author: ROTHENBERG, J.

text:
    Hansis Antonio COLLADO a/k/a Luis Jorge Molina, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-928
    District Court of Appeal of Florida, Third District.
    Opinion filed December 28, 2016.

      Bradford Cohen Law, and Bradford M. Cohen (Fort Lauderdale), for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
   ROTHENBERG, J.

The defendant, Hansis Antonio Collado a/k/a/ Luis Jorge Molina (“the defendant”), appeals the trial court’s order denying his motion to suppress both the physical evidence obtained on the scene and the defendant’s post-Miranda statements made to law enforcement. Because the warrantless entry into the defendant’s house was supported by exigent circumstances, the defendant thereafter consented to a search of his house, and his statements were given after he freely and voluntarily waived his Miranda rights, we affirm.

FACTS

Law enforcement was dispatched to the defendant’s residence to investigate an alleged kidnapping based on a 911 call wherein the caller told the 911 operator that a woman was “being held hostage” in the defendant’s house. When Officer Jean-Francois responded to the defendant’s house, he heard the 911 caller telling another officer that the defendant grabbed her friend by the neck as she was exiting the defendant’s house, and thereafter, the defendant dragged her back into the house against her will. During the incident, the 911 caller could hear her friend screaming for her, and she had called 911 because she was afraid for her friend’s safety.

Because the defendant had two large pit bull dogs preventing access to the front door, the police called the defendant from a neighbor’s house. After placing approximately twenty unanswered phone calls, ten minutes had elapsed, and the officers continued to fear for the victim’s safety, they entered the property from the rear and knocked on the back door of the defendant’s house. Officer Jean-Francois testified that approximately two minutes after they knocked on the backdoor, the defendant, clad only in boxer shorts, opened the door and stepped outside with his hands up. At that point, Officer Jean-Francois heard a female screaming for help from inside the house.

The defendant was detained. Officer Jean-Francois and Detective Vielman then entered the house and headed in the direction where the screams were coming from. As they made their way to the victim, Officer Jean-Francois observed narcotics and ammunition in plain view.

The officers found the victim lying naked in a fetal position on the bathroom floor crying and saying, “Please help me, please help me.” A female officer was called into the house to assist the victim, and a protective sweep of the house was conducted. While the sexual battery detectives were conducting their investigation, and after the victim was transported to the hospital, the defendant was presented with and signed a consent to search form. The consent to search form specifically advised the defendant that he had the right to refuse to consent to a search and the right to demand that a search warrant be obtained prior to any search. Specifically, the consent to search form advised the defendant as follows:

Before any search is made, you must understand your rights
(1) You may refuse to consent to a search and may demand that a search warrant be obtained prior to any search of the premises or vehicle described below.
(2) If you consent to a search, anything of evidentiary value seized in the course of the search can be introduced into evidence in court.
I HAVE READ THE ABOVE STATEMENT OF MY RIGHTS AND I AM FULLY AWARE OF THE SAID RIGHTS
I HEREBY CONSENT TO A SEARCH WITHOUT WARRANT BY OFFICERS OF THE MIAMI-DADE POLICE DEPARTMENT OF THE FOLLOWING:
301 Bahman Ave.
Opa Locka, FI. 33054
I HEREBY AUTHORIZE THE SAID OFFICERS TO SEIZE ANY ARTICLE WHICH THEY MAY DEEM TO BE OF EVIDENTIARY VALUE THIS STATEMENT IS SIGNED OF MY OWN FREE WILL WITHOUT ANY THREATS OR PROMISES HAVING BEEN MADE TO ME.

(emphasis in the original).

Thereafter, a search was conducted and certain physical evidence, including a condom wrapper, the victim’s clothing, and the narcotics and ammunition observed by Officer Jean-Franeois when he entered the house, was collected, and the defendant was transported to the police station. Prior to any questioning of the defendant at the police station, the defendant was advised of and waived his Miranda rights, after which he provided a statement to the police.

The trial court found that, based on the totality of the circumstances, the officers’ entry onto the defendant’s property and into the defendant’s residence was due to the emergency situation that existed. In Seibert v. State, the Florida Supreme Court held that the “[pjolice may enter a residence without a warrant if an objectively reasonable basis exists for the officer to believe that there is an immediate need for police assistance for the protection of life or substantial property interests.” Seibert v. State, 923 So.2d 460, 468 (Fla. 2006) (citing Rolling v. State, 695 So.2d 278, 293-94 (Fla. 1997)). Whether an emergency actually existed is immaterial “so long as the officer reasonably believes it to exist because of objectively reasonable facts. The officer’s conclusion then may be based on a combination of the ‘objective’ nature of the circumstances and the officer’s ‘subjective’ perception of those circumstances.” State v. Boyd, 615 So.2d 786, 789 (Fla. 2d DCA 1993); see also Missouri v. McNeely, — U.S. -, 133 S.Ct. 1552, 1559, 185 L.Ed.2d 696 (2013) (holding that the court must consider the totality of the circumstance when determining “whether a law enforcement officer faced an emergency that justified acting without a warrant”).

The record supports that law enforcement reasonably believed that exigent circumstances existed. A 911 call was received describing an emergency situation at the defendant’s house — a woman “being held hostage.” When the police arrived at the defendant’s house and spoke to the 911 caller, she told the police that she saw the defendant drag her friend into the house by her neck and heard her friend calling for help. When the defendant did not answer his phone after approximately twenty calls, the officers continued to fear for the victim’s life. The officers then decided to by-pass the pit bulls at the front of the property, and knocked on the back door of the residence. The officers entered the house only after the defendant opened the door and they heard the victim screaming for help. These facts were more than sufficient to establish exigent circumstances warranting entry into the defendant’s house. The officers had been dispatched in reference to a kidnapping, and the 911 call that precipitated the dispatch was corroborated by the officers when they arrived at the defendant’s house. The 911 caller was at the scene, and she told the police that she had observed the defendant drag the victim into the house by the neck and heard the victim calling for help. Officer Jean-Francois was able to confirm that there was a woman in the house when he personally heard her screams. Under these circumstances, the officers’ belief that immediate action was necessary to protect life and to prevent serious bodily injury was reasonable. See Arango v. State, 411 So.2d 172, 174 (Fla. 1982) (holding that where safety is threatened and time is of the essence, the courts have recognized that “the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry”).

The subsequent search of the defendant’s house, the defendant’s arrest, and the statement provided by the defendant were equally lawful. The search was conducted after the defendant freely and voluntarily executed a consent to search form. “[T]he presence of a written consent tends to support the conclusion that the consent was given voluntarily ....” Luna-Martinez v. State, 984 So.2d 592, 600 (Fla. 2d DCA 2008). That is especially so where, as here, the consent to search form clearly and unequivocally advised the defendant that he had the right to refuse to consent to a search without a warrant and that anything seized during the search could be introduced in court as evidence.

Besides the consent to search form, the trial court considered several other factors in determining whether the defendant’s consent was freely and voluntarily given. Specifically, the trial court’s order reflects that it considered that (1) the defendant was thirty-five years old on the date of his arrest, (2) the defendant had a prior criminal history, (3) the defendant was on probation at the time the consent was given, and (4) the detective who obtained the consent testified that no threats or promises were made to the defendant and that the defendant had voluntarily signed the form consenting to the search of his house. Because the voluntariness of the consent is a question of fact to be determined by the trial court from the totality of the circumstances, see McDonnell v. State, 981 So.2d 585, 588 (Fla. 1st DCA 2008), declined to follow on other grounds by Rodriguez v. State, 187 So.3d 841 (Fla. 2015), and the record supports the trial court’s findings, we find no error with the trial court’s order concluding that the consent was freely given and voluntarily made. See United States v. Perry, 703 F.3d 906, 909 (6th Cir. 2013) (finding that the defendant’s consent was voluntary despite the fact that she was handcuffed and drunk, and the police were armed and never told her that she could decline to consent); United States v. Arciniega, 569 F.3d 394, 399 (8th Cir. 2009) (finding that consent to search a business and residence was voluntarily given where the defendant was handcuffed after cocaine was found in his vehicle).

The detention and subsequent arrest based on probable cause were also lawful. The initial detention of the defendant was based on at least a reasonable suspicion that a crime had been or was being committed based on the 911 caller’s statements and the officers’ own observations. The defendant’s subsequent arrest was supported by probable cause. The victim was found lying naked in a fetal position on the defendant’s bathroom floor crying for help. She told the officers that she had gotten high with the defendant and, although she had originally agreed to have sex with him, the defendant inserted something in her rectum against her will. Officer Jean-Francois had also seen drugs and ammunition in plain view when he entered the residence, which he later seized after the defendant consented to the search of his house. Probable cause therefore existed to arrest the defendant for sexual battery, possession of marijuana, and possession of ammunition by a convicted felon.

Lastly, the trial court’s finding that the statements,: which were given by the defendant after he was advised of his Miranda rights and executed a Miranda rights waiver form, were freely and voluntarily given is supported by the record. The test of voluntariness of a confession is whether, after a review and consideration of the totality of the circumstances, the confession was freely given or whether it was the product of coercive police conduct. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986).

The record reflects that the defendant made an exculpatory statement on the scene prior to having been advised of his rights. The State properly stipulated to suppression of that unwarned statement. The trial court however found, and the record supports the trial court’s finding, that this unwarned statement was voluntary, and that due to the significant lapse in time between the unwarned but voluntary statement given by the defendant on the scene and his later Mimndized statement at the police station, suppression of the later Mimndized statement was not required.

The United States Supreme Court in Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), held that evidence must not be suppressed simply because it would not have come to light but for the illegal activity of the police. The inquiry, instead, should be focused on whether the evidence the defendant seeks to suppress was obtained by the exploitation of the earlier illegality, and whether the circumstances reflect a sufficient purging of the primary taint. As stated in Wong Sun:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

(citing Maguire, Evidence of Guilt, 221 (1959)).

In State v. Frierson, 926 So.2d 1139, 1143 (Fla. 2006), the Florida Supreme Court concluded that under such circumstances, the court must consider: (1) the time that has elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. The record in the instant case reflects that the defendant’s unwarned statement was made prior to 10:48 a.m. and that his post-Miranda statement to Detective Utset at the police station was made later that evening after 8:57 p.m., thereby evidencing a ten-hour time lapse. There were also several intervening circumstances. The defendant had voluntarily consented to the search of his residence, which resulted in the seizure of incriminating evidence — evidence that not only incriminated the defendant with respect to the sexual battery of the victim, but also with respect to additional crimes. The defendant had also been transported to the police station and placed in an interview room where he was given time to think and consider his situation. Lastly, before anyone questioned the defendant at the police station, he was properly advised of his Miranda rights.

More importantly, there is no evidence of flagrant police misconduct associated with the earlier questioning or that the earlier statement in any way influenced the defendant to waive his rights and agree to speak to the detective at the police station. The record reflects that when the police spoke to the defendant at the scene, the defendant made no incriminating statements. He merely stated that he had picked up the victim and her friend the prior evening, brought them back to his place, but did not remember anything else. No follow-up questions were asked, and the defendant was not asked about and did not offer any statements about the narcotics and ammunition seized from his residence.

Based on the totality of the circumstances, we agree with the trial court that suppression of the voluntary post-Miranda statement was not mandated as “fruit of the poisonous tree.” See Lundberg v. State, 918 So.2d 444, 445 (Fla. 4th DCA 2006) (finding that although suppression of Lundberg’s statements made during his interrogation by the police were properly suppressed due to coercion by the police, his subsequent statements made to his girlfriend, which were surreptitiously recorded, were properly not suppressed because the statements to his girlfriend were sufficiently attenuated from the initial illegality).

CONCLUSION

We affirm the trial court’s order denying the defendant’s motion to suppress the physical evidence and the defendant’s post-Miranda statements. The entry into the defendant’s residence was based on law enforcement’s reasonable belief of the existence of exigent circumstances necessitating their warrantless entry. The evidence seized was based on the defendant’s voluntary execution of a consent to search form, which properly advised the defendant of his right to refuse such consent. The detention of the defendant was based on reasonable suspicion, which ripened into probable cause after the police entered the defendant’s house and after the defendant consented to the search of his residence. Lastly, suppressing the defendant’s post-Miranda statement was not required where the trial court found, and the record supports the finding, that the post-Miranda statement was sufficiently attenuated from the exculpatory prior statement given by the defendant ten hours earlier at the scene.

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The defendant was a convicted felon and on probation at the time these offenses were committed.


source: Caselaw Access Project

author: WALLIS, J.

license: Public Domain

text:
    Samuel KEARNEY, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2155
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 30, 2016

      Samuel Kearney, III, DeFuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   WALLIS, J.

Samuel Kearney, III, (“Appellant”) appeals the postconviction court’s denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. The State charged Appellant with second-degree murder with a firearm, and the jury returned a verdict of guilty for the lesser-included offense of aggravated battery with a firearm. The jury additionally found that Appellant actually possessed a firearm, discharged a firearm, and caused great bodily harm by discharging a firearm during his commission of the aggravated battery. The trial court reclassified Appellant’s sentence from a second-degree felony to a first-degree felony, pursuant to section 775.087, Florida Statutes (2004), and sentenced him to forty years’ incarceration with twenty-five years minimum mandatory. After our court affirmed Appellant’s direct appeal and subsequent postconviction motions, Appellant filed a rule 3.800(a) motion, arguing the trial court improperly reclassified his conviction because use of a firearm was an essential element of the offense.

We find that the trial court erred by reclassifying Appellant’s conviction. A trial court may not reclassify a conviction for aggravated battery with a firearm under these circumstances because the felony reclassification statute- specifically precludes reclassification where a defendant is convicted of a crime for which “the use of a firearm was an essential element of the offense.” See Moore v. State, 616 So.2d 168, 169 (Fla. 4th DCA 1993) (citing Lareau v. State, 573 So.2d 813 (Fla. 1991)). Here, the trial court instructed the jury on both types of aggravated battery: “[¡Intentionally or knowingly caus[ing] great bodily harm, permanent disability, or permanent disfigurement” and “[using] a deadly weapon.” § 784.045(1), Fla. Stat. (2004). The verdict form contained lesser-included offenses of “Aggravated Battery with a Firearm” and “Aggravated Battery.” Because the jury convicted Appellant of aggravated battery with a firearm, we find that Appellant’s use of a firearm was an element of the offense, thus prohibiting reclassification as a first-degree felony. See Jacobs v. State, 954 So.2d 1268, 1269 (Fla. 2d DCA 2007) (reversing reclassification where jury convicted defendant of aggravated battery with a firearm with special finding that defendant caused great bodily harm by discharging a firearm during the commission of his offense).

Regarding Appellant’s sentence, section 775.082(3)(c), Florida Statutes (2004), authorizes a maximum sentence of fifteen years’ incarceration for a second-degree felony. However, section 775.087(2)(a)3., Florida Statutes (2004), imposes a twenty-five-year minimum-mandatory term for a defendant who “discharged a ‘firearm’ or ‘destructive device’ as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person.” When the minimum-mandatory term “exceedfe] the maximum sentences authorized by s. 775.082 ... the mandatory minimum sentence must be imposed.” § 775.087(2)(c), Fla. Stat. Therefore, we reverse and remand for the trial court to correct Appellant’s conviction for aggravated battery with a firearm to reflect a second-degree felony conviction and to re-sentence Appellant to the twenty-five-year minimum-mandatory term of incarceration prescribed by section 775.087(2)(a)3.

REVERSED and REMANDED with Instructions.

LAWSON, C.J., and TORPY, J., concur.


author: Levine, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. James M. HARVEY, Appellee.
    No. 4D15-4724
    District Court of Appeal of Florida, Fourth District.
    January 4, 2017

      B. Richard Young, Courtney F. Smith, Adam A. Duke and Lindsay M. Mark of Young, Bill, Boles, Palmer & Duke, P.A., Pensacola, for appellant.

      Kimberly L. Boldt, Jeffrey D. Mueller, and Mario R. Giommoni of Boldt Law Firm, P.A., Boca Raton, and Fred Cunningham and Greg Yaffa of Domnick Cunningham & Whalen, Palm Beach Gardens, for appellee.
   Levine, J.

The issue presented on appeal is whether the trial court erred in denying the insurer’s motion for directed verdict on the insured’s bad faith claim. We find that the evidence was insufficient as a matter of law to show the insurer acted in bad faith in failing to settle the claim of the decedent’s estate against the insured. The evidence, taken in a light most favorable to the insured as the nonmoving party, showed that the insurer unconditionally tendered the estate the policy limits nine days after the accident, the insurer notified the insured that the estate wanted a statement seventeen days after the request, and the insured subsequently failed to provide a statement to the estate despite having the opportunity to do so before suit was filed. Moreover, even if the insurer’s conduct were deficient, the insurer’s actions did not cause the excess judgment rendered against the insured. As such, we find that the trial court erred in denying the insurer’s motion for directed verdict and reverse.

I. Background

On August 8, 2006, the insured, James Harvey, got into a car accident with John Potts, which resulted in Potts’ death. The insured’s vehicle was registered in both the insured’s name and his business’s name. The accident was reported to the insured’s insurer, GEICO, with which the insured had a $100,000 liability policy. The claim was then assigned to Fran Korkus, a claims adjuster.

Three days later, on August 11, GEICO advised its insured in writing that the claim by the decedent’s estate could exceed the insured’s policy limits and that the insured had the right to hire his own attorney. The insured subsequently retained his own attorney to protect his uninsured excess exposure.

On August 14, an employee of the attorney retained by the decedent’s estate contacted Korkus and advised of their representation of the estate. According to the employee, she asked Korkus to arrange for a statement from the insured regarding the insured’s personal and business assets, whether the insured was acting within the course and scope of his business at the time of the accident, and other potential insurance coverage for the claim. While the employee claimed that Korkus refused to make the insured available for a statement, Korkus said that if the attorney for the estate had asked for a statement she would not have refused the request. At no time did the estate’s attorney provide a deadline for obtaining this statement, nor was Korkus told that the insured’s statement was a prerequisite to settling the insured’s claim.

Nine days after the accident, on August 17, GEICO sent the estate a release along with a check for the $100,000 policy limits even though the estate never demanded the policy limits.

On August 23, the insured met with his personal counsel. The insured brought documentation to the meeting showing that the insured’s business, the only asset that would be available to the estate, had only $85,000 in its accounts.

On August 24, the estate’s attorney sent a letter to Korkus in response to the $100,000 check and release. The letter indicated that Korkus had declined the estate’s request to make the insured available for a statement and renewed its request for the insured’s financial information. Korkus received this letter on August 31, faxed it to the insured, and verbally discussed its contents with him the same day. According to this insured, this was the first time he learned the estate wanted a statement.

Also on August 31, pursuant to her supervisor’s instructions, Korkus contacted the estate’s attorney to find out what kind of statement he wanted. The attorney responded that he wanted to determine what other assets or coverage the insured had available to him. The estate’s attorney sent a letter to Korkus memorializing the conversation, and Korkus immediately forwarded that letter to the insured advising him of the estate’s request. Additionally, Korkus sent the insured a sample affidavit that had blanks where the insured could input his available assets and coverage to provide this information to the estate. Notably, in renewing its request for a statement from the insured, the estate never provided any deadline or other timeframe within which this statement was to be provided.

The next day, the insured contacted Korkus and informed her that his attorney was not available until September 5, and asked Korkus to let the estate’s attorney know that the insured was working on preparing the financial statement. Although Korkus’s supervisor instructed Korkus to relay the insured’s message to the estate, Korkus did not do so. However, despite the insured’s attorney return -to availability on September 5, and despite .the insured knowing the estate wanted a statement, neither the insured nor his attorney took any further action to provide the estate with a statement.

On September 13, the estate filed a wrongful death lawsuit against the insured and returned GEICO’s $100,000 check. Ultimately, the estate received an $8.47 million judgment against the insured following a jury trial in the wrongful death action.

After the judgment was entered against him, the insured brought a bad faith claim against GEICO. During the course of the bad faith trial, the insured admitted he had known about the ■ estate’s request for a statement at least thirteen days before the estate filed suit. The insured also admitted that, despite GEICO informing him of the estate’s request for a statement and having collected the financial documentation necessary to provide a statement, he failed to provide this statement to the estate before the lawsuit was filed on September 13. However, he claimed that had he known about the estate’s request before August 31, he would have provided the statement. Nothing in the record shows why the insured could not have given his statement between the time his personal attorney became available and the date the suit was filed.

The estate’s attorney testified at trial that had he known the insured planned on giving a statement, he would have recommended delaying the filing of the wrongful death suit even though he never advised either the insured, the insured’s attorney, or GEICO that without the statement the filing of the lawsuit was imminent. The estate’s attorney also testified that he would have recommended not pursuing the wrongful death lawsuit if he had known that only $85,000 in assets were available. Further, the estate’s personal representative stated she would have followed her attorney’s advice and would have declined to file the lawsuit. Finally, the insured introduced evidence in support of its claim of bad faith by GEICO that Korkus had received some deficient performance reviews, and at times had difficulty managing her workload.

At the close of the insured’s case, GEI-CO moved for a directed verdict, and the trial court denied the motion. After the jury entered a verdict in the insured’s favor, GEICO moved for a judgment notwithstanding the verdict. The trial court denied the motion, and GEICO appealed.

II. Analysis

GEICO contends that the insured offered insufficient evidence at trial to support his bad faith claim. We review the lower court’s denial of a motion for a directed verdict de novo. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). “[W]hen reviewing a trial court’s denial of a motion for directed verdict, an appellate court must view the evidence and all inferences in a light most favorable to the non-mov-ant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant.” Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004).

We begin with a discussion of bad faith insurance claims under Florida law. The Florida Supreme Court stated in Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783, 785 (Fla. 1980):

An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured.

(citation omitted). Thus, an insurer is obligated to (1) “advise the insured of settlement opportunities”; (2) “advise as to the probable outcome of the litigation”; (3) “warn of the possibility of an excess judgment”; (4) “advise the insured of any steps he might take to avoid same”; (5) “investigate the facts”; (6) “give fair consideration to a settlement offer that is not unreasonable under the facts”; and (7) “settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.” Id.

In evaluating whether an insurer has acted in bad faith, the jury must consider the “totality of the circumstances.” Berges v. Infinity Ins. Co., 896 So.2d 665, 680 (Fla. 2004). Under the totality of the circumstances, the evidence must support the allegation that the insurer acted in bad faith — not simply that the insurer was negligent in some regard in handling the insured’s claim. See DeLaune v. Liberty Mut. Ins. Co., 314 So.2d 601, 602-03 (Fla. 4th DCA 1975) (citing Auto Mut. Indem. Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938)); see also Novoa v. GEICO Indem. Co., 542 Fed.Appx. 794, 796 (11th Cir. 2013) (“To fulfill the duty of good faith, an insurer does not have to act perfectly, prudently, or even reasonably.”). As such, while evidence of an insurer’s negligence in handling a claim against its insured may be admissible to support a bad faith claim, negligence alone is insufficient to sustain a bad faith award. DeLaune, 314 So.2d at 603. An insurer’s imperfect handling of a claim does not, by itself, equate to bad faith; the essence of a bad faith claim is that the insurer put its own interests before that of the insured. See Macola v. Gov’t Emps. Ins. Co., 953 So.2d 451, 455 (Fla. 2006) (citing Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1125 (Fla. 2005)); see also Shaw, 184 So. at 859 (“[T]he insurer cannot escape liability by acting upon what it considers to be for its own interest alone, but it must also appear that it acted in good faith and dealt fairly with the insured.”) (quoting Am. Mut. Liab. Ins. Co. v. Cooper, 61 F.2d 446, 448 (5th Cir. 1932)).

Applying the seven obligations for insurers as set forth in Boston Old Colony to this case:

(1) GEICO was obligated to “advise the insured of settlement opportunities.” Although GEICO did not immediately inform the insured that the estate wanted a statement, the evidence showed that GEICO notified the insured on August 31 that the estate wanted the insured’s statement. Significantly, the estate did not inform GEI-CO that a full settlement of its claim against the insured was contingent upon providing a statement. Thus, GEICO fulfilled this obligation.

(2) GEICO was required to “advise as to the probable outcome of the litigation,” and (3) “warn of the possibility of an excess judgment.” Here, the record reflects that GEICO promptly warned the insured as to the possibility of an excess judgment. Thus, GEICO satisfied these obligations as well.

(4) GEICO was also obligated to “advise the insured of any steps he might take to avoid” an excess judgment. The record also shows that GEICO did this too, and recommended that the insured retain his own attorney, which he did, and, as stated above, informed the insured that the estate wanted a statement.

(5) GEICO was further obligated to “investigate the facts.” Nothing in the record indicates GEICO was deficient in this regard.

(6) GEICO could not have given “fair consideration to a settlement offer” because the evidence was undisputed that the estate never made a settlement offer.

(7)Finally, GEICO was required to “settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.” Here, GEICO attempted to settle with the estate nine days after the accident by tendering, without limitation or even a demand, the full policy limits to the estate’s attorney. Thus, the evidence showed that GEICO also fulfilled this final obligation.

Consequently, GEICO fulfilled every obligation that an insurer owes the insured as announced in Boston Old Colony. Additionally, although not dispositive to our analysis, we also note that there was no competent, substantial evidence that GEI-CO, having tendered the full policy limits nine days after the accident, was “acting upon what it consider[ed] to be for its own interest alone,” Shaw, 184 So. at 859, nor did it put its own interests before that of the insured. See Macóla, 953 So.2d at 455 (citing Ruiz, 899 So.2d at 1125). As such, we find no factual basis to sustain the bad faith judgment.

The Eleventh Circuit’s opinion in Novoa supports this conclusion. In Novoa, the insurer offered the claimant the policy limits within nine days of the accident, which the claimant refused. For over two months, the insurer attempted to settle the case, but was unable to do so. After an excess judgment was entered against the insured, the insured sought to bring a bad faith claim against the insurer. Although the insured claimed that the insurer could have handled its claim better, the Eleventh Circuit court concluded that the evidence “demonstrate^] that [the insurer] could have improved its claims process, not that [the insurer] acted in bad faith.” 542 Fed. Appx. at 796. Moreover, even assuming the insurer’s handling of the claim was deficient, the mishandling would have amounted only to mere negligence and “[w]hile evidence of carelessness may be relevant to proving bad faith, Florida has expressly stated that the ‘standard for determining liability in an excess judgment case is bad faith rather than negligence.’ ” Id. (quoting Campbell v. Gov’t Emps, Ins. Co., 306 So.2d 525, 530 (Fla. 1974)). The court further noted that the insurer offered the policy limits within nine days, and the court found “it hard to imagine how [the insurer] acted in bad faith when it offered to pay everything it possibly could under the policy.” Id. See also Barnard v. Geico Gen. Ins. Co., 448 Fed.Appx. 940, 943-44 (11th Cir. 2011) (explaining that a negligent oversight does not rise to the level of bad faith).

Certainly, like the insurer in Novoa, GEICO could have acted more efficiently in handling the insured’s claim. GEICO delayed in informing the insured that the estate wanted a statement, and did not notify the estate that the insured was available to give a statement after September 5. But these facts merely show that GEICO could have perhaps “improved its claims process,” not that it acted in bad faith. Novoa, 542 Fed.Appx. at 796. Moreover, even if GEICO’s actions were negligent, negligence alone is insufficient to prove bad faith. Shaw, 184 So. at 859; DeLaune, 314 So.2d at 603.

Furthermore, the Florida Supreme Court has instructed that not only must there be actions demonstrating bad faith on the part of the insurer, but the insurer’s bad faith must also have caused the excess judgment. Perera v. U.S. Fidelity & Guar. Co., 35 So.3d 893, 903-04 (Fla. 2010). The record in this case shows that GEICO did not fail to meet any deadlines or other requirements established by the estate, as a requirement for settling the claim and avoiding the filing of a lawsuit against its insured. Also, where the insured’s own actions or inactions result, at least in part, in an excess judgment, the insurer cannot be liable for bad faith. See Barnard, 448 Fed.Appx. at 944. See also Novoa, 542 Fed.Appx. at 796-97 (finding insufficient evidence to show the insurer’s conduct caused the excess judgment when the claimant repeatedly declined every opportunity to settle, even where the claimant’s self-serving testimony was that she would have settled for 1,000 times less than the actual value of the claim).

Even assuming that GEICO handled the insured’s claim improperly, the insured failed to establish that GEICO’s conduct caused the excess judgment against the insured. Although, after the fact, the insured claimed he would have provided a statement had GEICO acted differently, the insured’s own inaction belied this after-the-fact assertion. Before the estate ever filed suit, the insured knew the estate wanted a statement, knew what the estate wanted in that statement, and had the materials to produce a statement. Further, the insured never provided a statement to the estate despite having the assistance of legal counsel for several days before suit was eventually filed. Therefore, the insured failed to show that he would have provided the requested statement but for GEICO’s purported “bad faith.”

III. Conclusion

In summary, we conclude that the trial court should have directed a verdict in GEICO’s favor, GEICO tendered the policy limits, unconditionally, nine days after the accident, and it informed the insured of the estate’s request for a statement. Although GEICO’s claims process was not without fault and could be improved, GEI-CO’s handling of the claim did not amount to bad faith as a matter of law. Additionally, even if GEICO’s handling of the claim were deficient, GEICO’s conduct was not proven to cause the excess judgment against the insured.

For these reasons we reverse with instructions for the trial court to enter a judgment in favor of GEICO. Because we reverse on this issue, we find it unnecessary to address the other issues raised on appeal.

Reversed and remanded.

Gerber and Klingensmith, JJ., concur.

      . The insured also sued his attorney for malpractice, but settled with him prior to trial.


author: ROTHENBERG, J. SALTER, J.

text:
    HEARTWOOD 2, LLC, Appellant, v. Shay DORI, et al., Appellees.
    No. 3D15-2576
    District Court of Appeal of Florida, Third District.
    Opinion filed January 11, 2017.

      Greenberg Traurig, P.A., and Kimberly S. Mello (Tampa), Jonathan S. Tannen (Tampa), and Michele L. Stocker (Ft. Lauderdale), for appellant.
    Neustein Law Group, P.A., and Nicole R. Moskowitz, for appellee Shay Dori.
    Before SUAREZ, C.J., and ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

Heartwood 2, LLC (“Heartwood”) appeals from a final judgment involuntarily dismissing its claim for foreclosure without prejudice to allow Heartwood to assert its dismissed claim in a new action; dismissing without prejudice Heartwood’s claim for reformation of a special warranty deed (“the deed”); and declining to retain jurisdiction over the reformation and foreclosure issues. Heartwood also appeals from an order denying its motion for rehearing or reconsideration. For the reasons that follow, we reverse and remand for entry of a final judgment of foreclosure consistent with this opinion.

FACTS

On July 15, 2005, 1200 West Realty, LLC (“the grantor”), a Delaware limited liability company, executed the deed in favor of Shay Dori (“Mr. Dori”), which contains the following legal description and statement:

Unit 918, Mirador 1200, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in Official Records Book, Page , of the Public Records of Miami-Dade County.
This Commitment will be endorsed at the time of the recordation of the Declaration of Condominium to complete the legal description.

(emphasis added). As is obvious, the specific recording information for the declaration of condominium was not included. In addition to this legal description and statement, the deed included Mr. Don’s address — “1200 West Ave. # 918, Miami Beach, FL 33139.”

On the same day that the deed was executed, Mr. Dori executed a purchase money mortgage and a promissory note in favor of Meridian Residential Capital, LLC (“Meridian”). Unlike the deed, the legal description set forth in the mortgage included the recording information for the declaration of condominium — Book 23543, Page 3930. Further, both the promissory note and the mortgage reflect that the property address is “1200 West Avenue # 918, Miami Beach, Florida 33139,” the same address that appears on the deed.

In May 2012, Wells Fargo Bank, N.A. (“Wells Fargo”) filed a two-count complaint against Mr. Dori. In Count I, Wells Fargo sought to foreclose the mortgage executed by Mr. Dori in favor of Meridian, alleging in part that Wells Fargo was the current owner and holder of the note and mortgage, Mr. Dori owns the mortgaged property, and Mr. Dori defaulted under the terms of the promissory note and mortgage by failing to make the July 2011 payment and all subsequent payments. In Count II, Wells Fargo sought to reform the deed, alleging that the legal description omitted the specific recording information for the declaration of condominium, and that the omission was a “scrivener’s error” that “resulted from a mutual mistake.”

After the mortgage and note were allegedly assigned from Wells Fargo to Heartwood, Heartwood was substituted as the plaintiff. Thereafter, Mr. Dori filed an answer admitting that he owned the subject property, and he raised several affirmative defenses, such as lack of standing, but did not raise any affirmative defense relating to the alleged legal description in the deed.

On March 11, 2015, Heartwood filed an unopposed motion for leave to amend the complaint, asserting that the complaint failed to include a necessary party — the grantor of the deed. The following week, evert though Mr. Dori did not oppose Heartwood’s motion for leave to amend, the trial court denied Heartwood’s motion because the case had been set for trial for the week of April 6, 2015, and the trial court’s own concern that the late amendment would prejudice Mr. Dori.

On April 2, 2015, the trial court granted Mr. Dori’s verified unopposed motion to continue the trial. On the following day, April 3, 2015, Heartwood filed a renewed motion for leave to amend its complaint, and in its renewed motion, Heartwood reminded the trial court that its previous motion for leave to amend was denied because the trial had already been scheduled. Mr. Dori did not file an objection to the renewed motion. On May 6, 2015, over one month after Heartwood filed its renewed motion to amend its complaint, with no objection having been filed by Mr. Dori, and while Heartwood’s renewed motion to amend the complaint was pending, the trial court reset the non-jury trial for a two-week period commencing on June 15, 2015. And then, only a few days after resetting the trial, and even though Heartwood’s renewed motion to amend had been pending for over a month, the trial court denied Heartwood’s renewed motion because the case had been set for the trial period commencing on June 15, 2015.

At the non-jury trial, Mr. Dori’s counsel sought for the first time dismissal of the reformation count based on Heartwood’s failure to join an indispensable party, the grantor, and because Heartwood had been precluded from amending its complaint to reform the deed, Mr. Dori’s counsel argued that the foreclosure count should be dismissed because the deed failed to sufficiently identify the property due to the omission of the specific recording information regarding the declaration of condominium. In response, Heartwood’s counsel argued that the omission of the recording information for the declaration of condominium in the deed was a scrivener’s error, and that the grantor was not an indispensable party because the correction of the deed would affect neither the grantor’s nor the grantee’s (Mr. Dori) rights. He also argued that the omission in the deed did not render the title transferred to Mr. Dori void because, based on the information provided in the deed, the property that was conveyed was ascertainable.

At trial, the trial court specifically found that the omission in the deed was “clearly a scrivener’s error,” and thereafter, when the trial court entered its final judgment, it found that Heartwood established standing, the pleadings sufficiently stated a claim and prayer for monetary relief, and Heartwood was entitled to the enforcement of the promissory note. As to the foreclosure claim and the reformation claim, the trial court ruled as follows:

3. [Heartwood’s] claim for foreclosure of the mortgage is involuntarily dismissed without prejudice to filing a new action. The Court finds the Mortgage contains an insufficient legal description, as the deed by which Defendant Shay Dori took title, and to which legal interest to the mortgage purports to attach, fails to include a sufficient legal description. It simply [sic] includes the unit number, the name of the condominium, no book and page, and a street address. There is no legal description of the condominium property included in the deed. [Heartwood] sought to reform the deed but failed to join the grantor, 1200 West Realty, LLC, which is an indispensable party. As the grantor was not served in this case, the deed cannot be reformed and thereby preventing [Heartwood] from seeking enforcement of the Mortgage at his time.
4. As to Count II of [Heartwood’s] Complaint for Reformation of Deed, the Count is dismissed without prejudice, due to [Heartwood’s] failure to join the indispensable party 1200 West Realty LLC, the grantor of the deed by which the Borrower Shay Dori purportedly gained title.

The trial court declined to retain jurisdiction over the deed and foreclosure issues, and although Heartwood’s pleadings did not seek monetary damages, the trial court entered a monetary judgment in favor of Heartwood and against Mr. Dori.

Following the entry of the final judgment, Heartwood filed a motion for rehearing or reconsideration, which was later denied by the trial court. Heartwood’s appeal followed.

Heartwood contends that the trial court erred by dismissing its foreclosure claim. We agree.

ANALYSIS

The dispositive issue on appeal is whether the mortgage in this case, which contained no defects whatsoever, created a valid enforceable lien that entitled Heartwood to a foreclosure judgment based on the evidence presented at trial. Mr. Dori’s position at trial was that Heartwood could not foreclose on the property because the deed conveying the property to Mr. Dori failed to sufficiently identify the property because the deed omitted the recording information regarding the declaration of condominium.

A. The trial court erred by dismissing the foreclosure claim based on an unpled affirmative defense

We begin our analysis by specifically noting that Mr. Dori never pled the deed’s purported deficiency as an affirmative defense. It is well-settled law in Florida that affirmative defenses not raised are waived. See Fla. R. Civ. P. 1.140(b) (providing that “[ejvery defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading ... [and] [a]ny ground not stated shall be deemed to be waived ....”); S. Mgmt. & Dev., L.P. v. Gardner, 992 So.2d 919, 920 (Fla. 4th DCA 2008) (holding that affirmative defenses are waived if not pled); Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So.2d 992, 993 (Fla. 4th DCA 2003) (reversing the trial court’s involuntary dismissal that was based on an unpled affirmative defense); Sonnenblick-Goldman of Miami Corp. v. Feldman, 266 So.2d 48, 50 (Fla. 3d DCA 1972) (“When an affirmative defense ... is not raised by answer, it is waived.”). It also bears noting that Mr. Dori did not even attempt to respond to the arguments raised by Heartwood in its initial brief on this ground for reversal or defend the trial court’s dismissal of Heartwood’s mortgage foreclosure claim based on its reliance on Mr. Dori’s unpled ground for dismissal of the foreclosure claim.

Because dismissal of Heartwood’s' foreclosure claim was based on the unpled, and thus waived, affirmative defense regarding an alleged deficiency in the deed conveying the subject property to Mr. Dori, the trial court erred by considering and relying on this defense in granting Mr. Dori’s motion to dismiss the foreclosure count of Heartwood’s complaint. Accordingly, reversal and entry of a foreclosure judgment in Heartwood’s favor is warranted on this basis alone.

B. Reformation of the deed was not required to foreclose the subject mortgage

Even if Mr. Dori had properly raised the alleged deficiency in the deed conveying the property to Mr. Dori, which he clearly did not do, reversal of the trial court’s dismissal of Heartwood’s foreclosure claim would still have been warranted. That is because reformation of the deed was not necessary to foreclose the mortgage in this case, In fact, the reformation count was wholly irrelevant to Heartwood’s foreclosure count.

Under Florida law, the lien of a mortgage encompasses the property described in the mortgage. See § 697.02, Fla. Stat. (2005). Thus, for a mortgage to create a valid lien, the mortgage must contain a sufficient description of the property to enable the parties to ascertain and locate the property affected by the lien. Sickler v. Melbourne State Bank, 118 Fla. 468, 159 So. 678, 679 (1935).

There is no dispute that the mortgage in this case provided a complete legal description of the property. The description provided is as follows:

Unit 918, Mirador 1200, a Condominium, together with an undivided interest in the common elements, according to the Declaration of Condominium thereof, as recorded in the Official Records Book 23543, Page 3930, of the Public Records of Miami-Dade County, Florida.

In fact, Mr. Dori has never asserted that the mortgage was deficient or that the mortgage does not encumber the property. Thus, the mortgage constitutes a valid lien on the property under Florida law. See § 697.02 (providing that “[a] mortgage shall be held to be a specific lien on the property therein described”).

Because the mortgage constitutes a valid lien on the property; there is no dispute that Mr. Dori received the loan funds and he defaulted; and Mr. Dori failed to allege a valid defense to foreclosure, Heartwood was entitled to a final judgment of foreclosure. The trial court therefore erred by dismissing Heartwood’s foreclosure claim and by entering a monetary judgment in favor of Heartwood and against Mr. Dori.

C. Other errors

Although we conclude that reformation of the deed was not required to foreclose the mortgage in this case, reverse the trial court’s dismissal of Heartwood’s foreclosure claim, and remand for the entry of a final judgment foreclosing the mortgage, we also find that the trial court abused its discretion by denying Heartwood’s renewed motion to amend its complaint to seek reformation. Although the trial court’s first denial of Heartwood’s unopposed motion to amend, filed three weeks before the scheduled trial date, may have withstood a challenge on appeal based on the trial court’s discretion, the denial of Heartwood’s renewed motion, filed one day after Mr. Dori obtained a continuance of the trial and without objection by Mr. Dori, was an abuse of discretion because the renewed motion to amend was filed: (1) immediately after the trial was continued; (2) prior to the setting of a new trial date; and (3) two and one-half months (ten weeks) prior to the new trial date. Furthermore, the renewed motion had been pending for several weeks prior to the trial court setting a new trial date, and the only excuse given by the trial court for denying the renewed motion was that a trial date had been scheduled.

Lastly, as Heartwood candidly admits in its initial brief: “[T]he trial court improperly sua sponte converted Heartwood’s foreclosure claim into a claim for a monetary judgment under the Note, even though no such claim had been pled.” We agree, and therefore, on remand, the trial court is instructed to enter a final judgment of foreclosure that does not include a monetary judgment against Mr. Dori.

CONCLUSION

Although we have identified several errors, we reverse the final judgment involuntarily dismissing Heartwood’s foreclosure claim and remand for entry of a final judgment foreclosing the mortgage based on our conclusion that the mortgage is valid because it contains sufficient information to identify the specific property that was conveyed to Mr. Dori. Additionally, based upon Heartwood’s proper confession that the trial court improperly entered a monetary judgment against Mr. Dori because the foreclosure count did not seek monetary damages, we instruct the trial court not to include a monetary judgment against Mr. Dori in the final judgment of foreclosure entered on remand. On remand, Heartwood may amend Count II, the reformation claim, or abandon this claim based on this Court’s ruling that it is entitled to a final judgment of foreclosure on the property without reformation of the deed.

Reversed and remanded.

SUAREZ, C.J., concurs.

SALTER, J.

(concurring in part, dissenting in part).

I concur in the majority opinion to the extent that it reverses and remands for the entry of a final judgment of foreclosure in place of the final judgment on the promissory note indebtedness. The mortgage count should not have been dismissed, as the mortgage contained a sufficient legal description, the borrower’s default and the amount of indebtedness were proven, and there was no impediment to the entry of a final judgment of foreclosure. Any alleged defect in the deed into the mortgagor (ap-pellee, Shay Dori), should remain for a separate action (which would, if pursued, have to include the grantor as the other party to the facially-defective instrument) or a curative deed to be obtained from the grantor by consent,

I must respectfully dissent, however, from part C. of the majority opinion insofar as it finds an abuse of discretion in the trial court’s denial of the plaintiffs motion to amend the reformation count (Count II of the complaint) to add the grantor as an indispensable party.

The mortgagee/plaintiff, appellant here, filed a verified complaint in May 2012. Count I sought to foreclose the mortgage, while Count II sought reformation of the deed into the borrower, Shay Dori. Compounding the defect in the deed, counsel who prepared the complaint failed to join an indispensable party to the reformation count — the grantor. See Antonelli v. Smith, 556 So.2d 1132, 1134 (Fla. 3d DCA 1989). The action then languished for two years. Though the case was noticed for trial in 2014 and again in 2015, the mortgagee’s counsel apparently did not realize until March 2015 that the complaint needed to be amended to add the grantor on the deed-sought-to-be-reformed as a defendant for purposes of the reformation count.

In my view, the trial court did not abuse its discretion in denying such an amendment, even if unopposed. The case was three years old and stale, but was finally scheduled to be tried the month after the hearing on the motion to amend. The possible consequences of allowing the amendment were the problem: the amendment would have to be filed or deemed filed; the new defendant would have to be served; the new defendant and existing defendant would have 20 days from service within which to file a responsive pleading; the responsive pleading might be a motion necessitating a hearing, ruling, and additional time within which to answer; and the case might not be “at issue” under Florida Rule of Civil Procedure 1.440(a), and thus ready to be re-set for non-jury trial, for several more months.

The abuse of discretion standard of review applicable to a motion to amend generally defers to the right of a trial court to control the management and trial of a case. Though amendment is ordinarily to be “given freely when justice so requires,” Florida Rule of Civil Procedure 1.190(a), that liberality is diminished as a case nears trial, and when a plaintiff has failed to act with due diligence. San Martin v. Dadeland Dodge, Inc., 508 So.2d 497, 498 (Fla. 3d DCA 1987). Our review under the abuse of discretion standard will uphold a discretionary ruling unless it is “arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” Lugo v. State, 2 So.3d 1, 19 (Fla. 2008) (quoting Parker v. State, 904 So.2d 370, 379 (Fla. 2005)).

In the present case, I cannot agree that the trial court abused its discretion in denying the plaintiffs dilatory motion to add a party. The errors in the present case were essentially errors by counsel, not by the trial court. The tsunami of residential foreclosures in South Florida in the aftermath of the 2008 real estate recession has been marked in many cases by assembly-line pleadings, preparation of complaints and affidavits by non-attorneys, and the neglect of cases by counsel. The trial courts have shown commendable diligence in moving such cases, particularly stale cases, to trial and final judgment.

The trial court’s denial of the plaintiffs proposed amendment to add a party to the reformation count, and our decision here, cause no prejudice to the parties. Heartwood 2 may ascertain from its title examination and title insurer whether it wishes to re-file the reformation count, to file a quiet title action against the grantor, or to track down the grantor/developer of the condominium to obtain a curative, recordable instrument. That is not our concern, nor was it required to be a concern of the trial court, given the errors and omissions by the person(s) who prepared and recorded the defective deed and by prior counsel for the lender in the foreclosure case.

For these reasons, I join the majority opinion to the extent that it reverses and remands the final judgment to vacate its characterization as a lien for the promissory note indebtedness, and to direct the entry of a final judgment of foreclosure using the property description in the mortgage. I respectfully dissent, however, from the majority opinion insofar as it finds an abuse of discretion in the trial court’s denial of the appellant’s motion to amend the reformation count to add a party the appellant should have (and could have) included years before.

      . The declaration of condominium for Mira-dor 1200 was recorded on July 6, 2005, approximately nine days prior to the execution of the deed from the grantor to Mr. Dori, the grantee. Based on the deed’s reference to ‘‘[t]his Commitment,” it appears that the preparer of the deed merely copied the legal description from the title commitment, which most likely included the statement that “[t]his Commitment will be endorsed at the time of the recordation of the Declaration of Condominium to complete the legal description.” It is obvious that the omission in the deed of the specific recording information for the declaration of condominium and the inclusion of the language regarding "[t]his Commitment” was nothing more than a careless error. Rather than including the language regarding “[t]his Commitment,” the preparer should have included the specific recording information for the declaration of condominium. This scrivener’s error, however, did not appear in the mortgage, which most likely was prepared by Meridian, not the title company that prepared the deed.

      . The original plaintiff was Wells Fargo Bank, N.A. Ultimately the current appellant, Heartwood 2, LLC, succeeded to the interests of Wells Fargo regarding the loan and was duly substituted as plaintiff.

      . Although the first allegation in Count II begins "This is an action to reform a Mortgage,” the caption indicates that Count II seeks reformation of a deed, and the defective legal description is the one set forth in the deed (containing blanks instead of the official records book and page of the recorded declaration of condominium), not the mortgage.

      .Florida Rule of Civil Procedure 1.010 provides that the rules "shall be construed to secure the just, speedy, and inexpensive determination of every action.” Florida Rule of Judicial Administration 2.250, which sets "presumptively reasonable” times for the completion of cases, allows 12 months from the filing of a non-jury civil case to final disposition.

      . Counsel for the parties in this appeal were not involved in such lapses or the errors re-fleeted in the record before us.


author: COHEN, C.J.

text:
    Dawnmarie LOFTIS, Appellant, v. Daniel C. LOFTIS, Appellee.
    Case No. 5D16-1428
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 13, 2017

      Jerald D. Stubbs, Merritt Island, for Appellant.
    Heather M. Kolinsky and Susan W. Fox, of Fox & Loquasto, P.A., Orlando, for Ap-pellee.
   COHEN, C.J.

Dawnmarie Loftis (“Former Wife”) appeals from a final judgment establishing a parenting plan, child support obligations, and other matters following the dissolution of her marriage to Daniel Loftis (“Former Husband”). She raises three issues on appeal, only one of which merits discussion. After the conclusion of the final hearing, but before entry of the final judgment, Former Wife filed a motion to reopen the case to receive new evidence. In support of her motion, she filed a termination notice from her employer along with an affidavit stating that she had received the notice. Former Wife claimed that her unemployment would significantly change the considerations regarding child support in the final judgment.

Former Husband objected to the motion to reopen, arguing that because Former Wife was not simply seeking to correct an inadvertent evidentiary omission, reopening the evidence would have required significant additional discovery and proceedings. Former Husband maintained that he would have been prejudiced by the granting of the motion and that Former Wife could seek relief by filing a petition for modification pursuant • to section 61.14(l)(a), Florida Statutes (2015).

The trial court held two hearings on the motion, which was ultimately denied. Subsequently, the court entered a final judgment, which included the parenting plan. The plan provided two-thirds of the overnights with the children to Former Husband and one-third to Former Wife. Based on the child-support guidelines, the court ordered Former Wife to pay child support to Former Husband, utilizing Former Wife’s pre-termination salary for purposes of calculating the support obligation. This appeal followed.

This Court reviews the . denial of a motion to reopen a case for abuse of discretion. Grider-Garcia v. State Farm Mut. Auto., 73 So.3d 847, 849 (Fla. 5th DCA 2011). The trial court has broad discretion to allow a party to reopen its case throughout all stages of the proceedings. Id. (citing Amador v. Amador, 796 So.2d 1212, 1213 (Fla. 3d DCA 2001)). The trial court should consider whether granting a motion to reopen to present additional evidence would unfairly prejudice the opposing party and whether it would “seiwe the best interests of justice.” Robinson v. Weiland, 936 So.2d 777, 781 (Fla. 5th DCA 2006). Factors to consider when deciding whether to reopen the evidence include: “(1) the timeliness of the request, (2) the character of the evidence sought to be introduced, (3) the effect of allowing the evidence to be admitted, and (4) the reasonableness of the excuse justifying the request to reopen.” Grider-Garcia, 73 So.3d at 849 (citing Register v. State, 718 So.2d 350 (Fla. 5th DCA 1998)).

Most of the cases Former Wife relies on to support her motion to reopen involved inadvertent omissions of evidence. See Grider-Garcia, 73 So.3d at 848 (plaintiff inadvertently omitted insurance contract from evidence, which was the basis for the claim); Amador, 796 So.2d at 1213 (attorney’s fee agreement inadvertently omitted by husband seeking fees in dissolution proceeding); Hernandez v. Cacciamani Dev. Co., 698 So.2d 927, 929 (Fla. 3d DCA 1997) (denial of motion for rehearing ter admit original note and assignment into evidence in suit to enforce promissory note). These cases are inapposite because the evidence of Former Wife’s employment termination interjected an entirely new issue into this case rather than seeking to correct an inadvertent evidentiary oversight. See, e.g., Silber v. Cn’R Indus. of Jacksonville, Inc., 526 So,2d 974, 978 (Fla. 1st DCA 1988) (distinguishing between granting motions to reopen when evidence is inadvertently omitted from cases where a party seeks “to reopen its case, change the evidence to alter the existing facts, and then adduce proof of the new facts as altered by using the evidence of such changes”).

Nor does Byrne v. Byrne, 128 So.3d 2 (Fla. 3d DCA 2012), support Former Wife’s position. In Byrne, the wife’s motion to reopen was not opposed by the husband, nor was there any discussion of prejudice. 128 So.3d at 6. Here, Former Husband opposed the motion, arguing that it would be prejudicial because it would require additional discovery and further delay the entry of final judgment.

We are not unsympathetic to Former Wife’s position. The trial court delayed entering the final judgment for almost eleven months, and in the interim, Former Wife had a significant change in income. Still, the primary considerations in granting or denying a motion to reopen are whether reopening the case would unduly prejudice the opposing party and whether it will “serve the best interests of justice.” See Robinson, 936 So.2d at 781. In this case, granting Former Wife’s motion would have effectively put the case back to square one, further delaying entry of a final judgment, allowing further discovery, and essentially requiring a new trial. While granting the request would have been well within the trial court’s discretion, we cannot say that the trial court abused its discretion in denying the motion.

AFFIRMED.

BERGER and WALLIS, JJ., concur.

      . For example, Former Husband argues that the circumstances surrounding Former Wife’s termination were unclear, and further discovery would be necessary to determine whether her unemployment was voluntary, whether income should be imputed to Former Wife, and whether she had future employment prospects.

      . Former Wife was not, and is not, without an opportunity to seek relief. See § 61,14(l)(a), Fla. Stat. (providing equitable powers to retroactively modify a child-support order).


author: SUAREZ, C.J.

text:
    LOWE’S HOME CENTERS, INC., Petitioner, v. Orlando DUQUE, Respondent.
    No. 3D16-2658
    District Court of Appeal of Florida, Third District.
    Opinion filed January 18, 2017
    Vernis & Bowling of Miami, P.A. and Andrew W. Bray; Berger Singerman LLP and Frank Scruggs and Lara O’Donnell Grillo (Ft. Lauderdale), for petitioner.
    Mark D. Press, P.A. and Mark D. Press; Ansel & Miller, P.A. and Eric Ansel (Hollywood), for respondent.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
   SUAREZ, C.J.

Lowe’s Home Centers, Inc. petitions for writ of certiorari, seeking to quash the trial court’s grant of the Plaintiffs, Orlando Duque’s, motion for rehearing and clarification of the summary judgment order in Lowe’s favor, and the trial court’s subsequent vacation -of its summary judgment order and setting the cause for trial. We deny the petition. The trial court’s order is not a departure from the essential requirements of law for which there is no adequate remedy on appeal.

Petition denied.


author: PER CURIAM.

text:
    Kafele CLARKE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4128
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 20, 2017
    Robert Wesley, Public Defender, Orlando, and, Jared Adelman, Assistant Public Defender, Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal- from the November 4, 2016, judgment and sentence in Case No. 2016-CF-001473-A-OR in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, ORFINGER, LAMBERT, JJ., concur.


text:
    Reginal M. HARDY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3636
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 20, 2017
    Reginal M. Hardy, Trenton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Reginal Hardy appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence, which challenges his sexual predator designation. We reverse.

On April 13, 2012, Hardy was arrested in Brevard County for procuring a person under' age 18 for prostitution, a second-degree felony, in violation of section 796.03, Florida Statutes (2012). On September 12, 2012, he was arrested in Orange County for a separate commission of the same offense. On July 23, 2013, Hardy entered a plea to the Orange County case and was placed on probation for five years. Thereafter, on October 11, 2013, he entered a plea to the Brevard County case, was placed on probation for ten years, and was designated a sexual predator. The trial court used the Orange County conviction as the predicate prior conviction for the sexual predator designation, concluding the date of sentencing was controlling. This was error.

In order to be counted as a prior felony for the purpose of designating a defendant a sexual predator, “the felony must have resulted in a conviction sentenced separately, or an adjudication of delinquency entered separately, prior to the current offense and sentenced or adjudicated separately from any other felony conviction that is to be counted as a prior felony regardless of the date of offense of the prior felony.” § 775.21(4)(b), Fla. Stat. (2012) (emphasis added). This means the conviction and sentence on the predicate prior felony must be entered before the current felony is committed. See id.; Sadler v. State, 112 So.3d 498, 499 (Fla. 1st DCA 2012) (holding that a conviction and sentence for a predicate offense that is entered after the commission of the current offense does not qualify as a prior felony within the meaning of the sexual predator statute).

Applied to this case, the Orange County conviction can only be used as the predicate prior conviction for designating Hardy a sexual predator in the Brevard County case if he was convicted and sentenced in the Orange County case before the date of the Brevard offense. In other words, in order for the Orange County conviction to qualify as the predicate offense, the Bre-vard County case must have occurred sometime after July 23, 2013, which was the date Hardy was convicted and sentenced in Orange County.

Although the date the Brevard County offense was committed is not included in the record, it is not necessary for our analysis. Hardy was arrested for the Bre-vard County offense on April 13, 2012, more than a year before he was convicted and sentenced on the Orange County ease. As such, the Orange County conviction cannot be used to qualify him as a sexual predator.

Accordingly, we reverse the denial of Hardy’s motion to correct illegal sentence and remand for the trial court to strike the sexual predator designation.

REVERSED and REMANDED.

ORFINGER, BERGER, JJ., and JACOBUS, B.W., Senior Judge, concur.

      . In 2016, Hardy violated his probation in the Brevard County case and was sentenced to serve 30 months in prison.

      . The Brevard offense may or may not have been committed on the date of the arrest, but it was certainly not committed after his arrest.


text:
    Salvatore J. CIPOLLA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-3510
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 20, 2017
    Salvatore J. Cipolla, Orlando, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the December 8, 2014 judgments and sentences in Case No. 2010-CF-30286-A in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(d).

PETITION GRANTED.

COHEN, C.J., ORFINGER and BERGER, JJ. concur.


author: PER CURIAM. LAMBERT, J.,

text:
    Michael WEBB, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3139
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 20, 2017
    Michael Webb, Crawfordville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Michael Webb appeals the summary denial of his successive motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Two through Ten. However, because the record does not conclusively refute Webb’s claims that counsel was ineffective for advising him to reject a plea offer, we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996))).

AFFIRMED in part, REVERSED in part, and REMANDED.

BERGER and WALLIS, JJ., concur.

LAMBERT, J., concurs specially, with opinion.

LAMBERT, J.,

concurring specially.

I agree with the decision to affirm the summary denial of grounds two through ten of Webb’s rule 3.850 motion for post-conviction relief. I also agree with reversing the summary denial of ground one. In that ground, Webb alleged that his trial counsel was constitutionally ineffective for misadvising him to reject a favorable plea offer from the State, having purportedly told Webb that because the State’s offer was not in writing, it was likely a “ruse” to obtain a “guilty admission” from Webb that counsel suggested could thereafter be used against Webb at trial if the court rejected the plea agreement. As farfetched as this claim sounds, the postconviction court summarily denied this ground based on its findings that, at the March 6, 2013 status conference, the State’s plea offer was conveyed to Webb by counsel and Webb advised the court that he understood the offer and voluntarily chose to reject it. Although the court attached to the denial order a copy of the transcript of this status conference, nothing contained in the transcript conclusively refutes this claim of misadvice by counsel, and the court did not directly address the issue in its order.

In this case, both Webb and the postcon-viction court acknowledge that the instant rule 3.850 motion was not Webb’s first such motion. Rule 3.850(h)(2) permits a trial court to dismiss a successive rule 3.850 motion raising new or different grounds for relief if the court finds that there was no good cause for the failure to assert those grounds in a prior motion or that the failure to previously assert these grounds constituted an abuse of the procedure. The one ground for which we are reversing clearly could have and should have been asserted in at least one of Webb’s prior motions, and Webb’s explanation in his present motion for not doing so does not, in my view, establish good cause and is an abuse of the procedure. If Webb’s first or second rule 3.850 motion had been denied on the merits, the post-conviction court could have summarily dismissed this present motion, provided that it attached to its order copies of its prior denial order(s) on the merits and Webb’s earlier postconviction motion(s). See Fla. R. Crim. P. 3.850(h)(2); Meyer v. State, 69 So.3d 1037, 1038 (Fla. 5th DCA 2011) (reversing the summary denial of a successive rule 3.850 motion for trial court’s failure to attach to the denial order copies of the previous motion and denial order to demonstrate the successiveness of the motion). I see no reason why the postconviction court, on remand, could not summarily dismiss this remaining ground, provided again that at least one of Webb’s prior rule 3.850 motions was denied on the merits and the requisite copies of the court record are attached to the order.

      . We note that a trial court may also dismiss a postconviction motion raising new or different claims for relief as successive if it finds there was "no good cause for the failure of the defendant ... to have asserted those grounds in a prior motion.” See Fla. R, Crim. P. 3.850(h)(2).

      . Webb, who is presently in the custody of the Florida Department of Corrections, claimed that he was misadvised by "institution law clerks” that the "trial court errors” raised in his earlier motions were cognizable in post-conviction proceedings and that Webb could "later amend and supplement further claims at any time.”


text:
    Jose A. TORRES Sr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1602
    District Court of Appeal of Florida, First District.
    Opinion filed January 23, 2017.
    Jose A. Torres Sr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Julian E. Markham, Assistant Attorney General, for Appellee.
   PER CURIAM.

Appellant, Jose A. Torres, Sr., appeals an order transferring his petition for writ of habeas corpus from the Second Judicial Circuit to the Sixth Judicial Circuit. The trial court properly determined that it lacked jurisdiction to consider Appellant’s petition wherein he challenged the sufficiency of the charging instrument that was filed in his case. See Baker v. State, 164 So.3d 38, 39 (Fla. 3d DCA 2015) (“[T]he court of conviction has jurisdiction over Baker’s habeas petition because the petition challenges the sufficiency of the charging document which amounts to a collateral attack on Baker’s 1996 conviction.”); Stokes v. State, 3 So.3d 425, 425 (Fla. 3d DCA 2009) (noting that a circuit court of the county in which a defendant is incarcerated has jurisdiction to consider a petition for writ of habeas corpus when the claims raised in the petition concern issues regarding his incarceration but not when the claims attack the validity of the judgment and sentence); see also Price v. State, 995 So.2d 401, 404 (Fla. 2008) (noting that generally the test for granting relief based on a defect in the information is actual prejudice to the fairness of the trial (emphasis added)). On appeal, the State argues that although transfer was appropriate, the trial court should have transferred the case to the Twelfth Judicial Circuit given that Appellant’s judgment was entered there. While the State is correct, it included within its appendix an Order Transferring Jurisdiction that was entered by the Sixth Judicial Circuit and that transferred Appellant’s petition to the Twelfth Judicial Circuit. As such, we decline the State’s request to order the transfer of Appellant’s petition to that circuit.

AFFIRMED.

LEWIS, BILBREY, and WINOKUR, JJ., CONCUR.


text:
    Christopher D. WERLEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-2628
    District Court of Appeal of Florida, First District.
    Opinion filed January 23, 2017.
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee; Christopher D. Werley, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the order revoking probation and the sentence that followed. We remand, however, for correction of a scrivener’s error in the written order. The court’s oral pronouncement found appellant committed two crimes in violation of one probation condition; whereas the written order found he violated several conditions, The trial court should amend the written order to comport with its oral pronouncement. See Kemp v. State, 135 So.3d 347 (Fla. 1st DCA 2013).

AFFIRMED; REMANDED with directions.

OSTERHAUS, JAY, and WINSOR, JJ„ CONCUR.


author: LOGUE, J.

text:
    Anthony CHAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2294
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and LOGUE, JJ.
   LOGUE, J.

Affirmed. See Lynch v. State, 293 So.2d 44, 45 (Fla. 1974) (“A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.”).


text:
    Armon EVERETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1219
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Floyd v. State, 569 So.2d 1225, 1232 (Fla. 1990) (“Lay witness opinion is admissible if it is within the ken of an intelligent person with a degree of experience. ... We find the officers’ testimony within the permissible range of lay observation and ordinary police experience.”)


text:
    Ricardo MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2492
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017.
    Rehearing Denied January 25, 2017
    Ricardo Miller, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LAGOA and FERNANDEZ, JJ., and SHEPHERD, Senior Judge.
   ON MOTION FOR REHEARING AND/OR CLARIFICATION

PER CURIAM.

This cause is before us on the State of Florida’s Motion for Rehearing and/or Clarification. We deny the motion for rehearing, but withdraw our December 21, 2016 opinion and substitute this opinion in its place.

Miller appeals the trial court’s September 16, 2015 order denying his 3.850(b)(2) motion for post-conviction relief, arguing he is entitled to resentencing in conformance with chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. We reverse and remand.

Miller was found guilty of first-degree murder following a jury trial and in 1973 was sentenced to life in prison. Miller claims he should be resentenced because he was a juvenile at the time he committed the crime. Based on our reading of the applicable sentencing statutes and our recent decision in Neely v. State, No. 3D14-1052, 207 So.3d 357, 2016 WL 6992563 (Fla. 3d DCA Nov. 30, 2016), all juveniles are entitled to judicial review and resen-tencing in accordance with the new statutes. Miller is thus entitled to judicial review and resentencing.

We therefore reverse Miller’s first-degree murder sentence and remand to the trial court for the appropriate resentencing under section 775.082(l)(b)(l), Florida Statutes (2016), section 921.1401, Florida Statutes (2014), and section 921.1402, Florida Statutes (2015).

Reversed and remanded with directions.

      . The State’s contention that Miller was parole-eligible as early as twelve years after the commission of first-degree murder is irrelevant.

      . The State argues that “other than [Miller] being entitled to a sentence review hearing under section 921.1402(2)(a), [Miller] is not entitled to be resentenced under the new juvenile sentencing statutes.” We disagree with this contention. Section 921.1402(1) provides that "[f]or purposes of this section, the term ‘juvenile offender’ means a person sentenced to imprisonment in the custody of the Department of Corrections for an offense committed on or after July 1, 2014, and committed before he or she attained 18 years of age.” Both section 921.1402 and section 775.082 are interrelated. Section 921.1402(2)(a) specifically refers and incorporates sentencing under the revised version of section 775.082(l)(b)(l), which provides for judicial review. If judicial review could be applied to a pre-1994 life sentence, the Florida Supreme Court would have required judicial review, not resentenc-ing. Thus, the only method available to a juvenile sentenced before July 1, 2014 to obtain judicial review is resentencing under the new statutes.


author: LAGOA, J.

text:
    Rebecca FERNANDEZ-ANDREW, Petitioner, v. FLORIDA PENINSULA INSURANCE COMPANY, Respondent.
    No. 3D16-331
    District Court of Appeal of Florida, Third District.
    Opinion filed January 25, 2017

      Alvarez, Carbonell, Feltman & DaSilva, P.L., and Paul B. Peltman, for petitioner.
    Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A. Valdez and Jose E. Bosch (Tampa), for respondent.
    Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
   LAGOA, J.

The insured, Rebecca Fernandez-Andrew (“Petitioner”), petitions this Court for a writ of certiorari seeking to quash the trial court’s order abating her declaratory judgment action against the insurer, Florida Peninsula Insurance Company (“FPIC”), and enforcing the option to repair provision contained in the insurance policy at issue. Because Petitioner has failed to meet the threshold requirement of showing that the circuit court’s order creates irreparable harm, we dismiss the petition for writ of certiorari for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL HISTORY

The Petitioner had a homeowner’s insurance policy with FPIC. The policy contained an option to repair provision:

9. Our Option
At our option, in lieu of issuing any loss payment, if we choose to exercise our option: a. For losses settled on an actual cash value basis, we may repair or replace any part of the damaged property with material or property of like kind and quality; b. For losses covered under Coverage A — Dwelling, insured for Replacement Cost Loss Settlement as outlined in Section 1 — Conditions, Loss Settlement, we may repair the damaged property with material of like kind and quality without deduction for depreciation.
f. You must execute all work authorizations to allow contractors and related parties entry to the property, g. You must otherwise cooperate with repairs to the property.
i. Our right to repair or replace, and our decision to do so, is a material part of this contract and under no circumstances relieves you or us of our mutual duties and obligations under this contract.

Petitioner’s home was damaged as a result of a plumbing leak that occurred on July 20, 2014, while the policy was in full force and effect. Petitioner reported the loss to FPIC on July 30, 2014, and FPIC thereafter informed Petitioner that her covered damages would be repaired.

In early October, 2014, FPIC sent two contractors, one of which was Florida Executive Builders (“FEB”), to the property. Each provided an estimate of repairs. On November 25, 2014, Petitioner’s public adjuster, Robert Inguanzo (“Inguanzo”), sent FPIC a letter stating a “damage estimate comparison depicting an overall difference of $13,852.23 due to scope differences.” Petitioner subsequently signed the work authorization for FEB, adding the handwritten words, “All rights reserved; Executed under protest.” Petitioner continued to assert that FPIC provide an updated estimate and scope of work that matched Inguanzo’s estimate, and that prior to beginning work, FPIC assure her that the work performed by FEB would comply with the scope detailed in Inguanzo’s estimate.

In July of 2015, Petitioner filed a complaint for declaratory relief, seeking a determination of, among other things, the scope of repairs to be performed and whether the option to repair provision was properly invoked under the terms of the policy. In response, FPIC filed a motion to abate action and/or compel Plaintiff [Petitioner] to comply with FPIC’s right to exercise option to repair damaged property. Petitioner then filed a motion for summary judgment and response to FPIC’s motion to abate and/or compel. Petitioner argued that FPIC’s estimate was insufficient and failed to address all needed repairs given the scope of damage and that Inguanzo’s estimate accurately reflected the full scope, cost, and extent of damages. After a hearing, the trial court entered an order granting FPIC’s motion to abate action and/or compel Petitioner to comply with FPIC’s option to repair.

II. ANALYSIS

The Supreme Court of Florida has made clear that certiorari relief is available in limited circumstances, and that a showing of irreparable harm is a condition precedent to invoking this Court’s cer-tiorari jurisdiction:

A finding that the petitioning party has “suffered an irreparable harm that cannot be remedied on direct appeal” is a “condition precedent to invoking a district court’s certiorari jurisdiction.”
If the party seeking review does not demonstrate that it will suffer material injury of an irreparable nature, then an appellate court may not grant certiorari relief from a non-appealable non-final order.

Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454-55 (Fla. 2012) (citations omitted). See also Coral Gables Chiropractic PLLC v. United Auto. Ins. Co., 199 So.3d 292, 293 (Fla. 3d DCA 2016) (stating that if a petition for certiorari fails to make a threshold showing of irreparable harm, the Court will dismiss the petition),

Because Petitioner seeks review of a non-final order for which no appeal is provided by Florida Rule of Appellate Procedure 9.130, this Court’s review is limited to a determination of whether Petitioner has established that the trial court’s order granting FPIC’s motion to abate and to compel Petitioner to comply with FPIC’s option to repair constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on postjudgment appeal, such that certiorari relief is warranted. See Bd. of Trs. of Internal Improvement Tr. Fund, 99 So.3d at 454-55; Coral Gables Chiropractic, 199 So.3d at 294; Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.3d 804, 807 (Fla. 3d DCA 2014).

In support of Petitioner’s contention that she has demonstrated irreparable harm, Petitioner asserts that the work authorization is a full release of liability in favor of FPIC, and that it “inoculates” FPIC from any attempt by Petitioner to lift the abatement and re-open proceedings against it. At oral argument, however, counsel for FPIC represented to this Court that after the repairs are made, Petitioner may properly seek to lift the abatement in order to dispute the scope of repairs or allege the failure of FPIC to return the property to its pre-loss condition.

Because FPIC agrees that Petitioner is not precluded from maintaining her suit after FEB completes its repairs to the property, the trial court’s order does not result in irreparable harm, see generally K.G. v. Florida Dep’t of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011) (“A petitioner can show irreparable harm by demonstrating either that the injury cannot be redressed in a court of law or that there is no adequate legal remedy.”), and relief via certiorari is not available. Because Petitioner has not made a threshold showing of irreparable harm, this Court need not reach the issue of whether the trial court’s order constitutes a departure from the essential requirements of the law.

m. CONCLUSION

Based on the particular facts and circumstances of the instant case, we conclude that the petition fails to establish that the trial court’s order of abatement results in irreparable harm. Accordingly, we dismiss the petition for certiorari for lack of jurisdiction.

Dismissed.