author: MORRIS, Judge.

text:
    Jill KELLY; Jeff Falkenthal; and Judy L. Mors-Kotrba, as successor trustee, Appellants, v. Donna LINDENAU, Appellee.
    Case No. 2D16-2011
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2017
    Rehearing Denied July 17, 2017
    Barry F. Spivey of Spivey & Fallon, P.A., Sarasota, for Appellants Jill Kelly and Jeff Falkenthal.
    Scott H. Carter of Dunlap & Moran, P.A., Sarasota, for Appellant Judy L. Mors-Kotrba.

      David A. Wallace, Morgan R.'Bentley, and Amanda R. Kison of Bentley & Brun-ing, P.A., Sarasota, for Appellee.
   MORRIS, Judge.

The appellants, Jill Kelly (Jill), Jeff Falkenthal (Jeff), and Judy L. Mors-Kotr-ba (Judy), as successor trustee, appeal a final judgment reforming a trust and requiring Judy to transfer title to real property to a trust beneficiary, the appellee, Donna Lindenau. Below, Judy petitioned for a declaratory judgment in her capacity as successor trustee of a trust created by the decedent, Ralph Falkenthal (Ralph). Judy alleged that two amendments to the trust were not signed by two witnesses as required by Florida law. Lindenau then filed a counterclaim seeking reformation of the trust in relation to the second amendment. Following a bench trial, the trial court denied the petition for a declaratory judgment, granted Lindenau’s counterclaim, and orderéd Judy to transfer the subject real property to Lindenau. Because we conclude that the amendments to the trust were not validly executed and, as a result, that reformation of the trust could not occur, we reverse the final judgment.

I. BACKGROUND

Ralph created his revocable trust in December 2006 while he still resided in Illinois. The trust was validly executed pursuant to Illinois law. The trust provided that upon his death, the trust assets would be distributed to his wife. In the event that she predeceased him, they would be evenly distributed to his three children, Jill, Jeff, and Judy. Ralph’s wife predeceased him, and Ralph subsequently moved to Florida.

In 2009, Ralph met Lindenau. In 2010, Ralph purchased a house located in Bra-denton, and he resided there with Linde-nau. Subsequently, Ralph executed a first amendment to the trust on October 25, 2012, the testamentary aspects of which are irrelevant to this appeal. On December 18, 2014, Ralph executed a second amendment that modified the trust to provide for a specific devise to Jeff of a Sarasota residence. The second amendment also provided for a specific devise of the Bradenton residence to Lindenau. No other changes were made to the remaining trust résidue. At the time of’execution of both the first and second amendments, Ralph resided'in Florida. Yet, both amendments were prepared by Ralph’s Illinois attorney, and the parties have not disputed Lindenau’s assertion that the amendments were prepared in accordance with Illinois law. Even though the amendments were executed in the presence of two witnesses, they were only signed by one of the witnesses.

Ralph died on February 7, 2015, whereupon the trust became irrevocable. Judy, in her capacity as successor trustee, then filed a petition for declaratory judgment to determine the validity of the first and second amendments. Lindenau filed her counterclaim, which she later amended, seeking a reformation of the trust in relation to the second amendment. Lindenau argued that the error in failing to have two witnesses sign the second amendment was a mistake of law. In the alternative, Lindenau argued for the imposition of a constructivé trust in her'favor regarding the Bradenton;'house.

Jill and Jeff filed a motion for summary judgment, arguing that' the amendments were invalid because they were not executed in accordance with Florida law. They also argued that reformation was not appropriate because Lindenau was not seeking to reform trust provisions already contained within the trust but was instead seeking to validate the otherwise invalid amendment. The trial court denied the motion for summary judgment. The case proceeded to a bench trial with the trial court ultimately granting Lindenau’s reformation request pursuant to section 736,0415, Florida Statutes (2016), and ordering Judy, as successor trustee, to transfer the Bradenton house to Lindenau withiñ ten days of the final judgment. This appeal followed, and the trial court granted a stay of the transfer of the Bradenton house pending the outcome of this appeal.

II. ANALYSIS

There is no dispute that Ralph’s intent was to leave the Bradenton house to Lindenau. There is also no dispute that the second amendment was only signed by one of the witnesses. Rather, the dispute focuses on whether an improperly executed trust amendment can be validated through reformation pursuant to section 736.0415. The trial court concluded that section 736.0415 permitted reformation in this case because Lindenau met her burden of proving that “the accomplishment of the settlor’s intent was affected by a mistake in law.” Because the trial, court’s conclusion rests on a question of law, we review the final judgment de novo. See Gessa v. Manor Care of Fla., Inc., 86 So.3d 484, 491 (Fla. 2011); Megiel-Rollo v. Megiel, 162 So.3d 1088, 1094 (Fla. 2d DCA 2015).

In Florida, the testamentary aspects of a revocable trust are invalid unless the trust document is executed by the settlor of the trust with the same formalities as are required for the execution of a will. § 736,0403(2)(b), Fla. Stat. (2014). In turn, the portion of the Florida Probate Code that addresses the execution of wills requires that wills must be signed in the presence of two attesting witnesses and that those attesting witnesses must themselves sign the will in the presence of the testator and of each other. § 732.502(l)(b)-(c), Fla. Stat, (2014). Consequently, a trust—or an amendment thereto—must be signed by the settlor in the presence of two attesting witnesses and those witnesses must also sign the trust or any amendments in the presence of the settlor and of each other. These requirements are strictly construed. Cf. Allen v. Dalk, 826 So.2d 246, 247 (Fla. 2002) (explaining that strict compliance with statutory requirements for execution of a will is mandated in order to create a valid will and recognizing that absent the requisite formalities, a will “will not be admitted to probate”).

The Florida Supreme Court has affirmed a circuit court’s refusal to admit a will to probate where one of the two witnesses refused to sign it, Crawford v. Watkins, 76 So.2d 194, 196, 197-98 (Fla. 1954). The court in. Crawford explained that the signature of an attesting witness serves “as testimony of the fact that all legal steps necessary to make the will a legal instrument have been taken by the testator.” Id. at 197-98 (emphasis added). Thus, where a testator, or a settlor in'the case of a trust, fails to strictly comply with the statutory requirements for valid execution of the relevant document, the document remains invalid and unenforceable. Id.; see also Aldrich v. Basile, 136 So.3d 530, 533 (Fla. 2014) (explaining that codicil that was only signed by one witness “was not an enforceable testamentary instrument under the Florida Probate Code”); Allen, 826 So.2d at 248 (expressly refusing to impose a constructive trust over estate assets—despite the testator’s clear intent as stated within the will—where the testator failed to sign the will, a “major requirement for a validly executed will”).

Lindenau concedes that the second amendment was invalid under Florida law, but she argues that the- failure to obtain the second witness’s signature was a mistake of law affecting the accomplishment of Ralph’s intent and that the appropriate remedy is reformation. We disagree. Although Lindenau asks this court to distinguish Allen, Crawford, and Aldrich on the basis that they either predated the enactment of section 736.0415 or failed to address it, we are not persuaded that any distinction is dispositive in this case due to the language of the statute itself.

Section 736.0415 provides in relevant part that the terms of a trust can be reformed “to conform ... to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.” Aside from the issue of the settlor’s intent, the statute thus focuses on the terms of the trust, not the execution of it. See also Megiel-Rollo, 162 So.3d at 1094 (quoting Morey v. Everbank, 93 So.3d 482, 489 (Fla. 1st DCA 2012), for the proposition that reformation is used to correct a “mistake in the form of expression oh articulation” such as where a trust includes a term that “misstates the donor’s intention[,] fails to include a term that was intended to be included[,] or includes a term that was not intended to be included”). Indeed, in discussing Florida’s liberal policy regarding reformation, this court has acknowledged that the remedy is used “to cause the instrument to reflect the true agreement of the parties when the terms of the agreement have not been clearly expressed in the instrument because of [a] mutual mistake or inadvertence.” Id. at 1097 (emphasis added) (quoting Tri-Cty. Prod. Distrs., Inc. v. Ne. Prod. Credit Ass’n, 160 So.2d 46, 49 (Fla. 1st DCA 1963)). But here, the terms of the second amendment are clear that Ralph intended to leave the Braden-ton house to Lindenau. Thus there were no terms of the trust that needed reformation. Rather, Lindenau sought reformation to remedy an error in the execution of the second amendment. But by the statute’s terms, reformation is only available to remedy mistakes that affect “both the accomplishment of the settlor’s intent and the terms of the trust.” § 736,0415.

We reject Lindenau’s argument that Megiel-Bollo can be read to mean that reformation is available even where a trust was invalidly executed. In that case, although the circuit court ruled that no valid trust had ever been created, that finding was predicated on the fact that the attorney who drafted the trust failed to prepare a Schedule of Beneficial Interests that was expressly referenced in the trust document. 162 So.3d at 1092. In turn, the circuit court found that the trust was void ab initio because it failed to name any beneficiaries. Id. at 1094. However, on appeal, we concluded that reformation was available because the attorney committed a drafting error by failing to prepare and incorporate the Schedule of Beneficial Interests into the trust, which expressly referenced the Schedule. Id.- at 1097. Thus we construed the error as one affecting the settlor’s intent and the terms of the trust, not the execution of it. Indeed, the opinion makes clear that the settlor “executed the Trust with the requisite formalities for the execution of a will.” Id. at 1091. Consequently, Megiel-Rollo does not mandate an affirmance here.

As an alternative basis for affir-mance, Lindenau asks this court to apply the “tipsy coachman” doctrine and to hold that a constructive trust should be imposed on the Bradenton house. She acknowledges that the circuit court never ruled on this issue below due to its finding that reformation was appropriate, but she contends that a constructive trust is a valid remedial option here because the parties all agree that Ralph intended to leave the Bradenton house to her. In making this argument, Lindenau relies on In re Estate of Tolin, 622 So.2d 988, 990-91 (Fla. 1993), wherein the Florida Supreme Court held that a constructive trust should be imposed where the testator failed to validly revoke a codicil to a will, but where it was clear that his intention had been to revoke the codicil and that that intention was frustrated by his mistake in destroying a copy rather than the original.

We decline to hold that a constructive trust should be imposed in this case. We acknowledge that the court in Tolin used the constructive trust remedy to work around the invalid revocation of a codicil because the testator’s intent was clear and because a third party would otherwise benefit from the testator’s mistake at the expense of the intended beneficiary. Further, we are mindful of the facts that, as in Tolin, Ralph’s intent is clear in this case and a reversal of the final judgment will result in a benefit to Ralph’s estate (i.e., to Jill, Jeff, and Judy) at the expense of Lindenau. However, there was no dispute in Tolin about the validity of the original will or codicil. And in Allen, the court expressly distinguished Tolin and declined to extend it beyond its facts. Allen, 826 So.2d at 248. Instead, the court in Allen refused to impose a constructive trust because the testator had failed to comply with a “major requirement for a validly executed will” (i.e., the testator’s signing of it) and thus “[a]n order imposing a constructive trust under these facts would only serve to validate an invalid will.” Id.

Read in conjunction, Tolin and Allen make it clear that while the imposition of a constructive trust might be appropriate where a will (and thus a trust) has been validly executed, that remedy is not appropriate where there is an error in the execution of the document. We conclude that that distinction should be extended to cases such as this one where an amendment to a trust was not validly executed. Because there was no valid, enforceable amendment, the imposition of a constructive trust on the Bradenton house “would only serve to validate an invalid” amendment. Allen, 826 So.2d at 248. Accordingly, we hold that the trial court erred by denying the petition for declaratory judgment, by applying section 736.0416 to reform the second amendment, and by requiring the transfer of the Bradenton house to Linde-nau. Our reversal makes it unnecessary to decide a second issue raised solely by Judy in her capacity as successor trustee.

Reversed and remanded.

LUCAS and BADALAMENTI, JJ., Concur.

      . Because one of the appellants has the same last name as the decedent, we will refer to the appellants and the decedent by their first names to avoid confusion.

      . While the parties are primarily concerned with the second amendment, the final judgment denied the petition for declaratory judgment, which had addressed both amendments.

      . The first amendment did not involve a devise to Lindenau.

      .We note that Illinois law requires that wills be signed by the testator (or an authorized signer) and "attested in the presence of the testator by 2 or more credible witnesses.” 755 Ill. Comp. Stat. Ann. 5/4—3(a) (West 2012-2014). At least one Illinois court holds that the "attesting” requirement means that each of the two witnesses must also sign the will. In re Estate of Lum, 298 Ill.App.3d 791, 232 Ill.Dec. 864, 699 N.E.2d 1049, 1050-51 (1998). The parties have not explained whether trust documents must conform to will requirements in Illinois. However, because the parties have not disputed Lindenau’s assertion that the amendments were validly executed under Illinois law and because that issue does not control this case, we need not resolve that issue.

      , Section 736,0403(2)(b) defines "testamentary aspects” to mean trust provisions "that dispose of the trust property on or.after the death of the settlor other than to the settlor's estate.”

      . We cite to the 2014 version of the statute since the attempt to éxecute the second' amendment occurred on December 18, 2014. Although the attempt to execute the first amendment occurred in 2012, the 2012 version of the statute is substantively the same.

      . Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) (explaining that even where "a trial court's ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling”).

      . Judy argued that the requirement in the final judgment for her to transfer the Braden-ton house to Lindenau within ten days exceeded the scope of relief sought by Lindenau in her amended counterclaim and improperly required Judy to distribute trust property while the action was still pending.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    PLAZA TOWER REALTY GROUP, LLC, Appellant, v. 300 SOUTH DUVAL ASSOCIATES, LLC, and The Union Labor Life Insurance Company, Appellees.
    No. 3D16-1491
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017.
    Rehearing Denied August 3, 2017
    Vezina, Lawrence & Piscitelli, P.A., and Michael Piscitelli and Jodi N. Cohen (Fort Lauderdale), for appellant.
    Woodbury, Santiago & Correoso, P.A., and Michael Woodbury and Margaret Bre-nan Correoso, for appellees.
    Carlton Fields Jorden Burt, P.A., and Matthew J. Conigliaro (Tampa), for the Florida Association of Realtors, Inc., d/b/a Florida Realtors, as amicus curiae. .
    Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
   ROTHENBERG, J.

The plaintiff below, Plaza Tower Realty-Group, LLC (“the Broker”); appeals from a final summary judgment entered in favor of defendants 300 South Duval Associates, LLG (“300 South Duval”) and The Union Labor Life Insurance Company (“Union Labor”) (collectively, “the Lenders”). The trial court determined that, pursuant to the Exclusive Agency Listing Agreement (“listing agreement”) between the Broker and the developer, Kleman Plaza, LLLP (“the Developer” or “Owner”), the Broker did not have an “ownership interest” in the deposits retained by the Developer and subsequently remitted from the Developer to the Lenders to reduce the balance of the Developer’s construction loan after contracted purchasers failed to close.

Based on the clear and unambiguous language in the listing agreement, we conclude that the Broker did have an “ownership interest” in a portion of the retained deposits because the listing agreement identifies the retained deposits as the particular-fund from which the Broker will be paid any commission due and owing in the event that a unit fails to close. Therefore, we reverse the final summary judgment entered in favor of the Lenders, and- remand for further proceedings consistent with this .opinion.

I. FACTS

In May 2004, the Broker and the Developer entered into the listing agreement, which includes the following provisions that govern the resolution of the issue raised in this appeal:.

7. Compensation. As compensation for all services to be rendered to Owner by Broker during the term of this Agreement, Owner and Broker agree that, subject to the terms hereinafter set forth, Broker shall be deemed to have earned and be entitled to receive sales commissions only in accordance with the following:

(e) .Anything contrary herein notwithstanding,. Broker shall not be entitled to any commission whatsoever as to the sale of a Unit, which-fails to close for any reason whatsoever, including, without limitation, the default of Owner, provided, however, that in the event that a contract is cancelled and/or a sale fails to close for any 'reason whatsoever, and Owner retains the purchaser’s deposits in connection therewith, then, in such event, Broker shall be paid a commission equal to one third of the amount of the retained deposits less all collections expenses, but not to exceed the full commission Broker would have earned had the defaulting buyer closed on his purchase contract....
(g) From the date when at least sixty percent (60%) of the Units have satisfied the Eligibility Requirement (the “Threshold- Date”), Owner shall pay Broker, as an advance, -fifteen percent (15%) of the commissions which Broker is eligible to receive. These advance commission payments shall also be retroactively applicable, to all Units that met the Eligibility Requirements prior to the Threshold Date. All commission advances paid to Broker’ shall be offset against final commission’s payable to Broker from Unit closings or from retained deposits pursuant to paragraph 7(e) above....

(emphasis added).

The Broker secured 100 pre-construction purchase and sales agreements pursuant to the listing agreement. Thereafter, the contracted purchasers’ deposits were placed into an escrow account at First American Title Insurance Company (“Escrow Agent”) pursuant to the escrow agreement between the Developer and the Escrow Agent.

In June 2006, Union Labor loaned the Developer over $44,000,000 to construct the project. The construction loan was secured by a first mortgage and a collateral assignment covering all of the Developer’s assets, including all of the Developer’s rights, title, and interests to deposits made pursuant to the sales and purchase agreements. The construction loan was subsequently assigned to Union Labor’s subsidiary, 300 South Duval, in late 2009.

In 2009, seventy-nine of the 100 contracted purchasers failed to close (“defaulted purchasers”), and the Developer retained the defaulted purchasers’ deposits. Thereafter, the Broker informed the Developer that it (the Broker) was entitled to a portion of the retained deposits for commissions due to the Broker for the units that failed to close. Nonetheless, in July 2009, the Developer instructed the Escrow Agent to release all of the retained deposits. As instructed, the Escrow Agent released over $2,400,000 in retained deposits to the Developer.

On September 2, 2009, without the Broker’s consent, the Developer transferred the $2,400,000 in retained deposits to Union Labor, and Union Labor applied the entire amount to the balance of the Developer’s construction loan. The Broker demanded the payment of commissions due and owing under the listing agreement for the units that failed to close, but the funds were not remitted to the Broker.

Thereafter,- the Broker initiated an action against the Lenders, with the operative complaint asserting claims for unjust enrichment and conversion. The claims were based on the Broker’s assertion that that it had an interest in a portion of the retained deposits that were ultimately remitted to Union Labor without the Broker’s consent.

The Broker and the Lenders filed competing motions for partial summary judgment relating to which party had a superi- or legal interest in the retained deposits. At a hearing conducted on the parties’ motions, the Broker argued that the listing agreement identifies "a particular fund for the payment of commissions due to the Broker in the event that a closing fails to take place—the retained deposits—and therefore, the Broker had an “ownership interest” in that portion of the retained deposits. In contrast, the Lenders argued that the listing agreement did not provide the Broker with an “ownership interest” in the retained deposits, and therefore, the Lenders’ secured first priority interest in all of the Developer’s rights and interest in deposits made pursuant to the sales and purchase agreements controlled.

At the conclusion of the hearing, the trial court entered final summary judgment in favor of the Lenders and denied the Broker’s motion for partial summary judgment. The trial court’s written order provides:

The Listing Agreement at issues gives [the Broker] no legal ownership interest in any portion of the defaulted deposits as a matter of law. Here, without such ownership interest in the deposits, [the Broker] is, at best, a general unsecured creditor of its contracting seller, and there can be no conversion or unjust enrichment claim against [the Lenders], whose first priority interest in the deposits extended to all deposits remitted to and owned by the Developer.

(citations omitted). The Broker’s appeal followed.

II. ANALYSIS

The Broker contends that the trial court erred by entering final summary judgment in favor of the Lenders because, contrary to the trial court’s determination, the listing agreement identifies a particular fund from which commissions for units that failed to close are to be paid to the Broker—the retained deposits—and therefore, the Broker had an “ownership interest” in the retained funds. Because the issue before this Court is the interpretation of the listing agreement, our review is de novo. See Real Estate Value Co. v. Carnival Corp., 92 So.3d 255, 260 (Fla. 3d DCA 2012) (“The interpretation of a contract, including whether the contract or one of its terms is ambiguous, is a matter of law subject to de novo review.”).

The parties agree that if the listing agreement between the Broker and the Developer provides that the commissions due and owing to the Broker for the units that failed to close are to be paid from a particular fund—the retained deposits— then the Broker had an “ownership interest” in a portion of the retained deposits. See Cohen Fin., LP v. KMC/EC II, LLC, 967 So.2d 224 (Fla. 3d DCA 2007) (holding that, becáuse the brókerage agreement failed to identify a particular fund from which the broker is to be paid his fee, the broker does not have a legal interest in any specific fund); Riverland & Indian Sun L.C. v. L.J. Melody & Co., 879 So.2d 1271, 1271-72 (Fla. 3d DCA 2004) (holding that the “the brokerage agreement identified a particular fund to be set aside at the closing for the broker’s benefit” where the brokerage agreement provides the fee due to the broker “will be paid by wire transfer out of sale proceeds by the closing as a line item on the closing statement,” and therefore, “the broker was clearly a named beneficiary of a particular fund and, therefore, a constructive trust was alleged and the temporary injunction was proper”); Campbell v. Pace, 369 So.2d 413, 414 (Fla. 3d DCA 1979) (affirming imposition' of constructive trust where the letter agreement between the property owner and the brokers provided that the brokers would be paid their commissions from a particular fund). Further, if the Broker had an “ownership interest” in a portion of the retained deposits, the Lenders’ first priority interest in the retained deposits did not extend to the portion of the retained deposits in which the Broker had an “ownership interest.” Thus, as the trial court correctly found, if the Broker did not have an “ownership interest” in any portion of the retained deposits, the Broker was, “at best, a general unsecured creditor of its contracting seller, and there can bé no conversion or unjust enrichment claim against [the Lenders], whose first priority interest in the deposits extended to all deposits remitted to and owned by the Developer.” (emphasis added).

The resolution of the issue before this Court is controlled by paragraphs 7(e) and 7(g) of the listing agreement. Paragraph 7(e) sets forth when the Broker is entitled to receive a commission for units that fail to close, and provides the method for calculating the Broker’s commission on those units. Although the calculation of the Broker’s commission is based, in part, on the amount of the retained deposits—“Broker shall be paid a commission equal to one third of the amount of the retained deposits less all collections expenses, but not to exceed the full commission Broker would have earned” (emphasis added)—paragraph 7(e) does not provide that the Broker’s commission is to be paid from the retained deposits. Therefore, standing alone, paragraph 7(e) does not identify a particular fund for the payment of commissions due to the Broker for units that failed to close. However, paragraph 7(g) of the listing agreement reflects that any unpaid commissions were to be paid from two particular funds: (1) from unit closings when a unit closes, or (2) as is relevant in the instant case, from retained deposits when a unit does not close.

We, therefore, conclude that the listing agreement clearly identifies a particular fund for the payment of commissions due to the Broker in the event that a unit fails to close—the retained deposits. Thus, the Broker had an “ownership interest” in a portion of the retained deposits, and the trial court erred, as a matter of law, by entering final summary judgment in favor of the Lenders. Accordingly, we reverse the Anal summary judgment entered in favor of the Lenders, and remand for further proceedings, including the consideration of the Lenders’ motion for summary judgment based on its statute of limitations defense.

Reversed and remanded.


author: SLEET, Judge.

text:
    U.S. BANK NATIONAL ASSOCIATION, as trustee, ON BEHALF OF the HOLDERS OF the HOME EQUITY ASSET TRUST 2002-4 HOME EQUITY PASS-THROUGH CERTIFICATES, SERIES 2002-4, Appellant, v. Donald A. DOEPKER and Mary C. Doepker, Appellees.
    Case No. 2D15-5307
    District Court of Appeal of Florida, Second District.
    Opinion filed May 24, 2017
    Rehearing Denied July 19, 2017

      Allison Morat and Ronnie J. Bitman of Pearson Bitman, LLP, Maitland, for Appellant;
    Mark P. Stopa of the Stopa Law' Firm, Tampa, for Appellees.
   SLEET, Judge.

U.S. Bank National Association appeals the order granting summary judgment in favor of Donald and Mary Doepker and dismissing its complaint without prejudice to file a new lawsuit. The Doepkers challenged'the bank’s compliance with paragraph 22 of the mortgage by filing a single motion seeking both summary judgment and dismissal of the bank’s complaint. The trial court ultimately agreed with the Doepkers’ argument that the bank’s notice of default was defective and granted the motion to dismiss and entered summary judgment for the Doepkers. This was error. ’

We review an order granting summary judgment or a motion to dismiss de novo. Konsulian v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011); Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007). Motions to dismiss and for summary judgment are not .interchangeable, and one may not be substituted for another. Holland v. Anheuser Busch, Inc., 643 So.2d 621, 622-23 (Fla. 2d DCA 1994).

[C]ounsel must remember that [a motion for summary judgment and a motion to dismiss have] separate purpose[s] under our rules of civil procedure. A motion to dismiss is ■ customarily designed to test the legal sufficiency of a complaint to state a cause of action, not to determine issues of ultimate fact. The function of a motion for summary judgment is to determine if the parties can offer sufficient proof to support the issues framed in their pleadings.

Behnam v. Zadeh, 132 So.3d 951, 952 (Fla. 1st DCA 2014) (second and third alterations in original) (quoting Holland, 643 So.2d at 623-24). Because the bank’s notice of default substantially complied with paragraph 22 in this case, the Doepkers’ motion should not have been granted under either theory of relief.

“Paragraph 22 default notices are reviewed for substantial compliance and are sufficient when they advise the borrower of all essential information concerning the borrower’s default and the action required to cure it.” Ocwen Loan Servicing, LLC v. Osmundsen, 204 So.3d 118, 119 (Fla. 2d DCA 2016) (citing Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 14-15 (Fla. 2d DCA 2015) (“[W]hen the content of a lender’s notice letter is nearly equivalent to or varies in only immaterial respects from what the mortgage requires, the letter substantially complies, and a minor variation from the terms of paragraph twenty-two should not preclude a foreclosure action.”)).

Paragraph 22 of the Doepkers’ mortgage required that the bank’s notice of default specify:

(a) the default;
(b) the action required to cure the default;
(c) a date, not less than 30 days from the date the notice is given to [the Doepk-ers], by which the default must be cured; and
(d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.

The bank’s breach letter advised the Doepkers that they were in default and that to cure the default they needed to pay $83,638.47 within thirty days, specifically by February 6, 2014, and that failing to cure would result in acceleration of the debt, foreclosure, and sale of the property. The letter also required that the Doepkers make any “payments which may subsequently accrue[] on or before the [c]ure [d]ate” in addition to the $83,638.47 required to cure the default and provided a phone number that the Doepkers could call “[t]o obtain the amount required to bring the loan current.”

The bank’s breach letter substantially complied with paragraph 22 of the mortgage. See Diaz v. Wells Fargo Bank, N.A., 189 So.3d 279, 281 (Fla. 5th DCA 2016) (holding that a breach letter that advised the recipients of the default, the specific amount due including “any payments or other charges that become , due under the note and mortgage between the date of the letter and the date of the satisfying payment,” and a date to cure substantially complied with paragraph 22); Bank of Am. v. Cadet, 183 So.3d 477, 478 (Fla. 3d DCA 2016) (holding that a breach letter that notified the recipient of the default, specified an amount due to cure that included “any additional payments, late charges, fees and charges which became due,” and provided a deadline for payment substantially complied with the requirements of paragraph 22). Contrary to the Doepkers’ arguments on appeal and below, there is no indication that the breach letter required any additional payment not due under the note and mortgage. Moreover, if the Doepkers were unsure of the amount due under the note and mortgage, the letter also provided a telephone number to call with questions. See Osmundsen, 204 So.3d at 119 (holding that a breach letter that omitted the address where payment was to be sent substantially complied with paragraph 22 when it contained a self-addressed envelope for payment and a telephone number that the recipients could call with questions).

On appeal, the Doepkers challenge the delivery of the breach letter as an alternative theory to support summary judgment in their favor, pointing to their testimony that they never received the bank’s notice of default. However, this argument was not raised below and .is therefore unpreserved. Furthermore, this court rejected an identical argument raised in JPMorgan Chase Bank, N.A. v. Ostrander, 201 So.3d 1281, 1283 (Fla. 2d DCA 2016). In Ostrander, we explained that an affidavit alleging that the homeowner never received the notice of default was insufficient to support summary judgment in the homeowner’s favor because the mortgage requires only that the bank mail the notice, not that it be received. Id. (citing Roman v. Wells Fargo Bank, 143 So.3d 489, 490 (Fla. 5th DCA 2014)). Therefore, this argument would not support the order on appeal even if the Doepkers had properly preserved it below.

Because the trial court erred in granting summary judgment and dismissing the bank’s complaint when the bank substantially complied with paragraph 22, we reverse the order dismissing the bank’s complaint and granting summary judgment in favor of the Doepkers.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.


author: KHOUZAM, Judge.

text:
    John PULLING, Jr., and Marsha Pulling, Appellants, v. BILLMYRE ENTERPRISES, INC., and Gary Billmyre, Individually, Appellees.
    Case Nos. 2D16-1770, 2D16-3734, 2D16-4367
    District Court of Appeal of Florida, Second District.
    Opinion filed May 26, 2017
    Rehearing Denied July 14, 2017

      John H. Pelzer of Greenspoon Marder, P.A., Ft. Lauderdale; and Thomas R. Bolf of Thomas R. Bolf, P.A., Plantation, for Appellants.
    Thomas William Franchino of Thomas W. Franchino, P.A., Naples, for Appellees.
   KHOUZAM, Judge.

In these consolidated appeals, John and Marsha Pulling challenge the trial court’s award of attorney’s fees and costs to Bill-myre Enterprises and Gary Billmyre (collectively Billmyre). We write to clarify our jurisdiction in these three appeals.

I. 2D16-1770

Following a jury trial on the Pull-ings’ claims against Billmyre, the trial court entered a March 24, 2016, order awarding costs, which found an entitlement but did not determine an amount for costs. The Pullings filed a notice of appeal which resulted in appeal 2D16-1770. An order that finds an entitlement to costs but fails to determine an amount is a nonfinal nonappealable order. See Ritter v. Ritter, 690 So.2d 1372, 1376 (Fla. 2d DCA 1997) (denying review of attorney’s fee and cost award because the judgment found an entitlement to attorney’s fees and costs but failed to specify an amount). Accordingly, appeal 2D16-1770 is dismissed.

II. 2D16-3734

The trial court rendered a subsequent order on July 14, 2016, that determined an amount for certain costs owed to Billmyre, determined an entitlement to attorney’s fees, and ordered the parties to mediation to “address all pending issues regarding the awards of costs and attorney’s fees.” This order is also a nonfinal nonappealable order. See Smith v. Smith, 169 So.3d 220, 221 (Fla. 2d DCA 2015) (“[A]n order which only determines the right to attorney’s fees without setting the amount is a nonappealable, nonfinal order.” (quoting McIlveen v. McIlveen, 644 So.2d 612, 612 (Fla. 2d DCA 1994))); Nastasi v. Thomas, 88 So.3d 407, 410 (Fla. 4th DCA 2012) (holding that an order sending the parties to mediation was not a final appealable order because it contemplated further judicial labor following mediation). Accordingly, we dismiss appeal 2D16-3734.

III.2D16^367

Finally, the trial court rendered a supplemental final judgment inclusive of fees and costs on September 12, 2016. The judgment awarded specific sums of costs and attorney’s fees to Billmyre. The Pull-ings filed a notice of appeal, resulting in appeal 2D16-4367. The supplemental final judgment is a final appealable order. See Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co. of E. Fla., 483 So.2d 852, 853 (Fla. 5th DCA 1986) (“An order granting attorney’s fees and costs after entry of a final judgment is a final appealable order.”); see also Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 165 (Fla. 5th DCA 2010) (“[A]n attorney’s fee award is not appealable until both the issues of entitlement and amount are ruled upon.”). The Pullings have raised a number of issues challenging the supplemental final judgment. Having thoroughly reviewed their arguments, we affirm the supplemental final judgment without comment.

Dismissed in part; affirmed in part.

MORRIS and BLACK, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Reginald ANDERSON and Michelle Anderson, Appellants, v. TAYLOR MORRISON OF FLORIDA, INC., Appellee.
    Case No. 2D16-314
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2017
    Rehearing Denied July 14, 2017

      Matthew L. Wilson and Joshua E. Burnett of Burnett Wilson Reeder, Tampa, for Appellants.
    J. Carlton Mitchel and Neal A. Sivyer of Sivyer Barlow & Watson, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Reginald and Michelle Anderson appeal a nonfinal order that stays proceedings in the trial court and compels arbitration in this action against their home builder, Taylor Morrison of Florida, Inc. (the Builder). Because the arbitration provision contained in the limited warranty (the Warranty)-that the Builder provided to the Andersons limits their statutory remedies, we conclude that the provision is void as against public policy. Therefore, we reverse the trial court’s order and remand for further proceedings. Based on this disposition, we do not reach the remaining issue the Andersons raise of unconsciona-bility.

In April 2009, the Andersons entered into a sales agreement with the Builder to purchase a home. The Andersons took possession of the home in November 2009. In June 2015, the Andersons provided notice to the Builder pursuant to section 558.004, Florida Statutes (2015), of construction defects based on building code violations. The notice referred to an attached engineering report and stated that the report found “construction defects associated with the application of the exterior stucco system to [the Andersons’] home.” The report specified that the installation failed to meet the applicable building code provisions and that at multiple locations the cladding material had an inadequate thickness.

Unable to resolve the matter, the Andersons' filed a three-count complaint in September 2015 alleging (1) violation of the Florida Building Code under section 553.84, Florida Statutes (2009); (2) breach of contract; and (3) violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), §§ 501.201-.213, Fla. . Stat. (2009). The Andersons alleged that the Builder violated the building code “by inadequately and improperly installing the stucco system on” their home. They claimed that the code violations were latent and not readily observable or known to them “until damages began to manifest themselves in the form of cracking to the exterior stucco years after construction ended.” They also alleged that the Builder knew or should have known that the building code was violated during the construction of the home and that the violations caused damages to them.

The Builder sought to compel arbitration on the basis of a provision in the Warranty provided with the purchase of the home. The Andersons argued that the arbitration provision was- void as against public policy because it barred recovery of all statutory and contractual claims and that it was unconscionable. After a hearing,-the trial court granted the motion to compel arbitration and found, the arbitration provision valid. In doing so, the trial court appeared to implicitly reject the argument that the provision was void as against public policy. The Andersons now challenge the order compelling arbitration, focusing on the statutory remedy for the alleged building code violations.

The sales agreement between the parties states that the Builder will provide the Andersons with a warranty in place of all other warranties, including those arising under state law. After closing, the Builder’s sole responsibility “is to cover items under warranty.” The Builder provided a copy of the three-page Warranty with the sales agreement. The Andersons signed an acknowledgement that they had received the copy, reviewed it, and agreed to its terms and conditions. The Warranty includes a one-year warranty providing that materials and workmanship in the home will be in compliance with the review criteria that are contained in “the Customer Care Guidelines,” a separate document. The Warranty also includes a ten-year warranty for “Major Structural Issues” as defined in the document.

Based on the definition of major structural defect in the Warranty, which includes items such as foundation systems, load-bearing beams, and bearing walls, the inadequate application of exterior stucco does not appear to fall within the coverage of the ten-year limited warranty. The one-year limited warranty addresses stucco finishes by reference to the review criteria, which provides that small cracks are common and that cracks that exceed one-eighth inch in width “are considered excessive” and are covered. The warranty does not otherwise address the proper application of stucco, including any required thickness. The complaint and notice allege violations of the building code based on improper application of stucco but do not specifically address whether the cracks in the home fall within the one-year warranty’s definition of excessive. Rather, the Andersons asserted that the building code violations were not readily observable or known until the cracking appeared well after the one-year warranty expired.

With respect to arbitration, the Warranty contains an arbitration provision on the third page in a section titled Dispute Settlement. That section provides as follows:

Dispute Settlement
This Dispute Settlement provision sets forth the exclusive remedy for all disputes, claims or controversies arising out of, or in any manner related to, this Warranty or any alleged issues in your home or property. All disputes, claims or controversies which cannot be resolved between TM [the Builder] and you shall be submitted by you, not later than ninety (90) days after the expiration of the applicable warranty period, to the American Arbitration Association (“Arbitrator”) for resolution in accordance with the rules and regulations of the Arbitrator. The final decision of the Arbitrator shall be binding on all parties and shall include final decisions relating to enforcement of the terms and provisions of this Warranty.

In addition, at the top of page one a statement in all capitals advises that the Warranty contains a binding arbitration provision, that the consumer should read the document in its entirety, and that the document contains exclusions.

The Warranty also contains a lengthy disclaimer of liability provision before the dispute settlement section. At the end of the disclaimer provision it states as follows:

BUYER AGREES THAT THIS LIMITED WARRANTY SHALL BE THE EXCLUSIVE REMEDY FOR ANY ISSUES IN DESIGN, MATERIALS OR WORKMANSHIP. BUYER HERBY [sic] ASSUMES THE RISK OF ALL OTHER LOSS RESULTING FROM SUCH ISSUES, INCLUDING ANY CLAIMS FOR PROPERTY DAMAGE OR PERSONAL INJURY, AND WAIVE [sic] ALL OTHER CLAIMS, WHETHER IN CONTRACT, TORT OR OTHERWISE.

The Andersons contend that the arbitration provision, particularly when viewed in context with the limitation of remedies contained in the disclaimer provision, is void as against public policy because it prohibits any remedy, whether in tort, contract, or by statute, apart from items covered by the Warranty.

It is for the court, not the arbitrator, to determine whether a valid arbitration agreement exists. Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 459 (Fla. 2011). Our review of the validity of an arbitration agreement on the challenge that it violates public policy is a question of law subject to de novo review. Id. at 471. If an arbitration agreement violates public policy, then no valid agreement exists. Id. at 465; Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 398 (Fla. 2005) (“No valid agreement exists if the arbitration clause is unenforceable on public policy grounds.”).

An arbitration agreement is unenforceable for public policy reasons when it defeats the remedial purpose of a statute or prohibits the plaintiff from obtaining meaningful relief under the statutory scheme. S.D.S. Autos, Inc. v. Chrzanowski, 976 So.2d 600, 606 (Fla. 1st DCA 2007) (dealing with FDUTPA). “A remedial statute is one which confers or changes a remedy.” Shotts, 86 So.3d at 473 (quoting Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 298 (Fla. 4th DCA 2005)) (dealing with Nursing Home Residents’ Rights Act). Section 553.84 is a remedial statute because it provides relief for a person whose home has been built in violation of the building code, “[n]othwithstand-ing any other remedies available.”

The Builder contends that if the challenge is to the agreement as a whole but not specifically to the arbitration provision, the issue of the validity of the agreement is for the arbitrator to decide. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444, 449, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (stating that the borrowers contended that the contract as a whole was invalid based on a usurious finance charge); Kaplan v. Divosta Homes, L.P., 983 So.2d 1208, 1210 (Fla. 2d DCA 2008) (stating that the purchasers contended that the entire sales contract was void due to fraud); Hound Mounds, Inc. v. Finch, 153 So.3d 368, 371 (Fla. 4th DCA 2014) (stating that the franchisee alleged the invalidity of the entire franchise agreement and did not specifically attack the arbitration provision). Here, though, the Andersons do not challenge the Warranty as a whole or the sales agreement pursuant to which it was issued. Rather, they challenge the arbitration provision because while it “sets forth the exclusive remedy for all disputes” arising from or related to the Warranty and all issues with the home or property, it precludes their ability to pursue their statutory claim.

The Builder also cites to Pulte Home Corp. v. Bay at Cypress Creek Homeowners’ Ass’n, 118 So.3d 957, 958 (Fla. 2d DCA 2013), in which this court recognized that statutory claims for violation, of a building code can be subject to arbitration. But there the arbitration agreement applied to claims for breach of warranty and statutory claims. Id.

Here, the' sales agreement' specifies that the Builder’s responsibility after closing is only as to items that are covered by the Warranty, and the disclaimer provision precludes any. claims that are not covered by the Warranty, “whether in contract, tort or otherwise.” The arbitration provision states that “[t]his Dispute Settlement provision sets forth the exclusive remedy for all disputes, claims or controversies arising out of’ or related to the Warranty or issues with the home or property. The next sentence states that all unresolved “disputes, claims or controversies” must be submitted to arbitration. These provisions establish that the only remedy afforded to the Andersons through arbitration is for specified Warranty claims and that all other claims, including the Andersons’ statutory claims, are precluded.

Yet the Builder insists that despite the language in the documents, a non-warranty claim could be, brought and must be arbitrated. We cannot agree. As this court stated in a case involving similar stucco claims, arbitration cannot be compelled where “the parties did not agree to arbitrate claims such as those presented here.” Nunez v. Westfield Homes of Fla., Inc., 925 So.2d 1108, 1109 (Fla. 2d DCA 2006).

In Nunez, the homeowners brought a claim alleging that the builder violated the building code by misapplying the exterior stucco. The builder moved to compel arbitration in accordance with its limited home warranty that required arbitration of unresolved warranty issues. Id. The court' observed that the limited warranty did not obligate the builder to conform the home to the applicable building codes. Id. at 1110. Moreover, while the warranty required the builder to repair exterior cracks in stucco that exceeded one-eighth of an inch in width, the homeowners’ claim was not based on that condition. Id. The warranty in Nunez extended only to specified circumstances, not including building code violations, and the builder “chose to limit the scope of disputes subject to arbitration.” Id.

Here, the language of the arbitration provision is seemingly broader than the arbitration language discussed in Nunez. The arbitration provision in the Warranty indicates that all issues related to the Warranty, the home, or the property are to be arbitrated. But read in context with other provisions in the Warranty, particularly the disclaimer provision, it is evident that the alleged building code violations cannot be remedied through arbitration because the claims are not covered by the Warranty and all non-Warranty claims are waived. As the Florida Supreme Court stated in Shotts, “any arbitration agreement that substantially diminishes or circumvents these [statutory] remedies stands in violation of the public policy of the State of Florida and is unenforceable.” 86 So.3d at 474. Simply put, the arbitration provision here effectively limits the Andersons’ remedies to Warranty claims, as defined in the documents, and does not just substantially diminish the Andersons’ statutory remedy for a violation of the building code but totally eliminates it.

Moreover, contrary to the Builder’s argument this is not a situation where the challenge is. to the validity of the limited warranty . contract as a whole. The Andersons do .not allege that the contract is usurious or was entered into based on fraud. See Buckeye Check Cashing, 546 U.S. at 444, 126 S.Ct. 1204; Kaplan, 983 So.2d at 1210. Instead, they specifically challenged the arbitration provision because it precludes enforcement of a statutory remedy that is available to them.

Because the arbitration provision limited the Andersons to warranty claims and prevents their assertion of a statutory claim, the arbitration provision violates public policy and is unenforceable. See Shotts, 86 So.3d at 474-75, Accordingly, we reverse the order compelling arbitration and remand to the trial court for further proceedings on the Andersons’ complaint.

Reversed and remanded.

KELLY and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Daniel CARNET, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0703
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017
    Daniel Carnet, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Tucker v. State, 459 So.2d 306, 309 (Fla. 1984) (“We therefore hold that failure to allege venue in an indictment or information is an error of form, not of substance and such a defect will not render the charging instrument void absent a showing of prejudice to the defendant.”); Connolly v. State, 172 So.3d 893, 902 (Fla. 3d DCA 2015) (en banc) (“The case law is clear: The failure to object to a technical deficiency in the charging document constitutes a waiver, and the time to raise a challenge to the charging document is prior to the jury’s verdict so the deficiency can be cured, not after the verdict is rendered.”); Fernandez-Tellez v. State, 89 So.3d 1070, 1070-71 (Fla. 3d DCA 2012) (“[A] motion for postconviction relief will not be considered if filed more than two years after the judgment and sentence become final, subject to exceptions for newly-discovered evidence, retroactive application of a fundamental constitutional right, or failure of retained counsel to file a timely postconviction motion”).


author: EMAS, J.

text:
    Norman E. CAISON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-656
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017.

      Norman E. Caison, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
   EMAS, J.

We affirm the trial court’s order denying Norman Caison’s motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In his 2016 motion, Caison challenges the procedure by which the trial court imposed court costs (totaling $255) during his sentencing in 1995. Caison’s argument is wholly without merit.

ORDER TO SHOW CAUSE

Further, we note that Caison has filed at least sixteen separate appeals or original proceedings with this court related to lower court ease number 93-38756. With one exception, this court has affirmed the lower court or otherwise denied Caison relief on appeal. Caison has engaged in the filing of meritless, frivolous and successive claims, and his actions have caused this court to expend precious and finite judicial resources which could otherwise be devoted to cases raising legitimate claims. Hedrick v. State, 6 So.3d 688, 691 (Fla. 4th DCA 2009) (noting: “A legitimate claim that may merit relief is more likely to be overlooked if buried within a forest of frivolous claims.”)

While pro se parties must be afforded a genuine and adequate opportunity to exercise their constitutional right of access to the courts, that right is not unfettered. The right to proceed pro se may be forfeited where it is determined, after proper notice and an opportunity to be heard, that the party has abused the judicial process by the continued filing of successive or meritless collateral claims in a criminal proceeding. State v. Spencer, 751 So.2d 47 (Fla. 1999). As our sister court aptly described it, there comes a point when “enough is enough.” Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995). Although termination of the right to proceed pro se will undoubtedly impose a burden on a litigant who may be unable to afford counsel, courts must strike a balance between the pro se litigant’s right to participate in the judicial process and the courts’ authority to protect the judicial process from abuse.

Therefore, Appellant Norman Caison is hereby directed to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his convictions, judgments and sentences in circuit court case number 93-38756. Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to circuit court case number 93-38756 unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, and absent a showing of good cause, any such further and unauthorized pro se filings by this defendant will subject Caison to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017).

      . The costs include: mandatory court costs of $50,00 imposed pursuant to section 960.20, Fla. Stat. (1993) (Crimes Compensation Trust Fund); mandatory court costs of $3.00 imposed pursuant to section 943.25(3), Fla. Stat. (1993) (Criminal Justice Trust Fund); discretionary court costs of $2.00 pursuant to section 943.25(13) (Criminal Justice Education by Municipalities and Counties); and mandatory court costs of $200,00 imposed pursuant to section 27.3455(1), Fla. Stat. (1993) (Local Government Criminal Justice Trust Fund).

      . Caison asserts that the trial court imposed these costs without orally pronouncing them and without giving Caison the opportunity to contest their imposition. First, these costs and fees are-imposed pursuant to, and as authorized by, statute, and the trial court had no discretion with regard to the amount of each cost item imposed. Second, even if Caison could raise a viable claim regarding the imposition of these court costs, it would not be under rule 3.800(a), as Caison does not attack the costs themselves as illegal, but rather alleges an infirmity in the procedure by which the trial court imposed them. Such á claim is not cognizable by way of a motion to correct illegal sentence under rule 3.800(a). See, e,g., Durant v. State, 177 So.3d 995 (Fla. 5th DCA 2015); Lindquist v. State, 155 So.3d 1193 (Fla. 2d DCA 2014); Walden v. State, 112 So.3d 578 (Fla. 4th DCA 2013). See also Jackson v. State, 983 So.2d 562 (Fla. 2008); Maddox v. State, 760 So.2d 89 (Fla. 2000).

      . See Caison v. State, 3D17-656; Caison v. State, 3D17-625; Caison v. State, 3D17-623; Caison v. State, 3D17-572; Caison v. State, 3D16-2798; Caison v. State, 3D16-2050; Caison v. State, 3D16-1541; Caison v. State, 3D16-1524; Caison v. State, 3D16-1385; Caison v. State, 3D16-868; Caison v. State, 3D16-715; Caison v. State, 3D14-2571; Caison v. State, 3D 14-190; Caison v. State, 3D12-369; Caison v. State, 3D09-1972; Caison v. State, 3D01-718.

      . The singular exception is Caison v. State, 3D17-572, which granted no substantive relief, but instead merely granted Caison’s petition for a belated appeal of the instant trial court order.


text:
    Wilber RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-644
    District Court of Appeal of Florida, Third District.
    Opinion filed June 07, 2017

      Wilber Rodriguez, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
   ROTHENBERG, J.

-Wilber Rodriguez (“the defendant”)! appeals the trial court’s order denying his motion for postconviction relief and to vacate the judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

On December 2, 2013, pursuant to a negotiated plea with the State, the defendant, who was facing the possibility of consecutive life sentences, pled guilty to grand theft in the third degree, second degree murder, grand theft auto, and kidnapping, in exchange for a sentence to be determined by the trial court, but which was specifically limited to a range of 24.425 years in state prison (which was the bottom of the sentencing guidelines) to 40 years in state prison. The record reflects that prior to the entry of his plea, the defendant had confessed to committing these crimes and his confession was confirmed by physical evidence, including his DNA and fingerprints found at the various crime scenes. When the defendant entered his plea, he was fully colloquied by the trial .court as to his understanding of the plea, the rights he was waiving, and that the plea was being entered without any promises having been made to the defendant as to the sentence other than that it would be between 24.425 and 40 years in state prison.

On January 30, 2014, after conducting a full sentencing hearing at which the defendant’s trial counsel submitted a sentencing memorandum, - letters in support of the defendant, and other mitigation materials, the trial court sentenced the defendant to 40 years in state prison. Thereafter, the defendant filed a motion to withdraw his plea alleging that: (1) his trial counsel promised him the trial court would sentence him to fifteen years state prison followed by five years of probation; (2) he entered his plea because he knew his attorneys had. not fully investigated the case and they were not prepared for trial; and (3) his trial counsel failed to present- any mitigation at the sentence hearing.' The trial court denied the motion, and the defendant appeals. the order subsequently entered by the trial court.

The record, which includes the plea colloquy, clearly refutes these claims, and under Florida law, a defendant is bound by the statements he makes under oath during a plea colloquy. See. Henry v. State, 920 So.2d 1245, 1246 (Fla. 5th DCA 2006) (“This motion presents the all too common occurrence where defendants, in an attempt to invalidate their pleas, contend they committed perjury when they sought to have their pleas accepted. Defendants are bound by the statements made by them under oath Iacono, v. State, 930 So.2d 829, 831-32 (Fla. 4th DCA 2006) (holding that defendants “are bound by their sworn answers” during a plea colloquy). As the Fourth District Court of Appeal stated in Scheele v. State, 953 So.2d 782, 785 (Fla. 4th DCA 2007), “[a] plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in a case.”

When the defendant entered his plea, he swore under oath that no one had made any promises to him; no one had told him what sentence the trial court would impose; he had met with trial counsel on a number of occasions; and he was satisfied with counsel’s services and advice. The defendant also confirmed that there were no other witnesses, documents, or evidence he wanted his counsel to, investigate on his behalf. The defendant is, therefore, bound by these answers. See Alfred v. State, 71 So.3d 138, 139 (Fla. 4th DCA 2011) (holding that Alfred’s claim that counsel coached him to lie during the plea colloquy did not require an évidentiary hearing); Smith v. State, 41 So.3d 1037 (Fla. 1st DCA 2010) (holding that “[wjhere a defendant enters a plea and swears that he is satisfied with his counsel’s advice, he may not later attack counsel’s effectiveness for failure to investigate or defend the charge”); Davis v. State, 938 So.2d 555, 557 (Fla. 1st DCA 2006) (“In the instant case, the appellant clearly states on the record that he was satisfied with his attorney’s services. Thus, he cannot now assert that at the time, of the plea’s entry he had serious doubts about his attorney’s effectiveness.”).. Accordingly, we affirm he denial of the order under review.

Affirmed.


text:
    ISLA BLUE DEVELOPMENT, LLC, Appellant, v. Trade C. MOORE, Appellee.
    Case No. 2D16-1718
    District Court of Appeal of Florida, Second District.
    Opinion filed June 14, 2017
    Rehearing Denied July 17, 2017

      Gregory W. Goetz of Goetz & Goetz, Fort Myers, for Appellant.
    Matthew S. Toll of Toll Law, Cape Coral, for Appellee.
   SLEET, Judge.

Isla Blue Development, LLC, challenges the trial court’s final order denying its motion in which it sought attorney fees pursuant to section 57.105, Florida Statutes (2014), as a sanction against Tracie Moore and her counsel Matthew Toll. The fees were sought in Moore’s lawsuit against Isla Blue that alleged nondisclosure of latent defects in a real estate transaction. In its order, the trial court denied the motion for section 57.105 fees on both procedural and substantive grounds. Because we conclude that the trial court did not abuse its discretion in denying the motion on substantive grounds, we affirm. We write only to explain that the trial court erred in applying Florida Rule of Judicial Administration 2.516 to a section 57.105 safe harbor notice and concluding that the motion should also be denied on procedural grounds.

Section 57.105(4) requires that “[a] motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within [twenty-one] days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Rule 2.516(b)(1) states that “[a]ll documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate.” Here, it was undisputed that Isla Blue sent its section 57.105 notice by U.S. mail and that the parties did not stipulate to such service. As such, the trial court concluded that Isla Blue failed to strictly comply with the requirements of rule 2.516(b).

However, subsection (a) of rule 2.516 provides as follows:

Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party.

(Emphasis added.) “Reading rule 2.516(a) and (b)(1) together, the word ‘documents’ in subsection (b)(1) is confined in meaning to ‘document[s] filed in any court proceeding.’” Boatright v. Philip Morris USA, Inc., 218 So.3d 962, 966, 2017 WL 1363915, at *4 (alteration in original).

And the specific language of section 57.105(4) states that the motion which provides the required twenty-one-day safe harbor notice “must be served but may not be filed with or presented to the court.” Accordingly, such a motion is only served on the opposing party but is not filed with the court, unlike the documents addressed in rule 2.516(a). Therefore, we conclude that the email service requirements of rule 2.516(b)(1) do not apply to such a motion. See Boatright, 218 So.3d at 967, (“[Because rule 2.516(a) expressly confines its scope to the service of documents ‘filed in any court proceeding,’ we are compelled to read the rule as excluding documents which are not ‘filed in any court proceeding.’”).

In so concluding, we certify conflict with Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014), in which the Fourth District applied the email requirements of rule 2.516 to a section 57.105 motion served to provide the required twenty-one-day safe harbor notice.

Affirmed; conflict certified.

SILBERMAN and LaROSE, JJ„ Concur.


author: SALTER, J.

text:
    Luz Mery SALCEDO, Appellants, v. WELLS FARGO BANK, N.A., Appellee.
    No. 3D16-430
    District Court of Appeal of Florida, Third District.
    Opinion filed June 21, 2017

      Easley Appellate Practice PLLC and Dorothy F. Easley; Austin Carr (Fort Lauderdale), for appellant.

      Before ROTHENBERG, SALTER and LOGUE, JJ.

      . Judge Rothenberg did not participate in oral argument in this case.

   SALTER, J.

■Luz Salcedo, plaintiff below, appeals the circuit court’s final judgment dismissing her third amended complaint against Wells Fargo Bank, N.A. (“Wells Fargo”), with prejudice. We affirm in part, reverse in part, and remand the case for further proceedings. The legal issues in the case are sufficiently novel to warrant description and analysis. These issues are:

1. Whether a judgment creditor has a statutory cause of action for negligence, or a cause of action for spoliation, against a garnishee which identifies and “places a hold” on a safe deposit box over which the judgment debtor has control, if the garnishee nevertheless allows unauthorized access to the safe deposit box and removal of its contents in breach of the garnishee’s statutory duty.

2. Whether a subsequent discharge of the underlying judgment in the bankruptcy of the judgment debtor precludes further prosecution of the judgment creditor’s claim or claims against the errant garnishee.

3. If such a claim survives the discharge in bankruptcy of the judgment debtor, whether (a) the claim must be prosecuted as part of the garnishment in the original lawsuit, or (b) the claim may be prosecuted as a new and independent lawsuit against the garnishee. Restated, is a final judgment in garnishment—which did not adjudicate Ms. Salcedo’s later claim of negligence relating to the contents of the safe deposit box—res judicata as to that negligence claim?

I. Allegations and Procedural Background

The complaint in the present action (“2014 Case”) followed Ms. Salcedo’s lengthy efforts in a prior case (“2006 Case”) to recover $1,025,000.00 she had invested with Felix Rodriguez in 2003. In 2006, Ms. Salcedo filed a circuit court lawsuit alleging fraud, breach of fiduciary duty, and other claims. In March 2012, Ms. Salcedo obtained a final judgment against Mr. Rodriguez’s widow, Maria Renzi de Rodriguez, both individually and in her capacity as personal representative of the estate of Felix Rodriguez, for $895,500.00.

A. Garnishment and the Safe Deposit Box

As part of her effort to collect the judgment against Ms. Renzi, Ms. Salcedo served a writ of - garnishment in the 2006 Case on the appellee, Wells Fargo, in July 2012. In August 2012, Wells Fargo filed an amended answer as garnishee disclosing two bank accounts (with collective balances of $2,078.41) in Ms. Renzi’s name, as well as a safe deposit box in the name of “Maria C. Renzi, Jorge A. Villasmil, Jr., Marion Cecilia Villasmil.” Wells Fargo’s amended answer reported that Wells Fargo “has placed a ‘hold’ on the Safe Deposit Box in accordance with Chapter 77, and primarily-Section 77.06(2) and (3), Florida Statutes.”

Later that month, the trial court entered (a) a “Final Garnishment' Judgment” requiring payment of Ms. Renzi’s funds from the two accounts to Ms. Salcedo, and (b) on the same day, an order directing Wells Fargo to open the safe deposit box to permit Ms. Salcedo to inventory the contents, and to “make available for inspection and copying any and all records, including original signatures, if available, showing who, if anyone, has had access' to the safe deposit box since the commencement ■ of this action on February 22, 2006.” The order for the inventory of the safe deposit box required the property in the box to be “held in the safe deposit pending further order of this court.”'

However, when counsel for Ms. Salcedo arrived at the Wells Fargo branch ready to inventory the contents of the safe deposit box and to review the records regarding it, she was informed for the first time that the contents of the box had been removed and Ms. Renzi’s account closed— well after Wells Fargo was served with the writ of garnishment.

B. Ms. Renzi’s Bankruptcy

Five days after the order regarding the safe deposit box and discovery that Ms, Salcedo’s son-in-law and daughter were given access to the box (despite Wells Fargo’s representation that a “hold” would be in effect), Ms. Renzi filed a liquidating bankruptcy under Chapter 7 of the United States Bankruptcy Code. Initially, Ms. Sal-cedo appeared in the bankruptcy case and filed an adversary complaint objecting to Ms. Renzi’s discharge as to Ms. Salcedo’s unsatisfied 2012 judgment against Ms. Renzi. Ultimately, however, Ms. Salcedo abandoned that complaint in the bankruptcy case and Ms. Renzi obtained a discharge of indebtedness under 11 U.S.C. § 727.

Wells Fargo maintains that Ms. Renzi’s discharge included the judgment against her held by Ms. Salcedo, such that there is no longer a judgment that can be collected in her 2Ó14 Case against Wells Fargo. Ms. Salcedo argues that the claim against Wells Fargo accrued before Ms. Renzi’s discharge was obtained, and that it is an independent claim to recover the value of funds or property taken from the safe deposit box that was on “hold,” in the garnishment, and that would have been turned over to Ms. Salcedo “but for” Wells Fargo’s mistake.

Ms. Renzi’s son-in-law and daughter, the Villasmils, opened a safe deposit box in their names only days after Ms. Renzi’s bankruptcy filing. Ms. Salcedo obtained an order for an inventory of that safe deposit box as well, and the inventory was prepared on December 12, 2012, but the complaint does not address whether Ms. Salce-do obtained the contents of that second safe deposit box.

C. The 2014 Case Against Wells Fargo

Ms. Renzi obtained her bankruptcy discharge in late 2013. Ms. Salcedo then filed the 2014 Case against Wells Fargo and its branch manager for negligence and spoliation. The complaint asserted two counts: “general negligence” based on Wells Fargo’s (and its branch manager’s) failure to supervise access to the safe deposit box despite the “hold” it represented would be in effect in its garnishment response, and “spoliation of evidence,” alleging that the loss of the contents of the safe deposit box constitutes spoliation of evidence under Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987). The negligence claim alleged a breach of duty by Wells Fargo under the garnishment law.

Ultimately the complaint was dismissed with prejudice for failure to state a legally sufficient cause of action. This appeal followed.

II. Analysis

In reviewing an order dismissing a complaint with prejudice, “[w]e assume that all allegations in the complaint are true, and we construe all reasonable inferences from those allegations in favor of [the plaintiff].” Greene v. Times Publ’g Co., 130 So.3d 724, 728 (Fla. 3d DCA 2014) (citing United Auto. Ins. Co. v. Law Offices of Michael Libman, 46 So.3d 1101, 1103-04 (Fla. 3d DCA 2010)). Our review for legal sufficiency in such a case “is limited solely to the complaint at issue and its attachments.” Santiago v. Mauna Loa Invs., LLC, 189 So.3d 752, 756 (Fla. 2016).

We next address in order the three issues identified at the outset of this opinion.

A. First Issue: Cause of Action

Section 77.06(1) and (2), Florida Statutes (2012)-, imposed a statutory duty upon Wells Fargo to secure the safe deposit box of Ms. Renzi, and thus any property within it, upon service of the writ of garnishment on July 13, 2012:

(1) Service of the writ shall make garnishee liable for all debts due by him or her to defendant and for any tangible or intangible personal property of defendant in the garnishee’s possession or control at the time of the service of the writ or at any time between the service and the time of the garnishee’s answer. Service of the writ creates a lien in or upon any such debts or property at the time of service or at the time such debts or property come into the garnishee’s possession or control.
(2) The garnishee shall report in its answer and retain, subject to the provisions of s. 77,19 and subject to disposition as provided in this chapter, any deposit, account, or tangible or intangible personal property in the possession or control of such garnishee; and the answer shall state the name or names and addresses, if known to the garnishee, of the defendant and any other persons having or appearing to have an ownership interest in the involved property.

The service of the writ on Wells Fargo thus (a) rendered the bank liable as garnishee for the tangible property in the safe deposit box under the bank’s control, and (b) created a statutory lien on that property. In re Giles, 271 B.R. 903, 906 (Bankr. M.D. Fla. 2002). The bank should have denied, but did not, further access to the safe deposit box pending service of its answer to the writ and a court directive regarding further disposition of the contents of the safe deposit box.

Wells Fargo’s amended answer to the writ on August 8, 2012, stated that the bank held certain funds of Ms. Renzi and that it “has placed a ‘hold’ on the Safe Deposit Box” in her name. In fact, however, Wells Fargo’s records indicated that it had allowed the safe deposit box to be closed on August 4, 2012, and the contents to be removed.

The liability of a garnishee bank for funds of its customer (the judgment debtor) negligently allowed to be withdrawn, following service of the writ is clear. Dixie Nat’l Bank v. Chase, 485 So.2d 1353 (Fla. 3d DCA 1986); Sun Bank/N. Fla Nat’l Ass’n v. Bisbee-Baldwin Ins. Co., 559 So.2d 351 (Fla. 1st DCA 1990). That liability also has been found to extend to attorneys holding funds of the judgment debtor. Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So.2d 628, 641 (Fla. 2008). There is no reason to apply a different interpretation of section 77.06 when tangible property in a safe deposit box, rather than the balance of a deposit account, is negligently released by the garnishee. Wells Fargo suggests that there is no private cause of action created by section 77.06, but we disagreed The statute does more than merely make provisión to secure the safety and welfare of the public; rather, it protects a garnishor/judgment creditor’s lien and rights to funds and property of the debtor upon service of the writ. See Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla. 1994); Arnold, Matheny & Eagan, P.A., 982 So.2d at 633.

The complaint included a second alleged cause of action—spoliation of evidence by Weils Fargo in allowing the release of the contents of the safe deposit box when those contents should have been restricted by Wells Fargo and held for disposition by the court. In support of this theory of liability, Ms. Salcedo cites Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987), and Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005). As these cases make clear, however, when spoliation is asserted against a negligent defendant in a particular case (“first-party spoliation of evidence,” Martino, 908 So.2d at 346), the remedy is not an independent cause of action, but rather a re-buttable presumption of negligence on the part of the defendant,

At this procedural point, we do not address Ms! Salcedo’s entitlement to such a presumption. We do, however, affirm the trial court’s dismissal with prejudice as to Count II of the complaint insofar as Count II sought to plead a separate cause of action against Wells Fargo for spoliation.

The more difficult question in the present case is how Ms. Salcedo can establish the value of any property in the safe deposit box when Wells Fargo negligently permitted the property to be removed and the box to be closed. Ms, Salcedo’s complaint alleges in Count I (negligence) that Wells Fargo’s breach of its duty after service of the writ of garnishment “significantly impaired Salcedo’s ability to prove that the contents were property of Maria Renzi and also what the specific contents of the box were and thus, the full value of any of Maria Rehzi’s property in the safe deposit box.”

In Count II (the legally insufficient attempted- spoliation- claim), Ms. Salcedo similarly alleged that the unjustified release of the .contents of the safe deposit box prejudiced Ms. Salcedo’s “effort to prove the. contents of the bqx and their value.” In the absence of unlikely admissions by Ms. Renzi, her daughter, and her son-in-law or a specific inventory of the contents of the box before Wells Fargo allowed entry and removal of the contents, proof of damages may be daunting.

That proof, however, is not for assessment at the current procedural point. Hochman v. Lazarus Homes Corp., 824 So.2d 205, 206 (Fla. 3d DCA 1975) (“A motion to dismiss is not a proper method of attacking a complaint that is insufficient only in that the elements of damage are improper or insufficiently alleged.”).

Ms. Salcedo might ultimately obtain discovery or prove that property in the daughter’s and son-in-law’s safe deposit box was Ms. Renzi’s property and in her safe deposit box at the time the writ of garnishment was served. But the amount of damages is not at issue at the motion to dismiss stage of the proceedings. Shands Teaching Hosp. v. Beech St. Corp., 899 So.2d 1222, 1229 (Fla. 1st DCA 2005). The complaint was not subject to dismissal with prejudice on grounds that no damages can be shown.

B. Second Issue: Ms. Renzi’s Discharge in Bankruptcy

Wells Fargo argues that the judgment debt of Ms. Renzi was discharged in her bankruptcy, thus eliminating any liability of Wells Fargo to Ms. Salcedo as judgment creditor. We disagree. With her discharge, Ms. Renzi obtained a release from further attempts by Ms. Salcedo to collect from Ms. Renzi on the judgment. The bankruptcy discharge had no effect On the right of Ms. Salcedo to collect from Wells Fargo for the bank’s negligent release of the safe deposit box contents before the bankruptcy petition was filed. The negligence claim by Ms. Salcedo against Wells Fargo is not property of the debtor subject to administration in Ms. Renzi’s bankruptcy estate. See 11 U.S.G. § 541(a)(1).

. Ms. Salcedo’s filing of an adversary complaint objecting to Ms. Renzi’s discharge, and Ms. Salcedo’s subsequent abandonment of that complaint, was not an adjudication of any claim by Ms. Salcedo against Wells Fargo. Had that adversary complaint been successful, it would have allowed Ms. Salcedo to continue collection actions against Ms. Renzi and her property, but would have had no effect on Ms. Salcedo’s claims against Wells Fargo. See 11 U.S.C. §§ 523, 524(e); Daniels v. Sonriso Dental Studio, LLC, 164 So.3d 778 (Fla. 2d DGA 2015).

Finally, as already noted, service of the writ of garnishment on Wells Fargo before the bankruptcy created a lien on the property in Ms. Renzi’s safe deposit box. In re Giles, 271 B.R. at 906. Ms. Renzi’s discharge in bankruptcy voided any personal liability she might have as judgment debt- or, but did not discharge or vacate the lien encumbering any property in the safe deposit box created when the writ was served. In re Branam, 476 B.R. 333, 337 (Bankr. S.D. Fla. 2012) (concluding that lien rights on property of the debtor survive the debtor’s discharge in a Chapter 7 case).

Ms. Salcedo’s claim against Wells Fargo is unaffected by Ms. Renzi’s discharge in bankruptcy and by Ms. Salcedo’s abandoned objection to the dischargeability of the judgment.

C. Third Issue: Alleged Res Judicata

Wells Fargo argues that Ms. Salce-do’s claim under the garnishment statute was required to be brought in the 2006 Case (in which Ms. Salcedo obtained her judgment against Ms. Renzi) rather than in the new, independent lawsuit against Wells Fargo (the 2014 Case). Wells Fargo maintains that the August 2012 “Final Garnishment Judgment” obtained by Ms. Salcedo “foreclosed any further action against the Bank based upon it.”

The Final Garnishment Judgment in the 2006 Case does not address the safe deposit box, however—it addresses only the bank accounts, as to which there was no controversy. At the time of the final judgment relating to those accounts, the trial court also entered the order providing for the inventory of the safe deposit box. Ms. Salcedo did not learn of Wells Fargo’s error in allowing removal of the contents of the safe deposit box until the inventory could be scheduled and conducted. The “Final Garnishment Judgment” was not a final adjudication with respect to the safe deposit box.

Wells Fargo cites no authority, and we have found none, suggesting that a claim against a negligent bank for a breach of its duty under section 77.06, Florida Statutes, can only be brought in the underlying action by the plaintiff/judgment creditor/garnishor against the defendant/judgment debtor (as opposed to a separate and later claim brought by the plaintiffijudgment creditor/garnishor against only the errant garnishee). The purpose of the judgment referred to by section 77.083, Florida Statutes (specifying that a final judgment shall be entered for the amount of the garnishee’s liability on the garnishee’s answer), is to allow transfer of the funds held by the garnishee for the judgment debtor to the garnishor. The garnishee’s liability for its negligence in allowing money or property to slip away after service of the writ may not be susceptible of liquidation without additional pleadings, discovery and trial.

And so it is in the present case. The 2006 Case between Ms. Salcedo and Ms. Renzi has concluded, but the 2014 Case by Ms. Salcedo against Wells Fargo is still at the pleadings stage. Upon remand, Ms. Salcedo will be entitled to prosecute her claim for negligence for damages for the value of any of Ms. Renzi’s property in the safe deposit box subject to the garnishment (and to seek the benefit of the Valcin evidentiary presumption), not to exceed the judgment debt owed by Ms. Renzi. Wells Fargo will be entitled to raise any affirmative defenses it may have, and discovery may shed light on Wells Fargo’s error and the property allowed to be removed from the safe deposit box. That claim, and those facts, have not previously been adjudicated so far as is revealed in the record before us. We express no opinion as to the ultimate merits or result of the 2014 Case on remand.

III. Conclusion

The complaint stated a legally sufficient cause of action for negligence against Wells Fargo in Count I. We reverse and remand the case for further proceedings on that claim. We affirm the dismissal with prejudice insofar as Ms. Salcedo sought to establish a separate cause of action against Wells Fargo for spoliation in Count II (as opposed to Ms. Salcedo’s claim to a rebut-table presumption under the Valcin and Martino cases, detailed elsewhere in this opinion).

Affirmed in part, reversed in part, and remanded for further proceedings.

      . We refer to the third amended complaint, the operative complaint for purposes of our analysis, as the "complaint.”

      . Maria Renzi de Rodriguez was also known as Maria Cruz Renzi. She is referred to in this opinion as “Ms. Renzi.”

      .The Villasmils are Ms. Renzi’s son-in-law and daughter. Ms. Renzi, her son-in-law, and her daughter each had the right to enter the safe deposit box until Wells Fargo was served with the writ of garnishment and placed the hold on the box and its contents.

      . Section 77.14, Florida Statutes (2012), "Disposition of property surrendered by garnishee,” provides that personal property of the judgment debtor in the possession or control of the garnishee is to be received by the sheriff and sold under the execution against the judgment debtor. If the Villasmils claimed an interest in the property held by Wells Fargo as garnishee, section 77.16 would have required them to provide an affidavit to that effect and the issue would have been tried to a jury or the court.

      . Ms. Salcedo has not appealed the dismissal of the claims against the branch manager.

      . Valcin and Martino address other remedies available in the case of evidence lost through intentional acts of the defendant (sanctions, for example). There is no allegation in the present case that Wells Fargo intentionally sought to release property to, or for the benefit of) the judgment debtor in contravention of the writ of garnishment, the garnishor's statutory lien, and Wells Fargo's statutory duty.

      . While the spoliation claim is insufficient as an independent cause of action, paragraphs 15 and 16 of the complaint do claim the benefit of the Valcin evidentiary presumption,


author: LAMBERT, J.

text:
    Chauncey DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2236
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 30, 2017
    Rehearing Denied August 1, 2017

      Aaron Baghdadi, of Baghdadi Law, P.A., Longwood, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAMBERT, J.

When he was seventeen years old, Chauncey Davis tendered a nolo contende-re plea to charges of attempted robbery with a deadly weapon, aggravated battery with a deadly weapon, aggravated battery on a law enforcement officer with a deadly weapon, and fleeing or attempting to elude a law enforcement officer at a high speed or with wanton disregard. The trial court accepted the plea, designated Davis as a youthful offender, and sentenced him to serve one year of community control to be followed by four years and ten months of probation. Not long thereafter, Davis substantively violated his community control by committing an armed carjacking, together with several technical violations. At that time, Davis was eighteen years old. The trial court revoked community control and probation and sentenced Davis to serve an aggregate forty-five years in prison. The primary question that we address in this appeal is whether Davis was entitled to be sentenced pursuant to the juvenile offender sentencing laws codified at sections 775.082, 921.1401, and 921.1402, Florida Statutes (2015), because he was a minor when he initially committed these crimes. As explained below, because we find Justice Pariente’s concurring opinion in Guzman v. State, 183 So.3d 1025 (Fla. 2016), to be persuasive, we hold that the trial court was correct in not applying the juvenile sentencing laws when it sentenced Davis, and therefore, we affirm his aggregate sentence.

In Guzman, the Florida Supreme Court reviewed the decision of the Fourth District Court of Appeal in Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013), in which the Fourth District affirmed Guzman’s sixty-year prison sentence but certified the following two questions of great public importance:

1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 826 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?
2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

110 So.3d at 483. Guzman committed multiple violent crimes when he was fourteen years old and, following a guilty plea to all charges, was sentenced to juvenile probation, to be followed by adult probation. Id. at 481. When he was eighteen years old, Guzman violated his probation by corhmit-ting the criminal offense of kidnapping. Id. The trial court revoked his probation, and Guzman was eventually sentenced to serve sixty years in prison. Id. Guzman appealed, claiming that his sentence amounted to a de facto life sentence in violation of Graham, which prohibited a juvenile non-homicide offender from receiving a sentence that precluded the offender from a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 481-83 & n.2 (quoting Graham, 560 U.S. at 75, 130 S.Ct. 2011).

The Florida Supreme Court discharged jurisdiction, explaining that in Henry v. State, 175 So.3d 675 (Fla. 2015), and Gridine v. State, 175 So.3d 672 (Fla. 2015), it had previously answered the first certified question in the affirmative. Guzman, 183 So.3d at 1026. The court declined to answer the second certified question. Id.

Pertinent to the instant appeal is Justice Pariente’s concurring opinion, in which she cogently explained that the dispositive reason that jurisdiction was discharged and Guzman was not entitled to be resentenced consistent with Graham and the Florida Supreme Court’s decisions interpreting Graham was because Guzman violated his probation after he had become an adult. Id. at 1027. Justice Pariente observed that otherwise, Guzman’s sixty-year sentence would have been unconstitutional under Graham because it did not provide him with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. Justice Pariente recognized that it may seem arbitrary that an individual such as the defendant in Graham, who violated probation when he was seventeen years old but whose sentence was thereafter reversed because it did not provide Graham with a meaningful opportunity to obtain early release based upon demonstrated maturity and rehabilitation, would be treated differently in sentencing than Guzman, who violated probation at age eighteen and was therefore not entitled to resentencing. Nevertheless, she asserted that “the line must be drawn somewhere” and that “[sjociety has consistently drawn it at age eighteen.” Id. Because Guzman was not entitled to relief and the Court had already answered the first certified question, Justice Pariente agreed that discharge of jurisdiction was appropriate. Id.

We agree with Justice Pariente and adopt her analysis. In this case, because Davis, like Guzman, was eighteen, years old when he violated community control, he was not entitled to be sentenced under Florida’s juvenile sentencing statutes, and the trial court was correct in that regard.

Davis raises one other issue, arguing that the trial court erred by not continuing his youthful offender status when it imposed the instant sentence. Davis is correct that “[o]nce a circuit court has imposed a youthful offender sentence, it must continue that status even upon resentenc-ing after a substantive violation of probation.” Long v. State, 99 So.3d 997, 997-98 (Fla. 5th DCA 2012) (citing Christian v. State, 84 So.3d 437, 442-43 (Fla. 5th DCA 2012); Mosley v. State, 77 So.3d 877, 877 (Fla. 2d DCA 2012)). The reason for maintaining a defendant’s youthful offender status is because “it affects the'defendant’s classification within the prison system and the programs and facilities to which the defendant can be assigned.” Id. at 998 (citing Blacker v. State, 49 So.3d 785, 787 n.2 (Fla. 4th DCA 2010); § 958.11, Fla. Stat. (2008)).

The trial court erred in not maintaining Davis’s youthful offender status when it sentenced him after violating community control. Nevertheless, Davis is presently not entitled to relief because he did not preserve this error for review by either objecting at sentencing or by timely filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). Cf. Goff v. State, 197 So.3d 98, 99 (Fla. 2d DCA 2016) (finding that defendant properly preserved for appellate review the trial court’s failure to continue his designation as a youthful offender after revoking his probation by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion).

Accordingly, we affirm the aggregate sentence in this case, but we do so without prejudice to Davis seeking postconviction relief related to his youthful offender status.

AFFIRMED.

TORPY, J., concurs.

BERGER, J., concurs in result only.

      . See chapter 958, Florida Statutes.

      , Guzman was first sentenced to life in prison, but that sentence was reversed by the Fourth District. Guzman v. State, 68 So.3d 295 (Fla. 4th DCA 2011).

      . Florida’s juvenile sentencing statutes were not discussed in Guzman because.they did not become effective until July 1, 2014, after the Fourth District had issued its decision. These statutes were specifically enacted to bring Florida’s juvenilé sentencing statutes into compliance with Graham and the later case of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Horsley v. State, 160 So.3d 393, 394 (Fla. 2015).