The circuit court granted 1010 Logic’s motion and entered a final judgment in its favor, but neither the order granting summary judgment nor the final judgment specifically addressed any of Lucey’s affirmative defenses.

Our court summarized the standard of appellate review for summary judgment rulings on affirmative defenses in Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So.3d 251, 253 (Fla. 2d DCA 2011):

Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966); Fla. R. Civ. P. 1.510(c). When the nonmoving party has alleged affirmative defenses, the moving party must conclusively refute the factual bases for the defenses or establish that they are legally insufficient. Morroni v. Household Fin. Corp. III, 903 So.2d 311, 312 (Fla. 2d DCA 2005). “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.” Deutsch v. Global Fin. Servs., LLC, 976 So.2d 680, 682 (Fla. 2d DCA 2008).

(Emphasis added.) We have stated, repeatedly, that “[i]f the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So.3d 884, 886 (Fla. 2d DCA 2015) (quoting Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991)); see also LoBello v. State Farm Fla. Ins. Co., 152 So.3d 595, 598 (Fla. 2d DCA 2014) (same); Murray v. Traxxas Corp., 78 So.3d 691, 692 (Fla. 2d DCA 2012) (same).

We cannot say that the facts before us offer a “crystallized, conclusive” record that would support summary judgment on Lucey’s substantial performance defense. See Hastings v. Demming, 682 So.2d 1107, 1110 (Fla. 2d DCA 1996). Indeed, in our view, 1010 Logic failed to meet its initial burden of disproving the sufficiency of Lucey’s substantial performance defense. See Rooker v. Ford Motor Co., 100 So.3d 1229, 1231 (Fla. 2d DCA 2012) (“A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact.” (quoting Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979))). 1010 Logic’s observations about Lucey’s receipt of full payment from its customer, the timing of the contract’s termination, and a nonparty’s statement about his supervision over 1010 Logic’s work — essentially inferential arguments — did not conclusively refute Lucey’s defense that 1010 Logic failed to render substantial performance under the terms of the contract. See Coral Wood, 71 So.3d at 253. As the Third District explained in National Constructors, Inc. v. Ellenberg, 681 So.2d 791, 794 (Fla. 3d DCA 1996), “[t]he question of whether there has been substantial performance ... is normally a question of fact for the trier of fact to resolve based on all of the relevant evidence.” See also Fed. Nat’l Mortg. Ass’n v. Morton, 196 So.3d 428, 431 (Fla. 2d DCA 2016) (“[Wjhether a party has substantially complied with or performed a contract term remains a question of fact.”).

Accordingly, we must reverse the entry of the final summary judgment as to Lu-cey’s substantial performance affirmative defense. However, we find no error in any of the other rulings Lucey has challenged in this appeal.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Both Lucey and 1010 Logic appear to acknowledge that the contractual documents at issue comprised both a general services agreement dated December 18, 2012, and a subsequent statement of work issued from 1010 Logic, pursuant to that agreement. We use the term "contract" in this opinion to refer to both collectively.

      . The parties mutually agreed upon Mr. Ra-man’s designation under the contract as the "subject matter expert” for Belk’s software project.

      . Had Lucey complied with rule 1.510(c)'s strictures, Lucey would have had ample material within Mr. Raman’s deposition to demonstrate material facts in dispute regarding this defense. In his deposition, Mr, Raman explained that there were several issues in the code Mr. Krishnamoorthy wrote; that Mr. Krishnamoorthy did not properly test the code before its implementation; that Mr. Krishnamoorthy did not meet the "business requirements that were provided to him”; that after the code "went live,” additional defects were discovered; and that, had Mr. Raman himself completed the work in the same manner as Mr. Krishnamoorthy, he "would not [expect] to be ... paid.”


author: PER CURIAM. SHEPHERD, Senior Judge,

text:
    PENINSULA II DEVELOPERS, INC., etc., Appellant/Cross-Appellee, v. GRYPHON CONSTRUCTION, LLC, etc., et al., Appellees/Cross-Appellants.
    No. 3D13-2284
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017
    Angelo & Banta, P.A., and Eric C. Edison (Fort Lauderdale); Pillsbury Winthrop Shaw Pittman LLP, and David T. Dekker, Michael S. McNamara and Melissa C. Lesmes (Washington, D.C.), for appellant/cross-appellee.
    Kubicki Draper, P.A., and Caryn L. Bel-lus; O’Melveny & Myers LLP, Jonathan D. Hacker, and Bradley N. Garcia (Washington, D.C.), for appellee/cross-appellant Skyline Systems, Inc.; Brown Sims, and Marlin K. Green, and Daniel Cruz, for appellee/cross-appellant Gryphon Construction, LLC.
    Before SALTER and FERNANDEZ, JJ., and SHEPHERD, Senior Judge.
   PER CURIAM.

Affirmed.

SALTER and FERNANDEZ, JJ., concur.

SHEPHERD, Senior Judge,

dissenting.

I respectfully dissent because appellant, Peninsula II Developers, Inc., was denied its right to recover pursuant to an assignment of convenience by Steadfast Insurance Company of its subrogation rights against Gryphon Construction, LLC, the general contractor on a condominium construction project being developed by Peninsula II Developers and Gryphon subcontractor, Skyline Systems, Inc.

Factual and Procedural Background

Peninsula II contracted with appellee, Gryphon Construction LLC, for construction of a 223-unit luxury condominium project in Aventura, Florida. The contract required Gryphon buy a Subcontractor and Supplier Default Insurance (SubGuard) policy to insure against a subcontractor’s default. Gryphon obtained the required SubGuard policy from Steadfast Insurance with coverage limits of $20 million. The policy included a Financial Interest Endorsement which protected Peninsula II in the event Gryphon became insolvent. Gryphon subcontracted installation of drywall on the project to appellee, Skyline Systems, Inc., who installed defective drywall, necessitating extensive repairs. Gryphon began the repairs but soon became insolvent, and Peninsula II was forced to complete the repairs at a cost of over $34 million.

Subsequently, Gryphon, Peninsula II and Steadfast entered into certain agreements to facilitate the process of recovering the damages incurred as a result of Skyline’s default. Gryphon and Peninsula II executed a “Release and Cooperation Agreement” in which the parties recognized Gryphon’s insolvency and Peninsula II’s entitlement to Gryphon’s rights to benefits due under the SubGuard policy. Peninsula II and Steadfast also entered into A Pee and Recovery Sharing Agreement by which Steadfast assigned to Peninsula II its subrogation rights of recovery against a responsible third party, to the extent of payments it made to Peninsula II. Under this agreement, distribution of any recovered losses where to be made first to make Peninsula II whole, next to reimburse Steadfast, and finally for Peninsula II’s deductible and co-payment obligations under the Subguard policy.

Accordingly, Peninsula II filed suit against Skyline, seeking approximately $34 million in damages. This amount included $16,850,258 which had been paid by Steadfast under the Subguard policy, the right of recovery to which Steadfast had assigned to Peninsula II. Prior to trial, Skyline filed a motion in limine which asked the trial court to prohibit Peninsula II from presenting evidence of damages for which Steadfast had reimbursed it, claiming that no claims or theories of recovery for those damages were present in Peninsula IPs pleadings. In response, Peninsula II sought leave to amend its pleadings to correct any defects, arguing that no prejudice would result to Skyline as it was aware from the beginning that Peninsula II was making a claim to recover monies reimbursed by Steadfast, The trial court granted Skyline’s motion and denied Peninsula II’s motion. In so doing, the trial court erred.

Analysis

This case turns on the difference between the two types of subrogation recognized in Florida — conventional or contractual subrogation and equitable or judicial subrogation. Conventional or contractual subrogation arises from an agreement between parties that “the party paying the debt will have the rights and remedies of the original creditor.” Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999). Equitable or judicial subrogation, on the other hand, arises not from a contract, but from “the legal consequences of the acts and relationships of the parties.” Id. “Equitable subrogation arises by operation of law after an entity involuntarily pays the debt of another, contractual subrogation arises from an agreement.” “[A]n insurer’s subrogation right may be expressly provided for by a clause ... included in the insurance policy or in a settlement agreement with the insured .... ” Nat’l Union Fire Ins. Co. of Pittsburgh v. KPMG Peat Marwick, 742 So.2d 328, 332 (Fla. 3d DCA 1999).

Furthermore, contractual subrogation is not a distinct cause of action, it merely entitles the subrogor to bring the same cause of action as the subrogee. “[A] sub-rogation claim is not a new cause of action. Subrogation merely substitutes one person for another with reference to an existing lawful claim or right.” Attorney’s Title Ins. Fund v. Punta Gorda Isles, Inc., 547 So.2d 1250, 1252 (Fla. 2d DCA 1989) (citing Boley v. Daniel, 72 Fla. 121, 123, 72 So. 644 (1916)). “Since the right of subrogation is purely derivative, and insurer succeeds only to the rights of the insured, no new cause of action is created.” 16 Couch on Insurance § 222:14 (3d ed. 2013).

In the instant action, Steadfast reimbursed Peninsula II for drywall damages incurred in connection with the remediation of the defective drywall. Because the subrogation rights at issue were contractual, Peninsula II was not required to plead a cause of action for equitable subrogation. Peninsula IPs claims against Skyline were for breach of statutory warranty and contractual indemnity. Steadfast would be permitted to step into the shoes of Peninsula II and pursue Skyline on those exact same causes of action, to the extent of its payments to Peninsula II. However, because Steadfast assigned those rights to Peninsula II, Peninsula II was permitted to recover all damages on its claims for breach of statutory warranty and contractual indemnification, including the reimbursed monies from Steadfast.

Failure to allow the jury to consider the Fee Recovery Sharing Agreement and allow the reimbursed money to be used to mitigate the damage award was hardly harmless error and prejudiced Peninsula II. By its ruling, the trial court improperly eliminated Peninsula II’s ability to exercise its contractual rights and obligations to recover the reimbursed money on behalf of Steadfast. Accordingly, I would reverse and remand to allow for recovery of these damages.


author: SHEPHERD, Senior Judge.

text:
    BANCO BILBAO VIZCAYA ARGENTARIA, Appellant, v. EASY LUCK CO., INC., Appellee.
    No. 3D15-1376
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017

      Post & Romero and Robert G. Post, for appellant.
    Dick Lee & Associates, P.A., and Alan H. Ramer, for appellee.
    Before SUAREZ, C.J., and SALTER, J., and SHEPHERD, Senior Judge.
   SHEPHERD, Senior Judge.

Banco Bilbao Vizcaya Argentaría (BBVA) appeals a final judgment in favor of Easy Luck Co., Inc., on BBVA’s action against Easy Luck to recoup the sum of $85,000, mistakenly paid by BBVA at its office in the Dominican Republic by draft on an account of a customer there and credited to Easy Luck’s account at Sun-Trust Bank in Miami-Dade County. Applying sections 3-303 and 3^418 of the Uniform Commercial Code, §§ 673.3031 and 673.4181, Fla. Stat. (2012), the trial court held that BBVA should suffer the full amount of the loss. We agree and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arises out of a transaction for the sale of shoes by Easy Luck, a Florida company, to JAMS Technologies, Inc., a distributor located in the Dominican Republic. JAMS desired to purchase $43,337 worth of shoes from Easy Luck. At the time of the transaction, JAMS had an outstanding debt owed to Easy Luck in the amount of $77,000. Easy Luck told JAMS that it would ship the shoes to JAMS only if it received payment in advance. Because JAMS did not have a bank account in the Dominican Republic that transacted business in dollars and for local tax reasons, JAMS principal, Alex Molina, arranged through three individuals who represented themselves as principals and employees of a large paint company, Lanco Manufacturing Corp., and with whom Molina had done some business in the recent past, to issue a draft payable to Easy Luck in the amount of $85,000, purportedly drawn on Lanco Manufacturing’s BBVA bank account. Anxious to expedite delivery of the shoe order to his company in the Dominican Republic, Molina carried the draft to Miami and delivered it personally to Easy Luck’s President, Alan Wu. Molina told Wu to apply the remaining monies in excess of $43,337 to the unpaid debt owed by JAMS to Easy Luck.

Upon receiving the draft, Wu went to a local BBVA business office to ascertain the status of the account on which the draft was drawn and try to arrange quick payment so he could ship the shoes. The local BBVA business office declined to provide any information regarding either the account or the draft. Wu then deposited the draft for collection with his bank, SunTrust Bank, which advised him it would take several weeks for the draft to be collected and Easy Luck’s account credited. Wu advised Molina of the expected delay in the shipment.

BBVA paid the draft against Lanco Manufacturing’s account at BBVA’s office in the Dominican Republic on January 27, 2012. The funds were credited and made available to Easy Luck in its account at SunTrust Bank in Miami on February 6, 2012. Upon learning the funds were credited and available in Easy Luck’s account at SunTrust Bank, Wu noted JAMS delinquent balance “paid” on the books of his company in the amount of $41,663, the sum remaining on the $85,000 draft after subtracting the price of the shoe order, confirmed the items to complete the shoe order and shipped them to JAMS in the Dominican Republic on February 27, 2012.

On February 7, 2012, the day after Easy Luck’s account was credited with the full amount of the draft, a Lanco Manufacturing employee contacted BBVA claiming the draft was invalid. It was quickly determined that the instrument was a counterfeit and a forgery. Recognizing that it paid the instrument by mistake, BBVA credited Lanco Manufacturing’s account in the sum of $85,000 and, on February 9, 2012, advised SunTrust of the counterfeiting and forgery of the instrument. However, no one advised Easy Luck.

On April 27, 2012, BBVA offered Sun-Trust a hold harmless letter and demanded that SunTrust reverse the credit to Easy Luck’s account. One month later, SunTrust advised BBVA that it would not reverse the deposit to Easy Luck’s account and that BBVA’s client “would need to take [the] issue up with either BBVA for clearing the collection as a good item or directly with [SunTrust’s] client who received the credit for the collection.”

Thereafter, BBVA filed a one-count complaint against Easy Luck to recover the $85,000 loss it had suffered by payment of the draft. The complaint was served on Easy Luck on June 14, 2012. This was the first time Easy Luck had any knowledge of the counterfeiting and forgery.

ANALYSIS

Resolution of this dispute is governed in the main by Florida’s version of the Uniform Commercial Code, section 673.4181, titled “Payment or acceptance by mistake,” which provides as follows:

(1) Except as provided in subsection (3), if the drawee of a draft pays or accepts the draft and the drawee acted on the mistaken belief that payment of the draft had not been stopped pursuant to s. 674.403 or that the signature of the drawer of the draft was authorized, the drawee may recover the amount of the draft from the person to whom or for whose benefit payment was made or, in the case of acceptance, may revoke the acceptance. Rights of the drawee under this subsection are not affected by failure of the drawee to exercise ordinary care in paying or accepting the draft.
(2) Except as provided in subsection (3), if an instrument has been paid or accepted by mistake and the case is not covered by subsection (1), the person paying or accepting may, to the extent permitted by the law governing mistake and restitution, recover the payment from the person to whom or for whose benefit payment was made or, in the case of acceptance, may revoke the acceptance.
(3) The remedies provided by subsection (1) or subsection (2) may not be asserted against a person who took the instrument in good faith and for value or who in good faith changed position in reliance on the payment or acceptance. This subsection does not limit remedies provided by s. 673.4171 or s. 674.407....

(Emphasis added.) The thrust of the statute is to provide that as between two innocent victims of a scalawag who perpetrates a fraud on a drawee bank, the bank can recoup the amount mistakenly paid, even if the bank was negligent in making the payment, unless the person who received the funds can prove that it either (1) “took the instrument in good faith and for value,” or (2) “in good faith changed position in reliance on the payment ....” Id. In this case, the recipient of the funds, Easy Luck, asserts the first exception in defense of having to return to BBVA the $41,663 Easy Luck applied to partial payment of the $77,000 delinquent debt owed it by JAMS, and the second exception in defense of repayment of the $43,337 it credited itself for the cost of the shoes. We agree with Easy Luck on both points.

As to the $43,337 payment, BBVA concedes that Easy Luck “changed position in reliance” on BBVA’s mistaken payment of the draft within the meaning of the second exception to section 673.4181(3) when it shipped the shoe order to JAMS in the Dominican Republic and therefore is not entitled to recoup that portion of the mistakenly paid draft. However, BBVA argues that Easy Luck did not take the draft “in good faith and for value” within the meaning of the first exception to section 673.4181(3) for the remaining $41,663, the amount which was credited against the delinquent debt JAMS owed to Easy Luck. We disagree.

BBVA’s main argument on this point is that Easy Luck did not “give value’ for the amount of the draft remaining after paying for the shoe shipment within the meaning of the first exception because all it did was make a “bookkeeping entry,” reducing the amount of the delinquent debt on its books, and should now just erase the “bookkeeping entry,” a kind of “no harm, no foul” type of argument. The argument has some appeal. However, the Uniform Commercial Code, as adopted in this state, allocates the loss between innocent parties in these circumstance differently.

Section 673.3031, Fla. Stat. (2012), section 3-303 of the Uniform Commercial Code provides that

(1) An instrument is issued or transferred for value if:
(a) The instrument is issued or transferred for a promise of performance, to the extent the promise has been performed;
(b) The transferee acquires a security interest or other lien in the instrument other than a lien obtained by judicial proceeding;
(c) The instrument is issued or transferred as payment of, or as security for, an antecedent claim against any person, whether or not the claim is due.
(d) The instrument is issued or transferred in exchange for a negotiable instrument; or
(e) The instrument is issued or transferred in exchange for the incurring of an irrevocable obligation to a third party by the person taking the instrument.
(2) The term “consideration” means any consideration sufficient to support a simple contract. The drawer or maker of an instrument has a defense if the instrument is issued without consideration. If an instrument is issued for a promise of performance, the issuer has a defense to the extent performance of the promise is due and the promise has not been performed. If an instrument is issued for value as stated in subsection (1), the instrument is also issued for consideration.

(Emphasis added.) The purpose of section 673.3031(l)(c) is explained in Comment 4 to the Uniform Commercial Code as follows:

Subsection [l][c] follows former Section 3-303(b) in providing that the holder takes for value if the instrument is taken in payment of or as security for an antecedent cláim, even though there is no extension of time or other concession, and whether or not the claim is due. Subsection, [c] applies to any claim against any person; there is no requirement that the claim arise out of contract. In particular the provision is intended to apply to an instrument given in payment of or as security for the debt of a third person, even though no concession is made in return.

Section 673.3031 describes the very situation at issue here. It is undisputed on the record of this case that when Molina delivered the $86,000 draft to Wu, Molina told Wu to apply any sums remaining after payment of the shoe shipment to JAMS’ delinquent account with Easy Luck. The plain language of the statute informs that the $77,000 delinquent debt owed by JAMS to Easy Luck was an “antecedent debt.” Case law supports our plain reading. See, e.g., Turney v. Seale, 473 So.2d 855, 857 (La. Ct. App. 1985) (involving a delivery or transfer of promissory note in payment of antecedent claim of past-due alimony); Barbour v. Handlos Real Estate & Bldg. Corp., 152. Mich.App. 174, 393 N.W.2d 581, 589 (1986) (holding assignment made in full payment of prior loan constituted an assignment in payment of an antecedent claim). It would be so even if Easy Luck had not engaged in the formality of making the “bookkeeping entry” before the controversy arose. See, e.g., S. Bank of Commerce v. Union Planters Nat. Bank, 375 Ark. 141, 289 S.W.3d 414, 416 (2008) (determining bank gave value for check where it accepted cashier’s check for payment of mortgage, an antecedent claim, even though it took no immediate action on the mortgage).

BBVA finally argues that Easy Luck did not take the draft “in good faith,” as also required by the first exception to section 673.4181(3). BBVA apparently forgets the second exception to section 673.4181(3), to which it acceded on the $43,337 shoe purchase credit, also contains a “good faith” requirement. When BBVA conceded it should suffer the loss in the amount of the shoe purchase, it seems that BBVA must necessarily have conceded Easy Luck “in good faith” under that exception as well. See § 673.4181(3). BBVA ignores this apparent inconsistency in its argument.

However, we need not rely on a technical or procedural argument on this point. We find that there is competent substantial evidence in the evidence adduced at trial to support the trial court’s conclusion on the merits that Easy Luck took the draft “in good faith.”

Section 3-103 of the Uniform Commercial Code, adopted in Florida as section 673.1031 of the Florida Statutes, defines “good “faith” as “honesty in fact and the observance of reasonable commercial standards of fair dealing.” Under this provision:

The factfinder must ... determine, first, whether the conduct of the holder comported with industry or “commercial” standards applicable to the transaction and, second, whether those standards were reasonable standards intended to result in fair dealing. Each of those determinations must be made in the context of the specific transaction at hand. If the fact finder’s conclusion on each point is “yes,” the holder will be determined to have acted in good faith even if, in the individual transaction at issue, the result appears unreasonable. Thus a holder may be accorded holder in due course status where it acts pursuant to those reasonable commercial standards of fair dealing — even if it is negligent— but may lose that status, even where it complies with commercial standards, if those standards are not reasonably related to achieving fair dealing.

Any Kind Checks Cashed, Inc. v. Talcott, 830 So.2d 160, 165-66 (Fla. 4th DCA 2002) (quoting Maine Family Fed. Credit Union v. Sun Life Assurance Co. of Canada, 727 A.2d 335, 343 (Me. 1999)).

Comment 4 to the definitions, appearing in Article 3 of both the Uniform Commercial Code and as it exists in this state, provides some further assistance in our analysis:

Although fair dealing is a broad term that must be defined in context, it is clear that it is concerned with the fairness of conduct rather than the care with which an act is performed. Failure to exercise ordinary care in conducting a transaction is an entirely different concept than failure to deal fairly in conducting the transaction.

§ 673.1031. In this case, Easy Luck did take precautionary measures upon delivery of the draft by Molina to Easy Luck’s office in Miami. First, Wu inquired of the local BBVA office about the funds prior to depositing the draft. Second, Easy Luck resisted pressure by Molina to send the shoe shipment before the draft cleared and the funds were available in Easy Luck’s account. Lastly, Easy Luck had no actual knowledge the check was forged until it was served with the complaint in this case. In retrospect, one could always do more. However, the standard of “fairness” by which Easy Luck’s actions are to be judged is not a negligence standard. Rather, we are told that the standard of “fairness” to be applied in cases such as this “should be measured by taking a global view of the underlying transaction and all of its participants.” Talcott, 830 So.2d at 165. We believe these facts are sufficient to support the finding of the trial court that Easy Luck acted in good faith.

Finding no error in either the findings of fact or the conclusions of law made by the trial court in this case, we affirm the judgement.

Affirmed.

      . Bowing to the pressure from Molina, Wu actually shipped a small part of the order in the amount of $7,783 before the $85,000 was credited to his account at SunTrust.


text:
    CITY OF SUNNY ISLES BEACH, etc., Appellant, v. CAVALRY CORP., etc., et al., Appellees.
    No. 3D15-1420
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017

      Holland & Knight LLP, and Christopher N. Bellows, Rodolfo Sorondo, Jr., and Rebecca M. Plasencia; Hans Ottinot, City Attorney, and Fernando Amuchastegui, Deputy City Attorney, for appellant.
    Akerman LLP and Gerald B. Cope, Jr.; Law Offices of Robin Bresky and Joanne Rose Telischi and Michele K. Feinzig (Boca Raton); J. Wiley Hicks, for appellee, Karen P. Tucker, Trustee.
    Before WELLS and SALTER, JJ., and SHEPHERD, Senior Judge.
   SHEPHERD, Senior Judge.

This is an appeal by the City of Sunny Isles Beach from the denial of its motion for new trial, arising from a jury verdict in an eminent domain case setting forth what the City owed the landowner as fair and just compensation for the taking of a portion of a finger canal to build a bridge for use as an emergency evacuation route to the mainland from the barrier island on which the city is situated. The City claims evidentiary error in the proceeding. We find none and write only to address the City’s contention that the trial court abused its discretion by admitting into evidence conceptual site plans to establish the highest and best use of the property as a private docking facility. A brief summary of the facts of this case is necessary to explain our decision.

FACTS

The property in this case consists of 2.81 acres of predominantly submerged land, created by dredge many years ago. The landowner or title holder of the fee is Karen P. Tucker, Trustee (the “Owner”). The property today is one of many natural or man-made canals which jut off larger water bodies in the state, generating additional waterfront living and recreational opportunities for the comfort and pleasure of its citizens. Like many of these finger bodies, especially in South Florida, this finger canal dead-ends at one of its lengths. Before the taking, the property included a bulkhead on its north side and a small upland strip that connected it to North Bay Road, a major thoroughfare running along the eastern boundary of the barrier island on which the City is located, providing access to other communities to the north and south, including the City of Miami Beach. The canal also had unobstructed access to the Intracoastal Waterway.

In 2012, the City took .18 acres (approximately 7,900 square feet) of the property to build a bridge to connect North Bay Road to the mainland. The bridge, apparently well into the planning stages, intersects the canal property and will impede marine access to the Intracoastal Waterway for most of the remaining canal property. For all the years since the current owner acquired title to the property and before, there has been no effort by an owner to develop the canal property. Its use has been limited to casual use by private boaters who have motored into the canal, jet skiers, and the like.

Although the Owner made no effort to develop the property before it received the notice of taking from the City, it contended at trial, based upon conceptual site plans prepared by one of its testifying experts, that the highest and best use for valuation of the injury to the property caused by the taking is that of a private docking facility for adjoining condominiums or homes. As evidence of the economic viability of this use, the Owner points out that since it purchased the property, the Winston Towers condominium complex, with 1,200 residential units, has been constructed along the property’s north side. The private docking facility the Owner posits as the highest and best use for the property is proposed to be comprised of forty-six boat docks.

The City counters that the proposed highest and best use has sprung forth fully formed from the brow of one of its testifying experts solely for the purpose of trial. The City accurately states the Owner of the property never took any affirmative step to develop the property in any fashion, much less spent a single cent to improve the underwater property or obtain an agreement with an adjoining landowner to build parking, access and utilities to the hypothetical facility. Despite testimony to the contrary, offered by the Owner’s experts, the City proffered, somewhat disconcertingly, one might think, to those who regard the use of one’s private property as a constitutional given, that the proposed facility is not economically viable because it would require going through various permitting agencies, including the U.S. Army Corps of Engineers, South Florida Water Management District, Miami-Dade County (including its Manatee Protection Plan), and numerous other commenting agencies that advise these permitting agencies, such as the Florida .Fish and Wildlife Conservation Commission, U.S. Fish and Wildlife Service and National Oceanographic Administration. Opining that the property “essentially had no economic use potential” — sounding in; substance like a categorical taking — the City appraiser opined the fair-market value for the entire parcel was $1,000. Rejecting the City’s proffer, the jury awarded the Owner the ■ exact amount it sought, $855,000, as fair and just compensation for the taking, including the reduction in value to the remaining parcel resulting from lack of access to the Intracoastal Waterway. We find no error in the jury verdict.

ANALYSIS

The United States and Florida Constitutions safeguard private property rights. Daniels v. State Rd. Dep’t., 170 So.2d 846, 849 (Fla. 1964). The Florida Constitution guarantees that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner.” Art. X, § 6(a), Fla. Const.

Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking must be included in the compensation awarded. Partyka v. Fla. Dep’t of Transp., 606 So.2d 495, 496 (Fla. 4th DCA 1992). “These ‘damages to the remainder’ are called ‘severance damages’ and are measured by the reduction in value of the remaining property.” Kendry v. Div. of Admin., State Dep’t of Transp., 366 So.2d 391, 393 (Fla. 1978). Thus, “full compensation [is required] for both the property-taken and for damages to the remaining property.” Fla. Power & Light Co. v. Jennings, 518 So.2d 895, 898 (Fla. 1987).

The Owner’s expert appraiser employed the “development approach,” sometimes also referred to as “discounted cash flow” method, to determine the market value of the property. Although recognized in authoritative eminent domain treatises, the first Florida court that dealt in any detail with this approach for the valuation of an undeveloped tract of land was the First District Court of Appeal in Boynton v. Canal Authority, 265 So.2d 722 (Fla. 1st DCA 1972). See 4 Julius L. Sack-man, Nichols’ The Law of Eminent Domain § 12B.14 (rev. 3rd ed. 2001); The Florida Bar, Florida Eminent Domain Practice and Procedure, § 9.62 (9th ed. 2014). Boynton teaches that under the development approach: (1) the property is valued as of the date of the taking; (2) the question for the appraiser is what a willing buyer would pay for the property in its then-existing condition on that date, for development into its highest and best use; and (3) the highest and best use may be a prospective use. Id. at 724.

The Boynton decision is very similar to the case before us. In Boynton, the highest and best use of the property before the taking was “water oriented recreational development,” but the taking eliminated the water access. The court approved the use of the development approach to the facts of this case, explaining:

[T]he testimony sought to be adduced was based on the actual value of the property at the time of the taking if sold for recreational development, its highest and best use. Nothing had to be done to the property in order to enhance its value. In arriving at his opinion as to the present value of the property, the appellants’ appraiser took into consideration the profit ratio of the developer, the time in which the developer could sell the lots, and the number of lots the developer could sell and at what price. These considerations were based on the appraiser’s experience and were specifically considered in order to show present value of the property in terms of what a developer would be willing to pay at the present for the land. Therefore, the value opinion was based on the property being sold at that time for development, not what the property would be worth if developed and then sold, although the yield to the future developer was taken into consideration by the appraiser in determining present value.
The development approach is an acceptable method of valuation and although no Florida case has dealt with it in detail, it is recognized in Nichols on Eminent Domain, Second Edition) and Florida Eminent Domain Practice and Procedure, Second Edition. The appraiser for appellants testified that the lack of comparable sales in the area required the use of the development approach for an accurate valuation. Accordingly, it is our view that the appraiser should have been allowed to testify as to what the property could be sold for, with the riparian rights attached, in keeping with his opinion that the property is presently suitable for sale to a recreational developer.

Id. at 723-24 (emphasis added). Just as in Boynton, the expert appraisal testimony offered by the Owner under the “development approach” method for determination of fair and just value in the case before us “was based on the actual value of the property at the time of the taking if sold for [development as a private docking facility], its highest and best use.” Id The conceptual plans were plainly admissible to illustrate and support the expert appraiser’s testimony.

The City argues that under Yoder v. Sarasota Cnty., 81 So.2d 219 (Fla. 1955), overruled in part, State Rd. Dep’t v. Chicone, 158 So.2d 753 (Fla. 1963), the Owner’s appraisal evidence should have been excluded as speculative. The City is mistaken. As the Boynton court explained, the development approach is not speculative, and does not violate Yoder. Boynton, 265 So.2d at 723-24.

Yoder, is different. In Yoder, the property owner, who was disappointed with her fair and just compensation award in an eminent domain case, argued that the trial court erred by excluding evidence of the greater value the property would have if filled to a level sufficient to adapt it to various uses. The Supreme Court held the trial court correctly excluded this proffered evidence of the value, explaining:

We have consistently ruled that the amount of compensation to be awarded to a property owner when his property is sought to be taken in an eminent domain proceeding is the value of the land taken at the time of the lawful appropriation. It is appropriate to show the uses to which the property was or might reasonably be applied, and the damages, if any, to adjacent lands. Nevertheless, the value must be established in the light of these elements as of the time of the lawful appropriation. It is not proper to speculate on what could be done to the land or what might be done to it to make it more valuable and then solicit evidence on what it might be worth with such speculative improvements at some unannounced future date.

Yoder, 81 So.2d at 220-21 (citations omitted). In the case before us, the Owner did not violate Yoder because the Owner did not seek compensation based upon what could or might be done to make the land more valuable and then solicit evidence on what it might be worth. Rather, borrowing from language used in Boynton itself, “the testimony [] adduced [in the case before us] was based upon the actual value of the property at the time of the taking if sold for development [as a private docking facility], its highest and best use.”

We note in passing that the valuation methodology used by the Owner in this ease, relying on a highest and best prospective use, even though the Owner has no plans to sell the property or use it for that use, is precisely the same strategy long employed by county appraisers in appraising property for tax assessment purposes. See, e.g., Vero Beach Shores, Inc. v. Nolte, 467 So.2d 1041 (Fla. 1985); Miami Atlantic Dev. v. Blake, 334 So.2d 29 (Fla. 3d DCA 1975). We affirm the award made to the Owner of the canal property in this case.

Affirmed.

Attachment

      . An aerial photograph of the property showing the canal, its relationship to the Intracoas-tal Waterway and development that has grown up around the property is attached to this opinion, The canal runs in an east-west direction, with the east end opening to the Intracoastal Waterway and the other a dead end.

      . The City's most recent valuation for property tax purposes was $1,300. However, tax-assessed value is not conclusive evidence of market value, and is not typically admissible in an eminent domain proceeding against a private landowner. The Florida Bar, Florida Eminent Domain Practice and Procedure § 10.70 (9th ed. 2014).

      . Both the Owner’s appraiser and City’s appraiser explored using the sales approach for valuing the property, but found insufficient data to support use of this methodology. The Owner's appraiser found only one comparable sale of vacant canal property with no permitting in place, no uplands, no agreements with adjacent landowners, and subject to the Manatee Protection Plan in nearby Aventura, which had sold in 2006 for $300,000. The City’s appraiser found a vacant canal parcel equal in size to the one here where the owner had obtained County approval to building a private docking facility with approximately 120 slips and obtained an easement from nearby condominium owners for uplands access. Although listed for sale, it had not sold by the time of the trial. While not useful, strictly speaking, for determining market value of the instant property, this evidence tended to confirm the testimony of the Owner’s environmental expert that the issuance of the permits necessary to install a private docking facility on the property was “reasonably probable.” See Bd. of Comm’rs of State Institutions v. Tallahassee Bank & Trust Co., 100 So.2d 67, 69 (Fla. 1st DCA 1958) (holding this to be the standard for valuation of vacant land where prohibitions or restrictions on use are modifiable or removable within a reasonable time).

      . The Boynton court also held inapplicable Coral-Glade Co. v. Bd. of Public Instruction of Dade Cnty., 122 So.2d 587 (Fla. 3d DCA I960), where the owner wanted compensation based on additional cost for the owner to complete a development. The Boynton court explained the distinction, "[T]he opinion as to the value was based on present value for recreational development, not on the value of the property when developed.” 265 So.2d at 724.


text:
    William PESTLE, Ph.D., Appellant, v. CITY OF MIAMI, et al., Appellees.
    No. 3D15-2050
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017
    Ralf Brookes (Cape Coral); Robert N. Hartsell and Sarah M. Hayter (Pompano Beach), for appellant.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson, P.A., and Eugene Stearns, Grace L. Mead, Maria A. Fehret-dinov and Veronica L. de Zayas, for MDM Development, LLC, and MDM Retail, Ltd.; Victoria Méndez, City Attorney, and Forrest L. Andrews, Assistant City Attorney, for City of Miami, appellees.
    Before EMAS and SCALES, JJ., and SHEPHERD, Senior Judge.
   PER CURIAM.

Affirmed. See Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So.3d 755 (Fla. 2010) (finding private negotiations between deputy county administrator and members of the county board of commissioners, conducted for purposes of developing memorandum of understanding, did not violate Sunshine Law as no final action was taken and any violation would have been cured by subsequent pub-lically noticed meeting of the board); Tolar v. Sch. Bd. of Liberty Cnty., 398 So.2d 427, 429 (Fla. 1981) (“The Board’s action was not merely a ceremonial acceptance of secret actions and was not merely a perfunctory ratification of secret decisions at a later meeting open to the public.”).