author: BADALAMENTI, Judge. BLACK, Judge,

text:
    David L. HARKLESS, Appellant, v. David A. LAUBHAN and Susan W. Laubhan, Appellees.
    Case No. 2D15-5385
    District Court of Appeal of Florida, Second District.
    Opinion filed December 21, 2016.
    Rehearing Denied January 30, 2017

      Glenn N. Siegel, of Glenn N. Siegel, P.A., Port Charlotte, for Appellant.
    Warren R. Ross, of Wotitzky, Wotitzky, Ross & McKinley, P.A., Punta Gorda, for Appellees.
   BADALAMENTI, Judge.

David L. Harkless appeals the trial court’s final summary judgment entered in favor of David and Susan Laubhan. ’The crux of this dispute is whether Mr. Hark-less reserved the right to receive rent from a parcel of land that he used to own and that the Laubhans eventually came to own.

We reverse the grant of summary judgment. Mr. Harkless reserved his right to receive rent in a sales contract with an intermediate purchaser. That reservation did not merge into any subsequent deed. Nevertheless, there remains a genuine issue of material fact as to whether the Laubhans were bona fide purchasers for value and without notice, rendering summary judgment inappropriate. Our reversal extends to any relief the trial court provided to the Laubhans on their counterclaim.

I. STATEMENT OF FACTS & PROCEDURAL POSTURE

Mr. Harkless owned land in DeSoto County. In 2008, he entered into a land lease agreement (the Lease) with Verizon Wireless. Under the Lease, Mr. Harkless leased a 100- by 100-foot parcel of his land (the Parcel) to Verizon, along with an accompanying easement for Verizon to build a cell tower. In return, Verizon agreed to pay Mr. Harkless $13,800 a year in rent. Verizon did not commence construction of the tower until May 2012.

In 2011, Mr. Harkless sold ten acres of his land to Reed and Beth Lolly, who planned to operate a blueberry farm. Those ten acres contained the Parcel. Paragraph 18 of the sales contract between Mr. Harkless and the Lollys (the Harkless-Lolly contract) contains a handwritten addendum entitled “Additional Terms.” The addendum states, “The Easement for the said Verizon Cell Tower location is 115 ft x 115 ft in which the seller David L. Harkless shall continue and remain owner of said easement and Verizon cell tower lease.” However, the subsequent warranty deed from Mr. Harkless to the Lollys (April 2011 Deed) did not contain a similar provision specifically memorializing Mr. Harkless’s right to receive rent.

Three months later, after deciding that market conditions for blueberries were unfavorable, the Lollys sold the ten acres to the Laubhans—retirees who owned a small ranch on adjoining land. The sales contract between the Lollys and the Laubhans (the Lolly-Laubhan contract) made no express mention of Mr. Harkless’s remaining interest in the Parcel. Unlike paragraph 18 of the Harkless-Lolly contract, paragraph 18 of the Lolly-Laubhan contract provides, “Buyer is aware of Verizon tower lease and has received a copy of the survey and lease.” The warranty deed from the Lollys to the Laubhans (the July 2011 Deed) contained no language addressing Mr. Harkless’s right to receive rent under the Lease.

Both the April 2011 Deed and the July 2011 Deed stated that they were “subject to a (Verizon Wireless) Easement as described in Instrument # 200814009062, De-Soto County, Florida.” That instrument, entitled “Amended Memorandum of Lease Agreement,” is essentially an abridged version of the Lease. The Amended Memorandum is silent as to Mr.' Harkless retaining his right to receive rent.

Shortly before Verizon began construction of the tower in May 2012, Mr. Hark-less gave Communications Capital Group, LLC, the-option to purchase his interest in the - Lease for $175,000. Communications Capital thereafter sent- the - Laubhans a letter asking them to sign and notarize documents which purported to memorialize Mr.- Harkless’s continued right to receive rent under the Lease. The Laubhans responded that they owned the Parcel free and clear of Mr. Harkless’s right to receive rent. As a refeult of this claim, Communications Capital did not exercise its option.

Mr. Harkless then filed a two-count complaint, against the Laubhans. He sought a declaratory judgment that he had the right to receive rent under the Lease. He also sought reformation • of both the April 2011 Deed and July.2011 Deed to reflect this right. The Laubhans moved for summary judgment. They argued that the April 2011 Deed and the July 2011 Deed failed to expressly reserve Mr. Harkless’s right to receive rent. Accordingly, the Lau-bhans maintained that the right to receive rent was presumptively conveyed from Mr. Harkless to the Lollys and ultimately from the Lollys to the Laubhans.

In support of their summary judgment motion, the Laubhans filed a Statement of Undisputed Facts. This Statement provides that “the language of the [two real estate sales] contracts was different in paragraph 18” and the Laubhans “were not aware before this litigation of the contractual agreement between Mr. Harkless and the Lollys by which the Lollys specifically agreed that- Mr. Harkless was to receive the Verizon.lease payments.”

At the summary judgment hearing, the Laubhans contended that the only relevant documents for the trial court to consider were the April 2011 Deed, the July 2011 Deed, and the Amended Memorandum of Lease Agreement mentioned in both Deeds. Because none of those documents explicitly reserved Mr. Harkless’s right to receive rent, the Laubhans maintained that Mr. Harkless necessarily conveyed that right away, along with the rest of his rights to the Parcel. The Laubhans asserted that the trial court should disregard any other documents which might indicate otherwise as inadmissible parol evidence. Seemingly, they acknowledge that the Harkless-Lolly contract reflected an intent that Mr. Harkless retain the right to receive rent under the Lease. The Laubhans conceded that their theory of the case would result in an “unintended consequence” for Mr. Harkless and the Lollys. Seizing on this concession in opposing the motion, Mr. Harkless pointed to the deposition testimony of himself and the Lollys which reflected that every party to the April 2011 Deed understood that Mr. Harkless retained the right to receive rent. The Laubhans countered that intent was irrelevant because the intent was never “put in a document” recorded in the public records.

Ultimately, the trial court granted the Laubhans’ motion for summary judgment.

II. DISCUSSION

Mr. Harkless argues that the trial court improperly granted summary judgment in favor of the Laubhans. More specifically, he asserts that genuine issues of material fact exist as to whether he reserved his right to receive rent and whether the Laubhans were bona fide purchasers for value without notice. “If the record reflects the existence of any genuine issue of material fact ... summary judgment is improper.” Alderman v. BCI Eng’rs & Scientists, Inc., 68 So.3d 396, 399 (Fla. 2d DCA 2011) (quoting Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991)). Whether or not a party is a bona fide purchaser for value without notice is an issue of material fact which may prompt the reversal of a summary judgment. See McCoy v. Love, 382 So.2d 647, 649 (Fla. 1979).

A. Reservation of Mr. Harkless’s Right to Receive Rent

We interpret contracts in accordance with their plain and ordinary meaning when the contractual language is clear and unambiguous. See Bioscience W., Inc. v. Gulfstream Prop. & Cas. Ins. Co., 185 So.3d 638, 640 (Fla. 2d DCA 2016). Similarly, “[w]hen the language of a deed is clear and certain in meaning and the grantor’s intention is reflected by the language employed, there is no room for judicial construction of the language nor interpretation of the words used.” Rogers v. United States, 184 So.3d 1087, 1095 (Fla. 2015) (quoting Saltzman v. Ahern, 306 So.2d 537, 539 (Fla. 1st DCA 1975)).

Neither the April 2011 Deed nor the July 2011 Deed contains language specifically reserving Mr. Harkless’s right to receive rent pursuant to the Lease. Yet, in their Statement of Undisputed Facts, the Laubhans concede that Mr. Harkless and the Lollys “specifically agreed that Harkless was to receive the Verizon lease payments.” We likewise agree that the “Additional Terms” section of the Hark-less-Lolly contract reserved Mr, Hark-less’s right to receive rent. See Gray v. Callahan, 143 Fla. 673, 197 So. 396, 398-99 (1940) (“The transferor of [a] reversion may ... in the transfer expressly reserve the rent for part [or] all of the term granted by the lease .... ” (quoting 16 Ruling Case Law, Landlord and Tenant § 128 (William M. McKinney & Burdett A. Rich eds., 1917))); 1 Herbert Thorndike Tiffany, The Law of Real Property and Other Interests in Land § 53(a) (1920) (explaining that, when a lessor uses language referring to the “transfer of a lease,” they are ordinarily referring to transfer of the right to receive rent, as opposed to the transfer of some reversion-ary interest).

B. Extrinsic Evidence, Merger by Deed, and the Intent of the Parties

Because Mr. Harkless reserved his right to receive rent in the Harkless-Lolly contract, we must reckon with the Lau-bhans’ arguments concerning ambiguity and merger by deed. At the hearing on their summary judgment motion, the Lau-bhans asserted that even if Mr. Harkless reserved his right to receive rent in the Harkless-Lolly contract, that right merged into the April 2011 Deed without specific reservation and was then conveyed to the Laubhans in the July 2011 Deed. Accordingly, the Laubhans believe that the Harkless-Lolly contract is inadmissible parol evidence and cannot be used to construe the otherwise unambiguous language of conveyance in the April 2011 Deed and July 2011 Deed.

It is axiomatic that preliminary agreements concerning the sale of property merge into the deed executed pursuant to the sale. Morton v. Attorneys’ Title Ins. Fund, Inc., 32 So.3d 68, 72 n.3 (Fla. 2d DCA 2009) (quoting Engle Homes, Inc. v. Jones, 870 So.2d 908, 910 (Fla. 4th DCA 2004)). This axiom encompasses real estate sales contracts. See Stephan v. Brown, 233 So.2d 140, 141 (Fla. 2d DCA 1970).

The doctrine of merger by deed, however, is an extension of the general principle of integration in written contracts. Whether discussing merger into a deed or integration of a prior agreement into a subsequent contract, our guiding principle is the intent of the parties. See Jenkins v. Eckerd Corp., 913 So.2d 43, 53 (Fla. 1st DCA 2005) (“The concept of integration is based on a presumption that the parties to a written contract intended that writing ‘to be the sole expositor of their agreement.’ ” (quoting Everglade Lumber Co. v. Nettleton Lumber Co., 111 Fla. 333, 149 So. 736, 738 (1933))). If it is undisputed that none of the parties to a real estate transaction intended for certain provisions of their real estate sales contract to merge into a subsequent deed, then no merger takes place as' to those provisions. See Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967) (“The rule that acceptance of a deed tendered in performance of a contract to convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply to those provisions of the antecedent contract which the parties do not intend to be incor-. porated in the deed .... ”).

Although the April 2011 Deed does not expressly reserve Mr, Harkless’s right to receive rent, all of the parties to that deed—Mr. Harkless and. the Lollys—pat-ently testified in their depositions that they intended for Mr. Harkless to retain the right to receive rent under the Lease and that they understood paragraph 18 of the Harkless-Lolly sales contract to effectuate this retention. Moreover, the Lau-bhans stipulated to the same construction of paragraph 18 in their Statement of Undisputed Facts. Because all parties to the Harkless-Lolly sales contract agree that paragraph 18 was intended to reserve Mr. Harkless’s right to receive rent, that right did not merge into the April 2011 Deed as a matter of law. And because Mr. Harkless and the Lollys do not dispute that paragraph 18 never merged into the April 2011 Deed, it is irrelevant whether or not the April 2011 Deed is unambiguous on its face. See Milu, Inc., 204 So.2d at 33; see also Providence Square Ass’n v. Biancardi, 507 So.2d 1366, 1371 (Fla. 1987) (“In a reformation action in equity ... parol evidence is admissible for the purpose of demonstrating that the true intent of the parties was something other than that expressed in the written instrument.”).

C. The Phrase “Subject to” in the April 2011 and July 2011 Deeds

We recognize there áre some judicial opinions in Florida which could be read to suggest that, if a deed contains the phrase “subject to,” then the deed could be rendered- generally ambiguous. See, e.g., Hastie v. Ekholm, 199 So.3d 461, 464 (Fla. 4th DCA 2016) (holding that phrase “subject to” created an ambiguity in deeds to separate lots which were once under common ownership, where some of the deeds said they were “subject to an easement,” and others said-they were “subject, to a right of way for ingress and egress”); Cook v. Tradewinds W. Condo., Inc., 636 So.2d 591, 593 (Fla. 3d DCA 1994) (holding that the phrase “subject to” created an ambiguity in a deed, where (1) the right to receive rent- under a preexisting lease had been severed from the deeded land for ten years, and (2) plaintiffs were aware of the preexisting lease and owned the land for six years before bringing suit).

The origin of this Case law is Procacci v. Zacco, 324 So.2d 180, 181 (Fla. 4th DCA 1975), wherein a probate estate deeded a parcel of land to an heir and an adjacent parcel of land to a petroleum company. The deed to the petroleum company stated that the company’s land was “subject to” a right-of-way easement. Id. at 182. When the petroleum company began constructing buildings which interfered with the easement, the heir filed for an injunction. Id. The trial court held that the -phrase “subject to” was insufficient to reserve any easement whatsoever and the Fourth District agreed. Id In explaining its affir-mance, the Fourth District opined that the phrase “subject to” was so ambiguous that, as a standalone legal incantation, it was insufficient to create any easement. Id. at 181-82. But the Fourth District also noted that the estate later quitclaimed all of its interest to the petroleum company and that the heir’s deed did not contain any mention of an easement. Id at 182.

The case before us is distinguishable from Procacci, and from cases which rely on Procacci, such as Hastie and Cook. First, the right to receive rent is distinct from an easement. Compare Penthouse N. Ass’n v. Lombardi, 461 So.2d 1350, 1352 (Fla. 1984) (describing rent as a contingent obligation to pay by a lessee “which becomes an enforceable debt only as the rent is earned through the lessee’s use of the property” (citing De Vore v. Lee, 158 Fla. 608, 30 So.2d 924, 926 (1947))), with Sears, Roebuck & Co. v. Franchise Fin. Corp. of Am., 711 So.2d 1189, 1191 (Fla. 2d DCA 1998) (“An easement is an incorporeal, nonpossessory interest in land which con-cents the use of the land of another.”). Unlike Procacci or Hastie, the case before us does not concern two plots of land which were once under common ownership and now contain different language concerning easements in their respective deeds. Thus, even if the “subject to” language in the April 2011 and July 2011 Deeds contains some ambiguity as to Verizon’s easement, it is inconsequential here because the right at issue is not an easement.

Second, the rule expressed in Procacci derives from the broader notion that the phrase “subject to,” when paired with language describing an interest in real property, can only denote a preexisting interest, not create a new one. See Star Island Assocs. v. City of St. Petersburg Beach, 433 So.2d 998, 1004 (Fla. 2d DCA 1983) (applying the rule in Procacci, where the deeds at issue were “subject to” an easement but did “not refer to any prior instrument purporting to create such an easement, nor do the deeds identify the location of the easement”); see also Wild River Adventures, Inc. v. Bd. of Trustees of Sch. Dist. No. 8, 248 Mont. 397, 812 P.2d 344, 347 (1991) (explaining the words “subject to” do not create an easement, and that the purpose of such language is to exclude preexisting easements from warranties of title). But if the phrase “subject to” refers to another instrument which does create a property interest, then there is no ambiguity. Star Island Assocs., 433 So.2d at 1002 (“The deeds do not refer to any prior instrument purporting to create such an easement, nor do the deeds identify the location of the easement”).

Here, the Amended Memorandum of Lease Agreement contains no ambiguities concerning Verizon’s easement and no indications that Mr. HarMess intended to reserve his right to receive rent. On the contrary, paragraph 5 of the Amended Memorandum indicates that the Lease’s terms “shall extend to and be binding upon the respective executors, administrators, heirs, successors and assigns of the Lessor and Lessee.” In other words, the Lease restates the default rule that the right to receive rent, like other real property rights, is presumptively transferred in a deed unless it is specifically reserved. See Gray, 197 So. at 399. Therefore, the “subject to” rule in Procacci pannot apply to the case before us.

To the extent that the Third District’s holding in Cook may stand for a different proposition, we disagree. 636 So.2d at 692. The deed in Cook stated that it was “subject to” a recorded ninety-nine-year lease, so there was no ambiguity as to whether the words “subject to” created a new right or reserved a preexisting right. The plaintiffs in Cook acquired rights to the deeded property eleven years after the execution of the lease, after it had already changed ownership many times. Id. at 592. The Cook court failed to analyze whether there was any ambiguity in the recorded deed. But in any event, the plaintiffs in Cook were aware of the existence of the lease and had been in possession of the subject property for six years before they ever sued for rent. Id. at 593. Moreover, none of the parties who owned the deeded land before the Cook plaintiffs ever challenged the original lessees’ reservation of rent. Id Based on those facts, the Cook plaintiffs were likely aware of some preexisting, nonintegrated agreement to reserve rent to the original lessees. Therefore, the holding of the Cook court was correct, but the reasoning was flawed.

Third, it would be imprudent to. extend the holding of Procacci to cases where a deed states that it is subject to a specific recorded instrument and that instrument does not add any ambiguity' to the face of the deed. The terms that Mr. Harkless and the Lollys agreed to in paragraph 18 of the Harkless-Lolly contract are not evident on the face of the. April 2011 Deed, the July 2011 Deed, or the Amended Memorandum of Lease Agreement. If we extended the holding of Procacci to mean that the words “subject to”. in the April 2011 and July 2011 Deeds render paragraph 18 of the Harkless-Lolly contract admissible as par-ol evidence, it follows that any deed containing the words “subject to” could be challenged as facially ambiguous, and may be supplemented by documents which are totally unrelated to whatever the deeds are “subject to.” Such a result would not square with supreme court precedent. See Gray, 197 So. .at 399 (holding that a deed which “contained no reservation of rents accruing thereafter ... amounted to relinquishment” of the original lessor’s rights to receive rent).

Therefore, we decline to adopt this line of argument. However, as we already explained above, we need not reach the issue of ambiguity to reverse the trial court’s summary judgment because the April 2011 Deed was not fully integrated with respect to Mr. -Harkless’s right to receive rent.

D. Application of Florida’s Recording Statute to the Right to Receive Rent

Having elucidated our limited ground for reversal, we must now analyze the impact that the subsequent Lolly-Lau-bhan transaction had on Mr. Harkless’s right to receive rent. Clearly, paragraph 18 of the Lolly-Laubhan contract does not contain the same language as paragraph 18 of the Harkless-Lolly contract. It is also clear that the July 2011 Deed, like the April 2011 Deed, is silent as to Mr. Hark-less’s reservation of his right to receive rent. Consequently, the Laubhans contend that they had no way of knowing the terms of the Harkless-Lolly contract and thus no way of knowing that the Lollys were not giving them the full bundle of rights associated with ownership of the Parcel. The Laubhans’ concerns are legitimate, but they do not warrant summary judgment. Rather, the trial court should have assessed whether genuine issues of material fact exist as to the Laubhans’ status as bona fide purchasers for value and without notice. See McCoy, 382 So.2d at 649.

The basis for the bona-fide-pur-chaser rule has been prescribed by the Florida Legislature. Neither party identifies, nor have we found, any case law holding that the right to receive rent is subject to Florida’s recording statute. However, the plain language of Florida’s recording statute states that “[n]o conveyance ... of real property, or of any interest therein ... shall be good and effectual in law or equity against ... subsequent purchasers for valuable consideration and without notice, unless the same be recorded according to law.” § 695.01(1), Fla. Stat. (2011) (emphasis added). The right to receive rent is an incorporeal hereditament—an intangible interest in real property. See Fla. Power Corp. v. McNeely, 125 So.2d 311, 315 (Fla. 2d DCA 1960) (quoting Restatement (First) of Property § 9 cmt. b (Am. Law Inst. 1936)); 52A C.J.S. Landlord & Tenant § 1078, Westlaw (database updated September 2016) (citing McBryde v. Lowe, 163 So.2d 896, 899 (Fla. 2d DCA 1964) (Shannon, J., dissenting)). Accordingly, the right to receive rent is covered by section 695.01(1).

The record reflects that genuine issues of material fact remain as to whether the Laubhans purchased the Parcel as bona fide purchasers for value without notice under Florida’s recording statute. The Lol-lys both testified that they told their realtor, Margaret Williamson, to inform the Laubhans that them property was subject to Mr. Harkless’s right to receive rent. Ms. Williamson, who was the realtor for both of the transactions involved in this case, testified that she informed the Lau-bhans that Mr. Harkless was “keeping the lease agreement.” The Laubhans testified that the conversation they had with Ms. Williamson was more ambiguous. Mr. Lau-bhan testified that he asked Ms. Williamson how Mr. Harkless could reserve his right to receive rent and the response he received from Ms. Williamson was, “I don’t know, I don’t do leases.” During her deposition, Ms. Williamson indicated that she did not know where or how Mr. Harkless reserved his right to receive rent—only that he had done so and that she was instructed to relay that message to the Laubhans. The Laubhans also indicated that they initially believed the cellular communications tower would never be built due to the expiration of a special zoning exception afforded by the DeSoto County Board of County Commissioners (BOCC) to Mr. Harkless. In the same vein, Mr. Harkless testified that the Laubhans had no problem with the state of affairs until construction on the tower actually began. During the hearing on the Lau-bhans’ motion for summary judgment, Mr. Harkless indicated that Mrs. Laubhan attended meetings of the BOCC and was well-informed about Mr. Harkless’s dealings with Verizon.

Such matters present unresolved factual issues that the finder of fact must resolve. Accordingly, summary judgment was not the appropriate vehicle by which to dispose of this case in the trial court.

III. CONCLUSION

We réverse the trial court’s grant of summary judgment to the Laubhans and remand for proceedings consistent with this opinion. Mr. Harkless reserved his right to receive rent in the Harkless-Lolly contract, which did not merge into any subsequent deed. Genuine issues of material fact remain as to whether the Laubhans were bona fide purchasers for value and without notice. Our reversal also extends to any relief the trial court afforded to the Laubhans on their counterclaim. We express no opinion on the merits of reformation as to one or both of the Deeds in this case.

, Reversed; remanded for further proceedings.

LaROSE, J., Concurs.

BLACK, J., Concurs in result only with opinion.

BLACK, Judge,

concurring with opinion.

In my opinion, the majority makes findings of fact and reaches conclusions of law that exceed the scope of our review of a final summary judgment inappropriately granted. I would reverse and remand for further proceedings, concluding only that the intent of the parties was an issue of material fact in dispute which precluded summary judgment. See Fiore v. Hilliker, 170 So.3d 147, 151 (Fla. 2d DCA 2015) (reversing summary judgment where the intent of the parties was a disputed material fact which was to be considered by the trier of fact below); Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995) (“[A] motion for summary judgment is not a •substitute for a trial on the merits. Hence, a trial court is precluded from resolving disputed issues of fact when considering such a motion. Thus, when a defendant moves for summary judgment, neither the trial court nor this . court determines whether the plaintiff can prove the cause of action alleged. The function of the court is solely to determine whether the appropriate record presented in support of summary judgment conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law.” (citation omitted)).

The trial court granted summary judgment in favor of the Laubhans but made no express findings of fact or conclusions of law. Upon' review of the hearing transcript and the arguments made, and in the absence of findings by the trial court, it appears that the only basis upon which the trial court could grant summary judgment in favor of the Laubhans was the determination that the deeds and Lease Agreement, the subjects of Mr. Harkless’s complaint, unambiguously did not reserve Mr. Harkless’s right to rent under the Lease—the argument raised by the Lau-bhans at the hearing. In opposition to the Laubhans’ motion and arguments, Mr. Harkless contended that the “subject to” language in the deeds rendered them ambiguous-and that in order to resolve that ambiguity, the trial court was required to consider the language of the Harkless-Lolly contract and the intent of the parties—extrinsic evidence. .

■ “[A] trial- court may not weigh the evidence or judge the credibility of witnesses in arriving at summary judgment; instead, the moving party must conclusively show the absence of any genuine issues of material fact.” Plantation Key Office Park, LLLP v. Pass Intern., Inc., 110 So.3d 505, 508 (Fla. 4th DCA 2013) (citing Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480-81 (Fla. 4th DCA 2006)). “A summary judgment motion will be- defeated if the evidence by affidavit or otherwise demonstrates the existence of a material factual issue.” Harvey Bldg., Inc, v. Haley, 175 So.2d 780, 782 (Fla. 1965).

■ Florida law holds that “[t]he words ‘subject to’ in a deed or contract generally create an ambiguous deed or contract.” Hastie v. Ekholm, 199 So.3d 461, 464 (Fla. 4th DCA 2016) (citing Procacci v. Zaceo, 324 So.2d 180, 182 (Fla. 4th DCA 1975)); see also Cook v. Tradewinds W. Condo., Inc., 636 So.2d 591, 592 (Fla. 3d DCA 1994). As applied in this case, if the trial court were inclined to accept the Lau-bhans’ argument that no material issues of fact were in dispute based on the- language of: the deed, Mr. Harkless sufficiently ■“demonstrate^] the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented” through the deposition testimony and evidence on record. See Harvey Bldg., 175 So,2d at 783. As a result, summary judgment • was inappropriate. See Mac-Gray Servs,, Inc, v. Savannah Assocs. of Sarasota,. LLC, 915 So.2d 657, 659-60 (Fla. 2d DCA 2005) (“[W]hen -an- agreement contains a latent ambiguity ... the issue of the correct interpretation of the agreement is an issue of fact which precludes summary judgment.”, (quoting Griffin v. Fed, Deposit Ins. Corp., 532 So.2d 1358; 1360 (Fla. 2d DCA 1988)). .

Because on the record before us there is no way to conclusively determine on what basis the trial court granted, summary judgment, I would apply the general rule that where a contract or writing is ambiguous, “the parties’ intent becomes a question of fact for the fact-finder, precluding summary judgment,” rather than the exception that “a contract may be interpreted as a matter of law when the ambiguity can be resolved by undisputed parol evidence of the parties’ intent.” Life Care Ponte Vedra, Inc. v. H.K. Wu, 162 So.3d 188, 191-92 (Fla. 5th DCA 2015); see also Centennial Mortg., Inc. v. SG/SC, Ltd., 772 So.2d 564, 566 (Fla. 1st DCA 2000) (“Contract interpretation is for the court as a matter of law, rather than the trier of fact, only when the agreement is totally unambiguous, or when any ambiguity may be resolved by applying the rules of construction to situations in which the parol evidence of the parties’ intentions is undisputed or non-existent.” (quoting Land O’Sun Realty Ltd. v. REWJB Gas Inv., 685 So.2d 870, 872 n.3 (Fla. 3d DCA 1996), review dismissed sub nom. Lennar Fla. Partners, I v. REWJB Gas Inv., 710 So.2d 978 (Fla. 1998))).

      . In the Harkless-Lolly contract, the Parcel appears to incorporate an additional fifteen square feet from its original size because of negotiations Mr. Harkless had with a third party interested in-purchasing his interest in the Parcel. .

      . Courts in other states have similarly found that the right to receive rent is contemplated by their recording statutes. See, e.g., Valley Nat'l Bank of Ariz. v. Avco Dev. Co., 14 Ariz. App. 56, 480 P.2d 671, 672-75 (1971); Winnisimmet Tr. v. Libby, 232 Mass. 491, 122 N.E. 575, 576 (1919); John McMenamy Inv. & Real Estate Co. v. Dawley, 183 Mo.App. 1, 165 S.W. 829, 830 (1914); First & Citizens Nat'l Bank of Elizabeth City v. Sawyer, 218 N.C. 142, 10 S.E.2d 656, 657 (1940); Schmid v. Baum's Home of Flowers, Inc., 162 Tenn. 439, 37 S.W.2d 105, 109 (1931).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jessy J. BURROWS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3478
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 3, 2017

      Jessy J. Burrows, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jessy J. Burrows appeals his concurrent twenty-five-year sentences for his numerous non-homicide offenses committed when he was seventeen years old. The State properly concedes that Burrows is entitled to resentencing. See Kelsey v. State, 206 So.3d 5, 8 (Fla. 2016) (“[A]U juvenile offenders whose sentences meet, the standard defined by the Legislature in chapter 2014-220, a sentence longer than twenty years, are entitled to judicial, review.”). Therefore, we reverse Burrows’s sentences and remand for resentencing under chapter 2014-220, Laws of Florida.

REVERSED and REMANDED for Re-sentencing.

SAWAYA, WALLIS and LAMBERT, JJ., concur.


author: MORRIS, Judge. WALLACE, Judge,

text:
    Fredrick LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D13-4502
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017
    Rehearing Denied May 19, 2017

      Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Fredrick Livingston appeals his conviction after a jury trial for the offense of robbery, raising several issues that we have determined to be without merit. We affirm his conviction and sentence, but we write to address the trial court’s admission into evidence of two out-of-court descriptions of the suspect received by deputies on the night of the offense.

At trial, the State presented the testimony of three witnesses: the victim and two sheriffs deputies. The victim first testified that at approximately 7:20 in the evening on December 21, 2012, he was walking to catch the bus to work in the Progress Village area of Hillsborough County. The victim testified that a group of five men began to follow him. He crossed over Aliar manda Boulevard, and the men continued to follow him. Two men cut in front of him, and the other men surrounded him. One man began to ask him questions regarding his name and where he lived. The victim was very scared and nervous, but he got a good look at the man who was asking the questions because they were under a lamp post and that man was the one speaking to him. The victim described the man as African-American, with short, shoulder length dreads, between the ages of twenty and thirty, approximately 5’8‘ tall, and weighing between 140 and 150 pounds. The man wore a black jacket with two white stripes down his chest, a white undershirt, and dark jeans. The victim said that the man spoke to him for what “felt like two or three minutes.” Then, the man punched the victim with a closed fist in the victim’s jaw and upper lip, and another man pushed the victim from behind. They repeatedly hit the victim, and he felt them grab his phone and other items from his pockets. In court, the victim identified Livingston as the man who first hit him. After a few seconds, the men ran away down Allamanda. The victim rushed home and called 911 from his mother’s cell phone.

After law enforcement responded, the victim was driven to where Livingston had been found. Livingston was standing underneath a light post. The victim testified that he was 100% sure that Livingston was the person who hit him and that he had no doubt in his mind. The victim stated that in the bright lighting of the courtroom, he could tell that Livingston had a dark mark on his face, but the victim explained that he did not see that mark on the night of the offense because it was darker that night.

During cross-examination, the victim admitted that he was dizzy after he was hit in the head numerous times and that he had a mini-panic attack that night. The victim did not remember seeing a tattoo or scar on the suspect’s face, and the victim did not remember that the suspect had a mustache, a beard, a goatee, or peach fuzz on his face. The victim admitted that Livingston’s tattoo was visible in the photograph taken on the night of his arrest, but the victim said that the flash on the camera lightened it up and that he could barely see the tattoo in the photograph. He also stated that the stripes on the jacket may have been gray but they appeared white to him that night.

Deputy Jonathan Rosa testified that he responded to the victim’s 911 call that night. He interviewed the victim, who was shaken up and was “still under the stres-sor of being robbed.” Deputy Rosa was able to obtain a description of the assailant. The following occurred during Deputy Rosa’s direct examination:

Q. And was [the victim] able to give you a description of the person he believed committed this robbery?
A. Yes. He actually gave a very detailed description.
Q. What did he—what did he describe for you.
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Overruled.
DEPUTY ROSA: He described a black male with short dreads, just above the shoulder, five-eight, about 145 pounds, between 27 and 29 years old, with a black jacket with a hoodie. It was black and white and when- he said white, he motioned that it was like towards the inside of the jacket, with long blue jeans.

The victim told Deputy Rosa that the following items were taken from him: a Verizon cell phone, a velcro wallet containing two Spoto High School IDs, a Visa debit card, and $6 in cash. Deputy Keron Lucius arrived, and the victim went with Deputy Lucius to search the neighborhood. Approximately three minutes later, Deputy Lucius informed Deputy Rosa that the victim had identified Livingston as the assailant.

Deputy Rosa responded to where they had found Livingston, and Deputy Rosa noticed that Livingston’s height was 5’8‘, that he weighed approximately 150 pounds, that he wore a black hooded jacket with a white interior, and that he wore long blue jeans. He was a black male around twenty-eight years old. Deputy Rosa did not notice a tattoo on Livingston’s face until he saw it in the photograph. He also thought that Livingston’s undershirt was white until he noticed in the photograph that it looked gray.

On cross-examination, Deputy Rosa stated that the victim had reported that only three men were involved in the incident and that he never mentioned five or six. Deputy Rosa acknowledged that Livingston’s jacket did not have any white on it, only light gray. He admitted that a cross tattoo on. a person’s face would normally stand out as unusual. He also stated that the victim never described the assailant as having a beard, a mustache, or a scar. None of the victim’s items were found on Livingston when he was arrested. And there were approximately twenty to thirty people walking around where Livingston was arrested, but none were wearing the same clothes as Livingston.

On redirect examination, Deputy Rosa testified that nobody else matched the description given to him by the victim. The State-then asked Deputy Rosa if Livingston matched the description “slightly or matched the description to a ‘T,’” and Deputy Rosa responded that “it’s a spot on of a description as you’ll ever get in a career.” The defense objected to the answer as being unresponsive and irrelevant, and the trial court overruled the objection. Then the State asked if Deputy Rosa had “ever had a description that detailed,” the defense objected, and the trial court sustained the objection, .

The second deputy, Deputy Lucius, was asked by the State what type of information he received in the BOLO. The defense objected on the basis of hearsay, but the trial court overruled the objection. The State then asked Deputy Lucius what specific information was relayed to him in the BOLO, and Deputy Lucius responded that he received information of “[a] black male wearing a[ ] black and white hooded jacket” with “dreadlocks” in his “mid-twenties.” Deputy Lucius responded to the the victim’s home, and the victim gave him the same description of the assailant. Deputy Lucius drove around with the victim, and within approximately three minutes, the victim identified Livingston as being the assailant. The victim said, “[tjhat’s the person, he’s 100% sure.” Deputy Lucius did not initially notice a tattoo on Livingston’s face.

Qn cross-examination, Deputy Lucius stated that in that neighborhood, it was not unusual to see black males in their twenties with dreads wearing black hood-ies and blue jeans. There was high foot traffic that night in Progress Village. When the victim spotted Livingston, the victim offered that he was 100% sure, without being asked if he was sure. Deputy Lucius said that the victim initially reported that there were “three guys total,”

The State also introduced photographs of the defendant and the victim’s injuries taken on the night of the offense.

The jury found Livingston guilty- as charged. The defense filed a motion for new trial, arguing that the State was . improperly allowed, over objection, to elicit hearsay .testimony regarding the victim’s description of the man who punched him in the mouth and that the error was compounded by the cumulative nature of the testimony and the State’s reference to it during closing arguments. The trial court denied the motion by written order, finding that “[wjhile the victim’s description of his assailant is not an ‘identification’ under Florida Statute - 90.801(2)(c)[,] ... it was admissible as an excited utterance.” The trial court later sentenced Livingston -to fifteen years in prison as a prison releasee reoffender,

On appeal, Livingston argues that it was error for the trial court to deny his motion for new trial because Deputy Rosa and Deputy Lucius were permitted to testify regarding descriptions of the suspect they had received on the night of the offehse. Testimony concerning a victim’s or a witness’s out-of-court description of an assailant is classic hearsay and is generally not admissible into evidence unless it falls under a hearsay exception. See Puryear v. State, 810 So.2d 901, 906 (Fla. 2002) (holding that testimony by two witnesses regarding the victim’s out-of-court description of the assailant was not admissible as statements of identification under section 90.801(2)(c), Florida Statutes (1999), because a description is not an identification); Swafford v. State, 538 So.2d 270, 276 (Fla. 1988) (holding that trial court properly excluded as hearsay police bulletin that contained victim’s description- of assailant); English v. State, 43 So.3d 871, 872-73 (Fla. 5th DCA 2010) (holding that the trial court erred by admitting deputy’s description of the suspect that was sent out in BOLO); Hendrieth v. State, 483 So.2d 768, 769 (Fla. 1st DCA 1986) (holding that trial court erred- in allowing police officer to testify regarding the victim’s description of the perpetrators because such testimony did not fall -within any hearsay exception). Thus, it is. clear that both Deputy Rosa’s description of the suspect as given to him by the victim and Deputy Lucius’s description of the suspect as relayed in the BOLO generally constituted hearsay.

But we cannot say that the trial court erred in admitting the evidence on this basis because in its order denying Livingston’s motion for new trial, the trial court agreed that the victim’s description of his assailant was not admissible under the “identification” exception to hearsay, citing Pnrjyear, 810 So.2d 901. The trial court went on to conclude that the victim’s description was admissible as an excited utterance. Even though neither party argued the issue of excited utterance to the trial court, the trial court was free to “base [its] evidentiary ruling on an alternate basis that was not suggested by the parties.” Williams v. State, 967 So.2d 735, 750 (Fla. 2007). On appeal, Livingston challenges the admission of the evidence as “identification” testimony under Puryear, but he does not argue that the specific ruling on excited utterance was erroneous. It is axiom'atic that the appellant “bears the burden of demonstrating that an error occurred in the trial court.” Goodwin v. State, 751 So.2d 537, 544 (Fla. 1999); see also Stone v. Stone, 873 So.2d 628, 630 (Fla. 2d DCA 2004) (“The burden of proof on appeal lies with the appellant to demonstrate that the trial court erred.”); D’Agostino v. State, 334 So.2d 99, 99 (Fla. 3d DCA 1976) (“An appellant, on an appeal in a criminal case, has the burden of showing that the trial proceedings were so infected with prejudicial error as to compel a reversal of the judgment. Such error must be clearly demonstrated by the appellant.”). By failing to challenge the admission of the evidence as an excited utterance, Livingston has failed to satisfy his burden on appeal of demonstrating that the trial court erred in its ruling,,and we affirm for this reason.

However, even if Livingston-had challenged, on appeal the excited utterance ruling, we are not convinced that the trial court reversibly erred in admitting the victim’s description of the suspect to Deputy Rosa as an excited utterance. An excited utterance is “[a] statement or excited utterance relating to -a startling event or condition made while the declarant was under- the stress of excitement, caused by the event or condition.” § 90.803(2), Fla. Stat. (2012).

[I]n order for an excited utterance to be admissible, the following requirements must be met: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to. contrive ,or misrepresent; arid (3) the statement must have been made while the person vras under the stress of excitement caused.by the startling event.

Stoll v. State, 762 So.2d 870, 873 (Fla. 2000). “[T]he party seeking to qualify a statement as an excited utterance must lay a proper foundation for its admission.” Thomas v. State, 125 So.3d 928, 930 (Fla. 4th DCA 2013) (citing Mariano v. State, 933 So.2d 111, 115 (Fla. 4th DCA 2006)). The foundation may be laid by testimony establishing all three requirements. See id.

Here, by ruling that the evidence constituted an excited utterance, the trial court implicitly found that the State had laid the necessary foundation, and the record supports that implicit finding. The victim testified that it took him two or three minutes to get home after the robbery. He immediately called 911. During cross-examination, the victim admitted that when the incident was going on,'he felt like he was having a panic attack and that the EMTs suggested that he go to the hospital. Deputy Rosa testified that whén he arrived at the victim’s house, the victim was “still shaken up from the incident.” Deputy Rosa agreed that the victim “was still under the stres-sor of being robbed.” Accordingly, had the issue been properly raised on appeal, we could not say that the trial court abused its discretion in denying Livingston’s motion for new trial and in ruling that the victim’s description to Deputy Rosa constituted an excited utterance. See Stephens v. State, 787 So.2d 747, 754 (Fla. 2001) (“A trial court’s denial of a motion for new trial is reviewed under an abuse of discretion standard.”); Power v. State, 605 So.2d 856, 862 (Fla. 1992) (agreeing with the State that two hearsay statements made to a députy by a witness “were probably admissible under the ‘excited utterance’ exception to the hearsay rule” because the deputy “testified that when [the witness] flagged him down, ‘[h]e appeared to be a person that had just witnessed an unusual or serious crime, and very shaken’ ”) (second alteration in original); see also Puryear, 810 So.2d at 904 (clarifying that the Power holding rested on the excited utterance hearsay exception).

The same could not be said for Deputy Lucius’s testimony regarding the description he received in the BOLO because that information constituted double hearsay. See Henderson v. State, 135 So.3d 472, 476 (Fla. 2d DCA 2014) (“[E]ach hearsay statement must fall under an exception for [double hearsay] statements to be admissible.” (alterations in original) (quoting Gosciminski v. State, 994 So.2d 1018, 1026 (Fla. 2008))). But a close examination of the evidence would lead to the conclusion that any error in the admission of Deputy Lucius’s limited testimony regarding the BOLO description was harmless. The victim gave a detailed in-court description of the person who robbed him, and the victim identified Livingston in court as that person with 100% certainty. The victim’s detailed description of the suspect to Deputy Rosa immediately after the offense, which was properly admitted as an excited utterance, supported the victim’s testimony. The evidence also showed that when he was arrested, Livingston matched the victim’s description of the suspect and that the victim identified Livingston with 100% certainty that night. Accordingly, even if the correct issue had been presented on appeal and this court were to determine that Deputy Lucius’s testimony was improperly admitted, it would follow that there was no reasonable possibility that Deputy Lucius’s limited BOLO testimony contributed to the verdict. See Ventura v. State, 29 So.3d 1086, 1090-91 (Fla. 2010) (reiterating the harmless error test set forth in State v. DiGuilio, 491 So.2d 1129 (Fla. 1986)).

Affirmed.

BLACK, J., Concurs.

WALLACE, J., Concurs with opinion.

WALLACE, Judge,

concurring.

I concur in the affirmance of Livingston’s judgment and sentence for robbery. However, I reach this result by a different path from the one taken by my colleagues in the majority. I agree with the majority that the issues raised by Livingston that the majority does not discuss are without merit. But I disagree with the majority’s analysis about the propriety of using the excited utterance exception to the hearsay rule as a basis for affirming Livingston’s conviction. I also disagree with the majority’s analysis of the question of harmless error,

As the majority notes, the trial court conceded in its order denying the motion for new trial that the evidence regarding the victim’s identification of his assailant was not properly admissible in evidence. Nevertheless, the trial court went on to deny the motion for new trial on a new theory that the challenged evidence could have been properly admitted at trial under the excited utterance exception to the hearsay rule. For the reasons I will explain below, I think that this latter ruling was erroneous.

At trial, -the State did not assert the excited utterance exception as a basis for the admission of the challenged testimony. Thus, the trial court did not conduct a hearing or make the required predicate findings before admitting the evidence. See § 90.105(1), Fla. Stat. (2013); Morrison v. State, 161 So.3d 564, 565 (Fla. 2d DCA 2014); Tucker v. State, 884 So.2d 168, 173 (Fla. 2d DCA 2004); Mariano v. State, 933 So.2d 111, 115-16 (Fla. 4th DCA 2006). Indeed, the testimony was not admitted as an excited utterance. The first mention of this alternative legal theory for the admission of the evidence was in the trial court’s order denying the motion for new trial. Thus, Livingston never had an opportunity to address the admissibility of the evidence under the excited utterance exception to the hearsay rule in the context of the trial.

In the order denying Livingston’s motion for new trial, the trial court effectively applied a version of the “tipsy coachman” doctrine to its own evidentiary rulings at trial as a basis for denying the motion. My colleagues in the majority approve the trial court’s unique application of a right-for-the-wrong-reason analysis in the order denying a new trial as a basis for salvaging the trial court’s erroneous evidentiary rulings made during the trial. “[T]he ‘tipsy coachman’ doctrine ... permits a reviewing court to affirm a decision from a lower tribunal that reaches the right result for the wrong reasons so long as ‘there is any basis which would support the judgment in the record.’ ” State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363, 365 (Fla. 2002) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla. 1999)). But “the key to applying the tipsy coachman doctrine is that the record before the trial court must support the alternative theory or principle of law.” Id. (emphasis added) (citing Robertson v. State, 829 So.2d 901, 906 (Fla. 2002)).

In this case, the trial court’s reliance on the excited utterance exception in the order denying the motion for new trial was inappropriate because.the State never asserted that exception to the hearsay rule at trial as a basis for the admission of the challenged evidence. Thus, the trial court failed to conduct the necessary hearing or to make the required predicate findings before admitting the evidence. The majority asserts that “[h]ere, by ruling .that the evidence constituted an excited utterance, the trial court implicitly found that the State had laid the necessary foundation, and the record supports that implicit finding.” They then proceed to. summarize the evidence on this point, supplying the miss-mg findings from their own reading of the record.

In my view, the majority’s fact-finding exercise on this’ subject is beyond the proper scope of this court’s review of Livingston’s judgment and sentence. Section 90.105(1) “imposes the responsibility of determining preliminary questions as to the admissibility of evidence upon the trial judge.” Saavedra v. State, 421 So.2d 725, 727 (Fla. 4th DCA 1982). This court’s function is not to make its own findings of fact regarding whether the' State has laid a predicate at trial for the admission of certain evidence. Nor may we reweigh the evidence. Instead, we are to review the record for the purpose of determining whether the findings of fact made by the trial court are supported" by competent evidence. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976); Fla. Detroit Diesel v. Nathai, 28 So.3d 182, 185 (Fla. 1st DCA 2010) (quoting Shaw, 334 So.2d at 16). Here, the trial court was never called upon at trial to make the critical findings of fact concerning whether the challenged evidence was admissible as an excited utterance, and there is nothing for this court to review. This court cannot cure the trial court’s omission to make the required predicate findings—as the majority has done—by culling the record and supplying the missing findings. ■

The trial court’s posttrial application of a right-for-the-wrong-reason analysis to its own ruling made during the course of the trial is inappropriate in this case because the State never asserted the excited utterance exception to the hearsay rule at trial as a basis for the admission of the challenged testimony. The State’s failure to make this argument at trial had two results critical to a correct analysis. First, the trial court failed to conduct the required hearing or to make the predicate findings before admitting the evidence. Second, Livingston never had an opportunity to be heard on the question of whether the evidence in question was properly admissible as an excited utterance. Thus, there is no basis in the record for approving the admission of the evidence as an excited utterance. It follows that a right-for-the-wrong-reason analysis cannot' be made, and the admission of the evidence constituted error. Cf. Robertson, 829 So.2d at 906-11 (an appellate court’s consideration of the propriety of using the “tipsy coachman” doctrine to affirm a trial court ruling); May v. HCA Health Servs. of Fla., Inc., 166 So.3d 850, 854 (Fla. 2d DCA 2015) (same); Fitzsimmons v. State, 935 So.2d 125, 128 (Fla. 2d DCA 2006) (same); State v. Lena, 819 So.2d 919, 921 (Fla. 3d DCA 2002) (same). For these reasons, I conclude that the excited utterance exception to the hearsay rule does not constitute a valid basis for the denial of Livingston’s motion for new trial or for the affirmance of the judgment and sentence.

In support of the trial court’s reliance on the excited utterance exception in the order denying Livingston’s motion for new trial, the majority quotes from Williams v. State, 967 So.2d 735, 750 (Fla. 2007), for the proposition that “the trial court was free to ‘base [its] evidentiary ruling on an alternate basis that was not suggested by the parties.’ ” This proposition from Williams is not contrary to the analysis that I make here. The supreme court made the quoted statement about an evi-dentiary ruling that the trial court' in that case made during the course of a trial, not—as in this case—in a posttrial ruling. The difference in the timing of the eviden-tiary ruling is critical. With regard to an evidentiary ruling made during the course of a trial, the parties, have an opportunity to present evidence on the preliminary questions pertinent to the admissibility of the evidence in question. Moreover, the parties have an opportunity to be heard and make appropriate submissions on the admissibility of evidence on any alternate basis proposed by the trial court before the evidence is received. Neither of these opportunities are available where, as in this case, a trial court makes a posttrial evidentiary ruling on its own initiative on a basis not suggested by either of the parties.

In this case, unlike in Williams, the trial court' made its evidentiary ruling on an alternate basis not suggested by either of the parties after the trial when the procedural safeguards in play during the trial were not available to Livingston. It follows that the proposition stated in Williams does not support the trial court’s posttrial ruling denying Livingston’s motion for new trial.

Nevertheless, Livingston’s appellate counsel has not addressed the propriety of the trial court’s ruling on the excited utterance issue in the order denying the motion for new trial. Therefore, as the majority correctly observes, the point has ’been waived. See City of Miami v. Steckloff, 111 So.2d 446, 447-48 (Fla. 1959); Kenyon v. Kenyon, 496 So.2d 839, 840 (Fla. 2d DCA 1986); Anheuser-Busch Cos., Inc. v. Staples, 125 So.3d 309, 312 (Fla. 1st DCA 2013); Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). Indeed, both parties have either overlooked or intentionally ignored the trial court’s ruling on the excited utterance exception in the order denying the motion for new trial. It is surprising—to say the least—that the State did not argue the trial court’s ruling on the excited utterance issue in its answer brief as a basis for affirmance. My colleagues in the majority have developed this ground for affirmance independently.

I turn now to the question of harmless error. The facts of this case were simple— a strong-arm robbery followed by the prompt apprehension and arrest of a suspect. Notably, Livingston was apprehended within a few minutes of the commission of the offense, but he did not have in his possession any of the proceeds of the robbery upon his arrest. Thus the State did not have the benefit of the presumption of Livingston’s guilt of the robbery that would otherwise have arisen from his unexplained possession of the victim’s recently stolen property. Cf. T.S.R. v. State, 696 So.2d 766, 767 (Fla. 5th DCA 1992) (stating that the unexplained possession of recently stolen property is sufficient to support a conviction for theft). It follows that Livingston had a viable defense to the robbery charge based oh a claim of mistaken identification.

At trial, the State used the challenged identification testimony to bolster its case against Livingston. Indeed, this testimony became a feature of the trial. For example, the prosecutor asked Deputy Rosa, “And would you say [Livingston] matched that description [given by the victim] slightly or matched the description to a ‘T’ ”? Deputy Rosa responded, “It’s a spot on of a description as you’ll ever get in a career.” In closing argument, the prosecutor repeatedly emphasized the dose correspondence of the description given by the victim of his assailant to Livingston’s physical characteristics and clothing as proof of Livingston’s guilt. In light of these factors, I cannot conclude that there is no reasonable possibility that the error in admitting the challenged testimony contributed to Livingston’s convictions. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986).

Despite my conclusions about the evi-dentiary matters and the question of harmless error, the issue of using the excited utterance exception to deny Livingston a new trial has been waived. Therefore, I must join the majority in voting to affirm Livingston’s judgment and sentence.

      . “Be on the lookout.”

      . By observing that thp trial court did not err in its excited utterance ruling, we are not invoking the tipsy coachman doctrine. That doctrine allows an appellate court to affirm a lower court decision when the lower court has reached the right result for the wrong reason. State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363, 365 (Fla. 2002). Rather, we are saying that the trial court reached the right result for the right reason.

      . On a separate point not addressed by the majority, I observe that Livingston's appellate counsel has framed her argument on the admissibility of the evidence concerning the victim’s description of his assailant and another issue as a challenge to the trial court’s order denying Livingston’s motion for new trial. Although the matter seems to be well settled, it may be worth noting that a defendant in a criminal case may not appeal from an order denying a motion for new trial. The appeal is from the judgment and sentence. See Fla. R. App. P. 9.140(b); Griffith v. Stale, 171 So.2d 597, 598 (Fla. 3d DCA 1965); see also State v. Smith, 201 So.2d 828, 830 (Fla. 2d DCA 1967) (quoting Griffith with approval).

      . The State did not file a response to Livingston’s motion for new trial. At the hearing on the motion, the State did not raise the excited utterance exception as a basis for denying the motion for new trial.


author: SALARIO, Judge.

text:
    AGM INVESTORS, LLC, Appellant, v. BUSINESS LAW GROUP, P.A., a Florida Corporation, Bruce M. Rodgers, Michael H. Casanover, Brandon R. Burg, and LM Funding, LLC, a Florida limited liability company, Appellees.
    Case No. 2D14-4704
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017
    Rehearing Denied May 19, 2017

      Adam J. Knight and Laura L. Whiteside of Hicks %CO Knight, P.A., Tampa, for Appellant.
    Jacob A. Brainard and Scott C. Davis of Business Law Group, P.A., Tampa, for Ap-pellees Business Law Group, Bruce M. Rodgers, Michael H. Casanover, and Brandon R. Burg.
    No appearance for remaining Appellee.
   SALARIO, Judge.

AGM Investors, LLC, appeals from a final summary judgment in favor of Business Law Group, P.A. and its associated lawyers Bruce M. Rodgers, Michael H. Casanover, and Brandon R. Burg (collectively, Business Law Group) on AGM’s third-party claims against them for abuse of process and related torts. The claims arise from Business Law Group’s unfounded filing of multiple claims of lien on behalf of a condominium association based on a single debt arising from unpaid assessments that AGM, as a subsequent tax deed purchaser, never owed. The trial court determined that the filing of each claim of lien was subject to the absolute privilege against such actions that is afforded when they are made by counsel in connection within a judicial proceeding. As we explain, the unusual facts of this case and limited summary judgment record leave material factual disputes bearing on whether the filing of two of those claims of lien can be regarded as necessarily preliminary to judicial proceedings so as to-be covered by the absolute privilege. We reverse.

. I.

This case involves Business Law Group’s efforts to collect unpaid condominium association assessments on behalf of Glendale Villas Condominium Association. In 2008, the association hired LM Funding, LLC to collect unpaid assessments and enforce the association’s statutory liens securing each unit owner’s payment of those assessments. See § 718.116(5)(a), Fla. Stat. (2008) (“The association has a lien on each condominium parcel to secure the payment of assessments.”). The association’s agreement with LM Funding authorized LM Funding to hire Business Law Group to represent the association in the collection and lien enforcement efforts the agreement contemplated.

A company named LL 194 Investors owned a unit in Glendale Villas and failed to pay the assessments for that unit from 2006 onward. In June 2009, Business Law Group, on. behalf of the association, recorded a claim of lien for the unpaid assessments in the official records of Pasco County, Florida. LL 194 Investors continued failing to pay its assessments. It appears, however, that Business Law Group took no further action to enforce the association’s lien against LL 194 Investors.

At the same timé it was failing to pay its assessments, LL 194 Investors was also failing to pay its real estate taxes. As a result, its unit was sold at a public auction at which AGM was the highest bidder. See § 197.542, Fla. Stat. (2009). AGM thereafter took title to the unit by way of a tax deed dated April 22, 2010. Pursuant to sections 197.552 and 197.573(2), the association’s lien for assessments that were unpaid on the date of the tax deed was extinguished by the' issuance of the tax deed. Thus, the association had no further basis for a lien on the unit based on the assessments- that LL 194 Investors had failed to pay before the tax deed sale.

Although the association had no further right to collect LL 194 Investors’ unpaid assessments, Business Law Group wrote to AGM a few days after.the tax deed,was. issued demanding that AGM pay them and notifying AGM of its intent to record, a claim of lien against the unit. AGM responded by notifying Business Law Group that it had purchased the unit at a tax deed sale and that the association’s lien was therefore extinguished, and it enclosed a copy of the tax deed conveying title to the unit.

Then, on June 9, 2010, Business Law Group recorded a second claim of lien on behalf of the association. Like the first claim of lien, the second was based solely on LL 194 Investors’ nonpayment of assessments that predated, and were extinguished by, the tax deed. AGM responded with a notice of contest of the association’s purported lien, which required that the association commence a judicial action to enforce the lien within ninety days. See § 718.116(5)(c), Fla. Stat. (2009). The association’s subsequent failure to commence judicial action within that ninety-day period rendered the lien void. Id.

In addition to its notice of contest on the second claim of lien, AGM filed a quiet title action against the association to clear the cloud on its title created by the association’s first claim of lien based on LL 194 Investors’, unpaid assessments. The association was represented by Business Law Group in the action. The association consented to the entry of a judgment providing that AGM’s title was quieted against the association’s purported lien. That judgment was entered on April 20, 2011.

Despite the judgment in the quiet title action, on May 31, 2011, Business Law Group recorded a third claim. of lien on behalf of the association based on LL 194 Investors’ unpaid assessments predating the tax deed. Two months later, it commenced the- underlying action in this case by filing a complaint to foreclose the association’s lien. AGM served an answer coupled with counterclaims against the association and third-party claims against LM Funding and Business Law Group. The claims against Business Law Group were for abuse of process, malicious prosecution, and slander of title for its-filing of multiple claims of lien based on an assessment lien that had been extinguished by the tax deed, by the association’s failure to file suit within ninety days of AGM’s notice of contest on the second claim of lien, and by the final judgment in the quiet title action.

Business Law Group sought to withdraw as the association’s counsel, alleging that AGM’s assertion of” third-party claims against it created a potential conflict of interest with the association. The trial court granted that motion on March 28, 2012, and new counsel appeared for the association at some point thereafter. Two months later, however, Business Law Group recorded a fourth claim of lien on the association’s behalf based on unpaid assessments predating the tax deed,

On April 16, 2013, the trial court entered a .final partial summary judgment in AGM’s favor on the association’s lien foreclosure complaint, in which it found, as a matter of law, that the association’s lien was vitiated by the tax deed and by the association’s failure to sue within ninety days of AGM’s notice of contest of the second claim of. lien. The association, through its new counsel, appealed that judgment to this court. Shortly thereafter, Business Law Group recorded a fifth and final claim of lien against AGM on behalf of the association. Like the four claims of lien preceding it, this one, too, was based on unpaid assessments pending at the time that the tax deed was issued.

AGM thereafter amended its remaining third-party claims against'Business Law Group to cover the fourth and fifth claims of lien and to add a count for injurious falsehood. Business Law Group filed a motion for summary judgment on all of AGM’s tort claims against it. It argued that its preparation and filing of each of the five claims of lien was subject to the absolute privilege applicable to conduct in connection with judicial proceedings— known as the litigation 'privilege or the judicial proceedings privilege. See generally Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 383 (Fla. 2007) (discussing the “litigation privilege”); Fridovich v. Fridovich, 598 So.2d 65, 68 (Fla. 1992) (discussing the “judicial proceedings privilege”). The motion alleged that the litigation privilege applied to all five claims of lien as a matter of law without making any distinction among each of the five lien filings. The summary judgment record consisted of the tax deed, the lien documents, and the court records described above.

The trial court granted summary judgment in favor of Business Law Group as to all the third-party claims, reasoning that the filing of each of the claims of lien was necessarily preliminary to the enforcement of the association’s lien for unpaid assessments in a judicial' proceeding and, as a result, that the absolute litigation privilege barred AGM’s claims as a matter of law. AGM sought rehéaring of that decision solely as it pertained to the fourth and fifth' claims, of lien—those filed both after the commencement of this action in the trial court and after the substitution of new counsel for the association in the case—which was denied. The trial court entered a final judgment in favor of Business Law Group, from which AGM timely appeals.

n.

We review a trial court’s decision to grant summary judgment de novo. Green v. APAC-Fla., Inc., 935 So.2d 1231, 1233 (Fla. 2d DCA 2006). Because AGM has limited its appeal to the trial court’s entry of summary judgment as it concerns the. fourth and fifth claims of lien, it has not challenged the determination that the privilege applies to the first three claims of lien. The question for our resolution, then, is whether there is any genuine issue of material fact related to the application of litigation privilege to. Business Law Group’s conduct in filing the last two claims of lien.

The absolute privilege applicable to conduct in connection with judicial pro-eeedings dates back to the common law of England. See DelMonico v. Traynor, 116 So.3d 1205, 1211-12 (Fla. 2013) (citing Simpson Strong-Tie Co. v. Stewart, Estes, & Donnell, 232 S.W.3d 18, 22 (Tenn. 2007)). Although originally recognized as a defense to a claim for defamation founded on statements made in the course of judicial proceedings, the privilege in Florida has been extended to any tort or statutory cause of action based on false statements or other wrongful conduct. Echevarria, 950 So.2d at 380-81 (“[T]he litigation privilege applies in all causes of action, statutory as well as common law.”); see also Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire. Ins. Co., 639 So.2d 606, 608 (Fla. 1994) (“[Absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ....”). The privilege reflects a policy judgment that in most cases “participants in litigation must be free to engage in unhindered communication” and “to use their best judgment in prosecuting or defending a lawsuit” without fear of civil liability notwithstanding the potential harm to an individual on the receiving end of a defamatory statement or other bad act. Levin, 639 So.2d at 608; see also DelMonico, 116 So.3d at 1217 (explaining that the privilege derives from balancing the public interest in a free and adversarial system against the private interests of individuals in being free from harm).

The general rule concerning the litigation privilege is that litigation participants should be absolutely exempted from liability for conduct “in the course of judicial proceedings” so long as the conduct has “some relation to or connection with the subject of inquiry.” DelMonico, 116 So.3d at 1211. Florida courts have applied the privilege not only to conduct undertaken while litigation is ongoing but also to conduct that is “necessarily preliminary” to judicial proceedings. Fridovich, 598 So.2d at 66 (quoting Ange v. State, 98 Fla. 538, 123 So. 916, 917 (1929), for the proposition that the absolute privilege “arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto” (emphasis omitted)); Fischer v. Debrincat, 169 So.3d 1204, 1206 (Fla. 4th DCA 2015) (quoting Ange for same proposition), approved, No. SC15-1477, 217 So.3d 68, 2017 WL 526508 (Fla. Feb. 9, 2017). Requiring that conduct preceding the institution of litigation be necessarily preliminary to judicial proceedings ensures that such conduct actually falls within the scope of the absolute litigation privilege. That is, the necessarily preliminary standard ensures that the conduct shielded from liability is really of a kind that can be regarded as having been undertaken in the course of a judicial proceeding and not conduct undertaken separately from it. See Ball v. D’Lites Enters., 65 So.3d 637, 641 (Fla. 4th DCA 2011) (describing conduct as necessarily preliminary to judicial proceedings where it was a prerequisite to the judicial process); see also Echevarria, 950 So.2d at 387 (Wells, J., concurring in part and dissenting in part) (explaining that the correspondence for defaulting borrowers was not necessarily preliminary to later foreclosure litigation where it was not “legally necessary” to prosecute foreclosures).

The trial court determined that Business Law Group’s conduct in filing all five claims of lien was necessarily preliminary, as a matter of law, to judicial proceedings to enforce the association’s lien for unpaid assessments. The problem with this from a summary judgment standpoint is that the filing of each individual claim of lien occurred at different points with respect to pending and possible future judicial proceedings and cannot be considered one blanket act for the purposes of determining whether the litigation privilege applies. The first three claims of lien were filed during the course of Business Law Group’s representation of the association in its anticipated lien collection efforts in examples of what we suspect is the more typical circumstance in which a claim of lien is filed and the lien is then litigated. The association’s recording of a claim of lien is legally necessary to its institution of judicial foreclosure proceedings to enforce that lien. See § 718.116(5)(b), (5)(c), (6)(b), Fla. Stat. (2010). It is, in essence, the first step in invoking the judicial machinery of a lien foreclosure action. Conduct of this type is quite plainly necessarily preliminary to the commencement of a judicial proceeding. See, e.g., Stewart v. Sun Sentinel Co., 695 So.2d 360, 362 (Fla. 4th DCA 1997) (holding that absolute privilege applied to a notice of claim required by statute to be served prior to litigation); see also Donohoe Constr. Co. v. Mt. Vernon Assocs., 235 Va. 531, 369 S.E.2d 857, 861 (1988) (holding that absolute privilege protected filing of mechanic’s lien because “it is a prerequisite to a suit to enforce”).

Here, however, the limited summary judgment record raises material fact issues about whether the fourth and fifth claims of lien were also necessarily preliminary to any lien foreclosure proceedings. To begin with, at the time the fourth and fifth claims of lien were filed, lien foreclosure proceedings by the association based on the filing of the third claim of hen were already ongoing. Filing the third claim of lien was the only necessary action the association had to take preliminary to the enforcement of its lien in this foreclosure action. The record is silent as to how the subsequently recorded fourth and fifth claims of lien as to the same assessments owed by LL 194 Investors prior to the tax deed sale were preliminary or necessary to the ongoing judicial proceeding or to any related action in the future. No facts before the court suggest that any new and separate action to enforce the fourth and fifth claims of lien on behalf of the association was contemplated when those claims of lien were recorded.

On the contrary, the facts presented on this summary judgment record could easily be interpreted to show that such a future filing was not contemplated because the association’s foreclosure action on the same lien was already in litigation, title had already'been'quieted in AGM’s favor, and the lien' was otherwise void as a matter of law. The dispute with the association over AGM’s purported liability for assessments predating its tax deed, for all factual purposes, either had been or was about to be terminated. In other words, it is entirely debatable under the facts of this case that no one ever contemplated commencing litigation based on the fourth and fifth claims of lien and, as a result, that the recording of those claims of lien was not preliminary to future litigation because the association’s lien interest was already fully protected by the then-ongoing litigation the preliminary filing of the first three claims of lien had preserved.

Although no Florida court has addressed the question, it is well-accepted elsewhere that tortious conduct will not be protected by the litigation privilege as being preliminary to future litigation unless that future litigation was actually contemplated in good faith and under serious consideration. See, e.g., Schanne v. Addis, 632 Pa. 545, 121 A.3d 942, 949-51 (2015) (holding that absolute privilege does not extend to statements before commencement of a quasi-judicial proceeding without intent that it lead to one); Mansfield v. Bernabei, 284 Va. 116, 727 S.E.2d 69, 75 (2012) (adopting rule requiring that absolute privilege extends to communications preliminary to litigation that is contemplated in good faith and under serious consideration); Smith v. Suburban Rests., Inc., 374 Mass. 528, 378 N.E.2d 215, 218 (1978) (holding that denial of summary judgment on privilege grounds was proper where undisputed facts did not' show “that the attorney seriously contemplated a judicial proceeding in good faith”); see also Restatement (Second) of Torts: Attorneys at Law § 586, cmt. e (Am. Law Inst. 1977) (“As to communications preliminary to a proposed judicial proceeding the [privilege] applies only when the communication has some relation to a proceeding that is contemplated in. good faith and. under serious . consideration.”). That makes perfect sense. A? a matter of logic, one cannot regard an act as preliminary to an anticipated second act if no one ever really means to attempt the second act. And, as a matter of the policy underlying the litigation privilege, it does not protect the free prosecution and defense of litigation to allow parties to shield misconduct unrelated to the actual litigation from tort liability simply by describing that conduct‘as preliminary to a future judicial proceeding when, in fact, that later judicial proceeding was never seriously regarded by the party in good faith as a genuine possibility. This record presents material, disputed facts as to whether further lien enforcement litigation on the association’s behalf was regard-fed in good faith as a genuine possibility in this case.

Moreover, Business Law Group recorded the fourth and fifth claims of lien after it had withdrawn from representing the association in the lien foreclosure action. It withdrew on grounds that AGM’s third-party causes of action—which are based on Business Law Group’s conduct in filing claims of lien on AGM’s unit—presented a potential conflict of interest with the association. A factual dispute exists, then, over whether Business Law Group’s withdrawal from its attorney-client relationship with the association concerning its disputes with AGM severed the attorney-client relationship as to any future litigation over the lien as well. Termination of that attorney-client relationship insofar as the association’s ongoing dispute with AGM was concerned at least left Business Law Group as a stranger' to the lien foreclosure action pending when it filed the fourth and fifth claims and raises a factual dispute over whether it would also be a stranger to any future enforcement proceedings concerning the same lien and on behalf of an association it had withdrawn from representing on the basis of a potential conflict of interest stemming from litigation against it based on its conduct in filing earlier claims of lién. If the facts are disputable regarding whether Business Law Group was acting on the association’s behalf when it filed the last two claims of lien, then entering summary judgment on AGM’s third-party tort claims as related to the fourth and fifth claims of lien based on the application of the litigation privilege was error. An act taken outside the scope of. Business Law Group’s representation cannot have been necessarily preliminary to any future lien enforcement proceedings. See Restatement (Second) of Torts: Attorneys at Law § 586 (Am. Law Inst. 1977) (stating that the privilege protects an attorney with respect to proceedings “in which he participates as counsel”).

. We are mindful that questions concerning the application of the litigation privilege are regarded as questions of law, see, e.g., DelMonico, 116 So.3d at 1211, and that the resolution of questions of litigation privilege at an early stage of the litigation furthers the policies underlying the privilege, see Levin, 639 So.2d at 608 (describing policy of privilege as allowing the free and zealous prosecution or defense of a case by litigation participants “without fear of having to' defend their actions in a subsequent civil action”). The legal question about the applicability of the privilege that this case presents, however, depends upon the answers to predicate factual questions concerning what further lien enforcement proceedings were contemplated and Business Law Group’s role in those proceedings. The applicability of the litigation privilege may ordinarily rest on undisputed fact questions in other cases. In fact, the summary judgment entered in relation to the first three.claims of lien was determinable as a matter of law in this case because facts as to the filing of those claims of lien were not in dispute. Material facts are in genuine dispute, however, over whether the law also applies to the filing of the last two claims of lien.

AGM’s complaint alleged facts suggesting that the scope, of Business Law Group’s actions that were necessarily preliminary to enforce .the association’s, lien ended either at the filing of the third claim of lien or at its withdrawal from the representation of AGM. Business Law Group alleges otherwise, but it did not present any summary' judgment .evidence showing that a new foreclosure action on its purported lien for unpaid assessments was contemplated after a pending foreclosure action on that very same lien was concluded. Nor did it produce summary judgment evidence to explain why, notwithstanding its withdrawal from the case, it had any reason to record the fourth and' fifth claims of lien. Business Law Group therefore failed to demonstrate why, as a matter of law, those lien filings were necessarily preliminary to any subsequent judicial proceedings to the exclusion of the related factual questions that remain unresolved. The record as it stands presents genuine, material factual disputes relevant on that issue, and the trial court erred in entering summary judgment.

III.

In sum, we hold that the trial court’s grant of summary judgment on the counts related to the fourth and fifth claims of lien was improper because unresolved factual disputes prevented it from determining, as a matter of law, that Business Law Group’s conduct waá necessarily preliminary to future lien enforcement proceedings such that the absolute litiga-, tion privilege would apply. The partial final summary judgment on the third-party complaint against Business Law Group and its named attorneys is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and SLEET, JJ„ Concur.

      . See also Cricket Props., LLC v. Nassau Pointe at Heritage Isles Homeowners Ass'n, 124 So.3d 302, 305 (Fla. 2d DCA 2013) (holding that homeowners association’s lien for unpaid assessments does not survive issuance of a tax deed); A to Z Props., Inc. v. Fairway Palms II Condo. Ass’n, 137 So.3d 453, 455-56 (Fla. 4th DCA 2014) (holding that condominium association’s lien for unpaid assessments does not súrvive issuance of a tax deed). Business Law Group argues that the law concerning the effect of a tax deed sale on a lien for unpaid assessments was unclear at the time of the actions at issue.in this appeal. Whether Business Law Group is correct is not material, however, to our determination of the issue this appeal presents. We therefore express no opinion on that question.

      . That appeal was voluntarily dismissed by the association in January 2014, after the events of significance to this appeal.

      . Business Law Group had previously served affirmative defenses raising the litigation priv-llege. See LatAm Invs., LLC v. Holland & Knight, LLP, 88 So.3d 240 (Fla. 3d DCA 2011) (noting that the litigation privilege is an affirmative defense.)

      . In its recent opinion in Fisher, issued after this case was submitted, the supreme court held that the litigation privilege is not a defense to a cause of action for malicious prosecution. No one has raised that issue in this case, but this may be an issue that needs to be addressed on remand.

      . We note that the supreme court has receded from the view that all conduct preliminary to .a judicial proceeding is absolutely privileged. Even where that standard is met, a qualified privilege may instead be applied where a balancing of the policy interests at stake and a Consideration of the extent to which private individuals are protected from abusive litigation conduct by formal judicial processes suggest that an absolute privilege would be inappropriate. See DelMonico, 116 So.3d at 1214, 1217-19; Fridovich, 598 So.2d at 69. A qualified privilege protects a litigation participant from liability for conduct related to the subject of inquiry in a judicial proceeding unless the conduct was undertaken with express .malice. See DelMonico, 116 So.3d at 1219, We do not reach the issue of qualified privilege in this appeal because Business Láw Group moved for summary judgment solely on grounds of absolute, privilege. See Fla. R. Civ. P. l:510(c) ("The motion must state with particularity the grounds upon which it is based and the'substántial matters of law to be argued .,..”). Furthermore, and perhaps re-latedly, Business Law Group has not pro--duced summary judgment evidence that would meet its.initial burden of demonstrating the absence of a genuine issue of material fact on the question of express malice. See Bernhardt v. Halikoytakis, 95 So.3d 1006, 1008 (Fla. 2d DCA 2012) (“The movant’s burden is to come forward with competent evidence to demonstrate the nonexistence 6f a material issue-of fact.”).


author: LUCAS, Judge.

text:
    Toni SEXTON, Appellant, v. SOUTHFIELD SUBDIVISION MAINTENANCE AND PROPERTY OWNERS’ ASSOCIATION, INC., Appellee.
    Case No. 2D16-3567
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017.
    Rehearing Denied June 6, 2017
    Rory B. Weiner of Rory B. Weiner, P.A., Brandon, for Appellant.
    Gary M. Schaaf of Becker & Poliakoff, P.A., Tampa, for Appellee.
   LUCAS, Judge.

Toni Sexton appeals the entry of a final summary judgment against her and in favor of her homeowners’ association, South-field Subdivision Maintenance and Property Owners’ Association, Inc., which grants injunctive relief and directs Ms. Sexton to maintain her house and lawn in accordance with the association’s various governing documents and recorded restrictions. At the time of the summary judgment motion’s hearing, the court had before it affidavits from both the association and Ms. Sexton. The association’s affidavits mirrored the allegations of its operative complaint, stating that Ms. Sexton’s property was in violation of the recorded restrictions because of the unkempt state of her house’s fascia, “excessively overgrown and unsightly” landscaping, and vehicles parked on Ms, Sexton’s lawn and curb. Ms. Sexton’s affidavit responded that “the items listed as alleged violations in Plaintiffs Second Amended Complaint have been addressed and repaired.”

Although succinct in their respective renderings of the facts, these conflicting affidavits clearly evinced disputed issues about the condition of Ms. Sexton’s property and her compliance with the association’s recorded restrictions. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla. 1999) (“It is a well-settled principle of Florida jurisprudence that summary judgment should not be granted unless the facts are so clear and undisputed that only questions of law remain.” (citing Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985))); Babul v. Golden Fuel, Inc., 990 So.2d 680, 684 (Fla. 2d DCA 2008) (holding that conflicting affidavits concerning the identity of contracting parties to an ambiguous contract precluded summary judgment); Smith v. Harr, 571 So.2d 575, 577 (Fla. 5th DCA 1990) (observing that an affidavit in opposition to summary judgment motion “need only raise a material issue of fact to survive the motion” (citing Harvey Bldg., Inc. v. Haley, 175 So.2d 780, 782-83 (Fla. 1965))). Thus, Ms. Sexton’s argument that the circuit court improvidently entered summary judgment against her is well taken. Accordingly, we reverse the final judgment of the circuit court and remand this case for further proceedings.

Reversed and remanded.

WALLACE and LaROSE, JJ, Concur.

      . We find no merit in Ms. Sexton’s remaining arguments on appeal.


author: PALMER, J.

text:
    Patrick WALSH and Catherine Walsh, Appellants, v. BANK OF NEW YORK MELLON TRUST, etc., et al., Appellees.
    Case No. 5D15-1898
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017
    Rehearing and Rehearing En Banc Denied June 21, 2017

      Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellants.
    Matthew A. Ciccio, of Aldridge/Pite, LLP, Delray Beach, for Appellee, Bank of New York Mellon Trust.
    No appearance for other appellees.
   PALMER, J.

Patrick and Catherine, Walsh (borrowers) appeal the trial court’s final judgment of foreclosure entered in favor of Bank of New York Trust (the bank). Determining that the bank failed to prove standing, we reverse and remand for the entry of an involuntary dismissal.

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (citations omitted). Additionally, a “party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” Venture Holdings & Acquisitions Grp., LLC v. A.I.M Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011). Thus, in order to prove standing, the bank was required to introduce admissible evidence that it (or its agent) possessed a properly-indorsed note at the inception of the case. Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310-11 (Fla. 2d DCA 2013).

Here, the copy of the note attached to the original complaint did not contain any indorsements, and the copy of the note attached to the amended complaint contained an undated blank in-dorsement. Such proof was insufficient to demonstrate standing because “standing cannot be established by simply filing a note with an undated indorsement or al-longe months after the original complaint was filed.” Sorrell v. U.S. Bank Nat’l Ass’n, 198 So.3d 845, 847 (Fla. 2d DCA 2016) (citing Focht, 124 So.3d at 310; Cutler v. U.S. Bank Nat’l Ass’n, 109 So.3d 224, 226 (Fla. 2d DCA 2012)). In addition to introducing the note,' the bank presented a witness who testified that, based on his review of the business records, the bank had possession of the note at the time the bank filed its complaint. Yet, his testimony was not based on personal knowledge, but rather, on his review of a screenshot, which was not offered or admitted into evidence. Thus, that testimony was also insufficient to prove standing. Therefore, the trial court committed reversible error in entering final judgment of foreclosure in favor of the bank. See Gonzalez v. BAC Home Loans Servicing, L.P., 180 So.3d 1106 (Fla. 5th DCA 2015) (holding that the testimony of a witness regarding business records that are not entered into evidence at trial is insufficient to prove standing in a foreclosure case).

Accordingly, we reverse and remand for the entry of an involuntary dismissal. REVERSED and REMANDED.

COHEN, C.J., and SAWAYA, J., concur.


text:
    Rohbanni WILSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-2818
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017
    Rehearing Denied June 29, 2017
    Andy Thomas, Public Defender, and Joanna Aurica Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flannigan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Rohbanni Wilson challenges his convictions and consecutive sentences for first-degree murder, armed robbery, and possession of a firearm by a convicted felon. We affirm the convictions without-discussion, but vacate his sentences because the trial court believed, based on our prior precedent, that it could not exercise discretion in imposing consecutive mandatory minimum terms pursuant to section 775.087(2)(d), Florida Statutes (the 10-20-Life statute). Consistent with our decision in Burns v. State, 212 So.3d 546 (Fla. 1st DCA 2017), we remand for reconsideration of the sentences in light-of Williams v. State, 186 So.3d 989 (Fla. 2016). In so ruling, we certify conflict with Torres-Rios v. State, 205 So.3d 883 (Fla. 5th DCA 2016), as we did in Burns.

AFFIRMED in part, REVERSED in part, and REMANDED.

RAY, KELSEY, and WINOKUR, JJ., CONCUR.


text:
    Anthony THOMASSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1357
    District Court of Appeal of Florida, First District.
    Opinion filed May 2, 2017
    Rehearing Denied June 15, 2017
    Anthony Thomasson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

The court reserves, jurisdiction to. consider the imposition of sanctions.

ROBERTS,. C.J., MAKAR, and JAY, JJ., CONCUR. .