text:
    Rebecca WILLIE-KOONCE, Appellant, v. MIAMI SUNSHINE TRANSFER & TOURS CORP., et al., Appellees.
    No. 3D16-2607
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017.

      Lazer, Aptheker, Rosella, & Yedid and Eric J. Horbey (West Palm Bead]), for appellant.
    Boyd, Richards, Parker & Colonnelli, W. Todd Boyd and Yvette R. Lavelle, for ap-pellees.
    Before SALTER, EMAS and LOGUE, JJ.
   SALTER, J.

Rebecca Willie-Koonce, plaintiff below, appeals an order dismissing her personal injury suit against Miami Sunshine Transfer & Tours Corporation (“Miami Sunshine”) for fraud on the court. We affirm, finding that the trial court did not abuse its discretion after considering a highly-probative surveillance video and the testimony of Ms. Willie-Koonce regarding her claimed limitations after her accident.

Facts

In September 2014, Ms. Willie-Koonce hired Miami Sunshine to drive her and her luggage to the cruise ship dock in Miami. As she was removing her luggage from the trailer pulled by a Miami Sunshine vehicle, the vehicle and trailer began backing up, running over Ms. Willie-Koonce and pinning her under the axle of the trailer. There is no dispute that Ms. Willie-Koonce sustained serious injuries, including a ten-day hospital stay for treatment of a fractured femur. The treatment included implanting a titanium rod and several screws to repair the bone, followed by extensive physical therapy to regain as much of her pre-injury mobility as possible.

Three months after the accident, Ms. Willie-Koonce sued Miami Sunshine and the individual operator of the vehicle which towed the trailer for negligence. During pretrial discovery, Ms. Willie-Koonce provided sworn answers to interrogatories and deposition testimony that included statements that she had a “permanent limp,” that she needs a cane to get around, and that when she walks a “few steps” to her car without a cane, she limps. She also testified that she could not walk without a cane carrying large boxes, had not tried carrying heavy or bulky items, and had to use a handrail to walk up steps without a cane.

Unbeknownst to her at the time, apparently, Ms. Willie-Koonce had been surv-eilled for some seven hours in March 2016, and videotaped for much of that time, by a defense investigator. She was videotaped while moving into a townhome in North Carolina, and the videotape clearly shows her walking continuously up and down steps without using a cane or handrail, carrying large and bulky items (of indeterminate weight) without assistance, up and down the front steps without using a cane or a handrail. The videotape of Ms. Willie-Koonce shows her walking to the back of her automobile, opening the trunk, and carrying packages (again, without the assistance of another person) into the town-home without using a cane or limping.

Miami Sunshine and its driver filed a motion to dismiss the case for fraud on the court, citing Ms. Willie-Koonce’s sworn responses and contrasting it with the surveillance video evidence. They argued that Ms. Willie-Koonce had lied regarding her allegation that her injury is continuing and permanent, with concomitant future damages claimed by her as a result.

Ms. Willie-Koonce filed a response in opposition to the motion to dismiss for fraud on the court, and the trial court conducted an evidentiary hearing on the motion in September 2016. As part of that hearing, Ms. Willie-Koonce testified regarding the surveillance video and her pri- or testimony, but was essentially unable to explain how the video could be consistent with her claims and prior testimony. The following month, the trial court granted the defendants’ motion in a final order of dismissal that included findings of fact and conclusions of law. Among the findings were:

The Court finds that the record evidence establishes that Plaintiff repeatedly lied under oath, both in deposition and at the evidentiary hearing, regarding issues material to the prosecution of Plaintiffs claims, to wit: her physical activities, abilities, and limitations, and that this deception was intended to interfere with the judicial system’s ability to impartially adjudicate the case by improperly influencing the trier of fact and unfairly hampering the Defendants’ ability to defend the case. Plaintiffs untruthful and fraudulent testimony went to the heart of Plaintiffs claimed damages.

Thereafter, Ms. Willie-Koonce filed motions for reconsideration and rehearing, which were denied. This appeal ensued. Analysis

We review an order dismissing a party’s pleadings as a “severe sanction,” to be administered “only in the most egregious cases,” and under a “‘narrowed’ abuse of discretion standard.” Empire World Towers, LLC v. CDR Créances, S.A.S., 89 So.3d 1034, 1038 (Fla. 3d DCA 2012). The movant must prove, by clear and convincing evidence, “that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to-adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Id. (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)).

Ms. Willie-Koonce contends that the. dismissal of the entire case goes too far, as there is no genuine dispute regarding the past medical costs and loss of income as a result of the accident. She maintains that the surveillance videotape only calls into question the extent of damages for future lost wages and for pain and suffering.

In a comparable, but distinguishable, case, videotape surveillance evidence showed that a personal injury plaintiff had testified untruthfully regarding some 19 alleged physical limitations attributable to the accident. Jimenez v. Ortega, 179 So.3d 483, 486 (Fla. 5th DCA 2015). The trial court denied a motion to dismiss (for fraud on the court) all of the compensatory damages awarded by the jury at trial. On appeal, the Fifth District reversed the denial, but adopted a remedy less drastic than dismissal of all claims. The Fifth District allowed the award for property damage and past medical expenses, but reversed and directed dismissal of “the award for lost earnings and the award for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, aggravation of a pre-exist-ing condition and loss of enjoyment of life.” Id. at 489. In that case, however, “[njeither liability nor the costs [plaintiff] sought for medical expenses and the damage to his truck were disputed.” Id. at 484.

Another opinion involving a surveillance video inconsistent with a plaintiffs testimony and damage claims, Amato v. Intindola, 854 So.2d 812 (Fla. 4th DCA 2003), reversed a trial court order of dismissal for fraud , on the court. The court found-that the discrepancies between the plaintiffs sworn testimony and the activities shown on the surveillance' video in that case did not rise to the level of an intén-tional fraud: •

In most cases' of personal injury there is a disparity between what the plaintiff believes are the limitations caused by the injuries and what the defense thinks. Many times surveillance tapes are used to show that the plaintiff can do more than what he or she states are the limitations. The fact that a surveillance tape shows discrepancies usually affects the jury’s view of the case, but in this case it does not merit a dismissal with prejudice to appellant’s case.

Id. at 816.

But in the present ease, the surveillance video and Ms. Willie-Koonce’s testimony (before and after she was aware of the existence of the video) do provide clear and convincing evidence of an intention to deceive the court. The record before us presents precisely the egregious misconduct warranting dismissal. Dismissal was not an abuse of the “somewhat narrowed” discretion afforded the trial judge, and the trial court’s findings following the eviden-tiary hearing (including viewing the video) will not be disturbed here. •

Conclusion

Although the result in this case, may seem rough justice, the courts must deal firmly and publicly with a litigant’s fraud on the very judicial system the litigant asks to render justice. Over 2,000 years ago, Roman law recognized the deterrent effect of harsh penalties in the phrase “Ut poena ad paucos, metus ad omnes perveni-at”—“That punishment may .come to a few, the fear of it should affect all.”

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    T.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1373
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   PER CURIAM.

T.M. was placed on probation for the delinquent act of petit .theft. Thereafter, a petition was filed, alleging T.M. committed several violations of her probation. A probation violation hearing was held and, following the hearing, the trial court orally pronounced T.M. to have violated her probation, and imposed a new term of probation with conditions. The only issue raised in this appeal is that the trial court failed to enter a written order setting forth what conditions of probation were violated by T.M.

As the State concedes in its answer brief, the law is well-settled: if the trial court revokes a juvenile’s probation, the court is required to render a written order setting forth the conditions of probation that were violated. If no such written order was rendered; it is appropriate to remand the case to the trial court for entry of an appropriate order. See A.T.J.F. v. State, 78 So.3d 57, 57 (Fla. 4th DCA 2012) (concluding that “the record contains only disposition orders, so we remand to the trial court for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated”); M.A.L. v. State, 110 So.3d 493 (Fla. 4th DCA 2013). See also Burst v. State, 836 So.2d 1107 (Fla. 3d DCA 2003); Robinson v. State, 74 So.3d 570 (Fla. 4th DCA 2011).

The State contends this appeal is moot because the trial court did in fact enter a written order following T.M.’s probation violation hearing. However, the written order-referred to by the State merely imposes a new term of probation and new (or renewed) conditions; it fails to set forth what conditions of the original probation were violated by T.M.

We therefore affirm but remand to the trial court for the sole purpose of rendering a written order specifying the conditions of probation it found were violated by T.M.


text:
    Rajnauth BISNAUTH, Appellant, v. Sarah LEELUM, Appellee.
    No. 3D16-2072
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2017

      Rajnauth Bisnauth, in proper person.
    Sarah Leelum, in proper person.
    Before EMAS, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Because appellant has failed to provide a transcript of the final hearing or an otherwise adequate record for our review, a presumption of correctness attaches to the trial court’s order. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (holding: “When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal”). Our review is limited to whether any error is apparent on the face of the order on appeal. Hill v. Calderin, 47 So.3d 852, 854 (Fla. 3d DCA 2010) (holding: “Generally, where an appellant fails to provide the appellate court with a trial transcript, the trial court’s judgment must be affirmed. Notwithstanding the absence of a transcript, however, an appellate court may review a lower court judgment for error apparent on its face”) (citations omitted).

Finding no such error, we affirm.


author: Per Curiam.

text:
    Antonio ATWATER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3174
    District Court of Appeal of Florida, First District.
    January 2, 2018
    Rick A. Sichta, Susanne K. Sichta, and Joseph Hamrick of The Sichta Firm, LLC., Jacksonville, for Appellant.

      Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   On Motion for Written Opinion

Per Curiam.

Antonio Atwater was convicted of first-degree murder and two counts of armed robbery. In his single issue on appeal, Atwater argued that the trial court reversibly erred by failing to hold a competency hearing after appointing a confidential expert to evaluate Atwater for the purpose of aiding defense counsel in determining At-water’s competency to proceed. We previously affirmed Atwater’s judgments and sentences without an opinion. We now grant his motion for written opinion, withdraw our prior decision, and substitute the following opinion in its place.

Prior to trial, defense counsel moved, pursuant to Rule 8.216(a), Florida Rules of Criminal Procedure, to have a “confidential expert” appointed “to examine [Atwater] in order to assist counsel in determination of [Atwater’s] competence to proceed.” The court promptly entered an order appointing an expert as requested, and the order expressly provided that under Rule 3.216(a), the expert was to report only to defense counsel and that all matters related to the evaluation fell within the lawyer-client privilege. The content and context of the motion and related oral representations by defense counsel to the court demonstrate that the request for a confidential expert evaluation was made as a precautionary measure and was insufficient to trigger a mandatory competency hearing under Rule 3.210(b), Florida Rules of Criminal Procedure. Without more, the court was not required to take further action relating to Atwater’s competency before proceeding with trial and sentencing. See Crosby v. State, 176 So.3d 382, 383 (Fla. 5th DCA 2016) (explaining a trial court is not required to conduct a Florida Rule of Criminal Procedure 3.210 competency hearing after appointing an expert at defense counsel’s request made pursuant to Rule 3.216, “unless the defendant’s attorney decides to actually raise the defense of insanity or assert incompetence to proceed.”); see also State v. Guyton, 446 So.2d 644, 644-45 (Fla. 4th DCA 1984) (discussing rules 3.210 and 3.216).

Affirmed.

Ray and Osterhaus, JJ., and Patterson, Christopher N., Associate Judge, concur.


author: LAMBERT, J. EISNAUGLE, J.

text:
    Moriya MCNULTY, Appellant, v. Christine BOWSER, Appellee.
    Case No. 5D16-3330
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 5, 2018

      Jack L. Platt and Tiffani R. Cole, of Platt Hopwood Attorneys at Law PLLC, Melbourne, for Appellant.
    Elizabeth Siano Harris, of Harris Appellate Law Office, Mims, for Appellee.
   ON EN BANC CONSIDERATION OF APPELLEE’S MOTION FOR ATTORNEY’S FEES

LAMBERT, J.

Appellee, Christine Bowser (“Mother”), has moved for appellate attorney’s fees pursuant to section 742.045, Florida. Statutes (2015). Mother acknowledges that this court’s precedent in Starkey v. Linn, 727 So.2d 386, 388 & n.3 (Fla. 5th DCA 1999), provides that this statute does not authorize or allow an award of appellate attorney’s fees in paternity actions. She asks that we recede from our decision in Starkey and grant her motion. Pursuant to Florida Rule of Appellate Procedure 9.331, the majority of the judges of this court have voted to consider this matter en banc. For the following reasons, we grant Mother’s motion and recede from Starkey.

In 1991, the Florida Legislature, enacted section 742.045. The first sentence of this statute, which has remained unchanged-for twenty-six years, provides:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for- attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.

§ 742.045, Fla. Stat. (2015).

This sentence is identical to the first sentence of the 1991 version of section 61.16, Florida Statutes, applicable in dissolution of marriage proceedings. At the time, section 61.16 was construed by each appellate court as authorizing attorney’s fees awards both at trial and on appeal. See Chisholm v. Chisholm, 538 So.2d 961, 963 (Fla. 3d DCA 1989); Gieseke v. Gieseke, 499 So.2d 839, 839 (Fla. 4th DCA 1986); Thornton v. Thornton, 433 So.2d 682, 685 (Fla. 5th DCA 1983); Bryan v. Bryan, 342 So.2d 858, 859 (Fla. 2d DCA 1977); Sommese v. Sommese, 324 So.2d 647, 648 (Fla. 1st DCA 1976).

“The Legislature is presumed to be acquainted with judicial decisions on the subject concerning which it subsequently enacts a statute.” Collins Inv. Co. v. Metro. Dade Cty., 164 So.2d 806, 809 (Fla. 1964), superseded by statute on another issue as recognized in Adler-Built Indus., Inc. v. Metro. Dade Cty., 231 So.2d 197, 199 (Fla. 1970). Therefore, when the Legislature enacted section 742.045 in 1991- and utilized the identical language from section 61.16, it presumably knew and thus approved of the earlier judicial construction of section 61.16 to award attorney’s fees both at trial and on appeal.

In 1994, the Legislature amended the first sentence of section 61.16, by adding the words “and appeals” to the end of the sentence. The Legislature did not similarly amend section 742.045. In' 1999, our court concluded in Starkey that section 742.045 did not authorize appellate attorney’s fees in paternity cases because the words “and appeals” now in section 61.16 were “conspicuously” absent from section' 742.045, apparently reasoning that the Legislature implicitly intended to preclude appellate attorney’s fees in paternity cases when it amended section - 61.16 without similarly amending section '742.045. See 727 So.2d at 388 n.3. We now hold that our interpretation in Starkey was erroneous.

“Questions of statutory interpretation are reviewed de novo.” Kumar v. Patel, 227 So.3d 557, 558-59 (Fla. 2017) (citing Borden v. E.-European Ins., 921 So.2d 587, 591 (Fla. 2006)). Accordingly, in reviewing section 742.045, “[w]e first examine the statute’s plain meaning, resorting to rules of statutory construction only if the statute’s language is ambiguous.” Id. (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984)); see also BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (stating that statutory interpretation “begins with the statutory text, and ends there as well if the text is unambiguous”). Because section 742.045 unambiguously provides for an award of attorney’s fees for maintaining or defending any proceeding under this chapter, there is no need to resort to rules of statutory construction to ascertain the legislative intent behind the statute. See Brook v. State, 999 So.2d 1093, 1097 (Fla. 5th DCA 2009) (citing Cherry v. State, 959 So.2d 702, 713 (Fla. 2007)). Where, as here, the Legislature has not specifically defined “proceeding” in chapter 742, this term should be given its- plain and ordinary meaning. See Debaun v. State, 213 So.3d 747, 751 (Fla. 2017) (quoting Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1233 (Fla. 2009)). And, “[w]hen considering the plain meaning of an undefined statutory term, Florida courts máy consult dictionaries to derive the term’s ordinary definition.” Hurd v. State, 229 So.3d 876 (Fla. 5th DCA 2017) (citing Debaun, 213 So.3d at 751).

Black’s Law Dictionary defines “proceeding” as “[a]ny procedural means for seeking redress from a tribunal or agency.” Proceeding, Black’s Law Dictionary (10th ed. 2014). Similarly, Merriam-Webster’s Dictionary of Law defines “proceeding” as “a particular step or series of steps in the enforcement, adjudication, or administration of rights, remedies, laws, or regulations.” Proceeding, Merriam-Webster’s Dictionary of Law (1996); see also Raymond James Fin. Servs., Inc. v. Phillips, 126 So.3d 186, 190 & n.4 (Fla. 2013) (utilizing these two definitions of the term “proceeding”). This appellate court clearly is a tribunal from which a party may seek redress. Moreover, “an appeal is but part of the action being appealed.” Disney v. Vaughen, 804 So.2d 581, 583 (Fla. 5th DCA 2002) (citing Williams v. Brochu, 578 So.2d 491 (Fla. 5th DCA 1991)). Therefore, because Mothér, by defending in this appellate proceeding arising from a final judgment of paternity entered under chapter 742, Florida Statutes, is taking a particular step in the adjudication of both her and her children’s rights, we conclude that she is entitled to an award of appellate attorney’s fees under the plain language and meaning of section 742.045.

We therefore recede from Starkey and grant Mother’s motion for appellate attorney’s fees, conditioned upon a showing of her need and Father’s ability to pay. We remand for the trial court to make that determination and to award Mother a reasonable fee, should need and ability to pay be established.

MOTHER’S MOTION FOR APPELLATE ATTORNEY’S FEES GRANTED; CASE REMANDED.

COHEN, C.J., SAWAYA, PALMER, ORFINGER, TORPY, EVANDER, WALLIS, and EDWARDS, JJ., concur.

EISNAUGLE, J., dissents, with opinion, in which BERGER, J., concurs.

EISNAUGLE, J.

I dissent and would not recede from Starkey v. Linn, 727 So.2d 386 (Fla. 5th DCA 1999). As Judge Klingensmith astutely explained in Beckford v. Drogan, while section 742.045, Florida Statutes (2015), “specifically identifies enforcement and modification actions as ‘proceedings’ under chapter 742, Florida Statutes, nothing within the entirety of that chapter identifies ‘any proceeding under this chapter’ to include appeals.” 216 So.3d 1, 2 (Fla. 4th DCA 2017) (Klingensmith, J., dissenting) (citing Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008); Pavelic & LeFlore v. Marvel Entm’t Grp., 493 U.S. 120, 126, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989)).

The majority here makes the same error as the majority in Beckford. After announcing that the statute is unambiguous, the majority focuses solely on the phrase “any proceeding.” I agree that “any proceeding” is clear, and that an appeal is a legal proceeding, but the phrase “under this chapter” is equally clear. And while the phrase “any proceeding” is quite broad, it is obviously narrowed by the phrase “under this chapter.” Thus, the question here is not whether an appeal is a “proceeding,” but whether an appeal is a proceeding “under” chapter 742. Yet, the majority fails to include this narrowing phrase in its analysis.

As the majority recognizes, the Legislature knows how to revise an attorney’s fees statute to include appellate attorney’s fees when it so desires. This court is without constitutional authority to make policy decisions or rewrite the statute by giving effect to only part of its language, no matter how much we may dislike the outcome. Thus, I would give meaning to all of the language within section 742.045, and find no grounds to recede from the decision rendered by this court eighteen years ago in Starkey.

For what it’s worth, I agree that the Legislature should amend the statute to authorize appellate attorney’s fees. Nevertheless, eighteen years after Starkey, it has not done so. While I invite them to do so now, that decision is for the Legislature alone.

BERGER, J., concurs.

      . See Ch. 91-246, § 7, at 2416, Laws of Fla.


author: BLACK, Judge.

text:
    Len K. FURMAN, Petitioner, v. Jan Cary FURMAN, Respondent.
    Case No. 2D17-2239
    District Court of Appeal of Florida, Second District.
    Opinion filed January 5, 2018

      Mark W. Lord, Sarasota, for Petitioner.
    Jordan L. Wallach of Jordan L. Wallach, P.A., Sarasota, for Respondent.
   BLACK, Judge.

Len Furman, the Husband, seeks certio-rari review of the circuit court’s order disqualifying his attorney from representing him in pending dissolution proceedings based on the attorney’s involvement in drafting the prenuptial agreement at issue below. We grant the petition for writ of certiorari and quash the order disqualifying the Husband’s attorney.

The initial motion to disqualify was filed by Jan Furman, the Wife, on February 5, 2010. The motion alleged that the Husband’s attorney was involved in drafting the prenuptial agreement and would be a “material witness” in the case, but the motion did not otherwise allege a basis for the disqualification. The Wife’s counsel subsequently withdrew from the case on September 1, 2010, without scheduling the motion to disqualify for a hearing. Almost five years later, the Wife’s former counsel filed a notice of appearance, and on December 29, 2016, almost seven years after the initial motion was filed, the Wife filed a “renewed motion to disqualify.” The 2016 motion alleged not only that the Husband’s attorney prepared the agreement and would be a “material witness,” it also alleged that the Husband’s attorney “has a personal interest in ensuring that the prenuptial agreement” is upheld and enforced; that the attorney’s “independent, professional judgment will suffer material interference by his own personal interest in ensuring the prenuptial agreement is upheld” that the attorney’s “testimony may violate his own duty to the Husband to provide the Husband with diligent and competent representation” and that the attorney’s representation of the Husband violates rules 4-1.7 and 4-3.J7 of the Florida Rules of Professional Conduct. Following a hearing,- the circuit court granted the renewed motion to disqualify. The order contains no findings and directs that the Husband shall obtain alternate counsel with no conditions, limitations, or qualifications.

“Disqualification of counsel is ‘an extraordinary remedy that should be used most sparingly.’ ” Bon Secours-Maria Manor Nursing Care Ctr., Inc. v. Seaman, 959 So.2d 774, 775 (Fla. 2d DCA 2007) (quoting Akrey v. Kindred Nursing Ctrs. E., L.L.C., 837 So.2d 1142, 1144 (Fla. 2d DCA 2003)). As such, “review of an order of disqualification, by certiorari is appropriate, and a reviewing court may grant the writ where the.petitioner can demonstrate that the order disqualifying counsel departed from the essential requirements , of law.” Id. (citing Akrey, 837 So.2d at 1144); accord Lieberman v. Lieberman, 160 So.3d 73, 74 (Fla. 4th DCA 2014). “[Because ‘an order disqualifying counsel denies the right to choose one’s counsel and works a material injury that cannot be remedied oh appeal,”’ the jurisdictional requirements for certiorari review are met. Alto Constr. Co. v. Flagler Constr. Equip., LLC, 22 So.3d 726, 727 (Fla. 2d DCA 2009) (quoting AlliedSignal Recovery Tr, v. AlliedSignal, Inc., 934 So.2d 675, 677 (Fla. 2d DCA 2006)). We must therefore determine whether'the circuit court departed from the essential requirements of law.

The Husband argues that by requiring “full disqualification” of his attor-. ney and by ruling on the motion “without an evidentiary basis to do so,” the circuit court departed from the essential.requirements of law. Because the Husband’s argument focuses on the latter, we begin with the argument that the court granted the unsworn motion without holding an eviden-tiary hearing or otherwise having an evi-dentiary basis to grant the motion.

“[T]he Florida Rules of Professional Conduct provide the standard for determining whether counsel should be disqualified in a given case.” Young v. Achenbauch, 136 So.3d 575, 580 (Fla. 2014) (citing State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633 (Fla. 1991)). Here, the Wife has identified rules 4-1.7 and 4-3.7 as the applicable rules of professional, conduct.

Rule 4-1.7 is the conflict-of interest rule. It appears that the Wife contends that the Husband’s attorney would be -in violation of rule 4-1.7(a)(2) if he continues to represent the Husband: “[A] lawyer must not represent a client if ... there is a substantial risk that the representation of 1 or more clients will be materially' limited by ... a' personal interest of the lawyer.” Rule 4-1.7 also states, however, that

[notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if:
(1) the lawyer reasonably, believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.

R. Regulating Fla. Bar 4-1.7(b); see also R. Regulating Fla. Bar 4-1.7, cmt. (“A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s inSepen-dent professional judgment in considering alternatives or foreclose courses of action, that reasonably should be pursued on behalf of the client.”). Rule 4-3.7 governs lawyers as witnesses and provides, in pertinent part:

A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to, the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case; or
(4). disqualification of the lawyer would work substantial hardship on the client.

R. Regulating Fla. Bar. 4-3,7(a).

The circuit court’s first task in deciding the motion for disqualification was to determine whether the Wife had shown—via competent evidence—that the Husband’s attorney’s representation would be materially limited by the attorney’s personal interest or that the attorney would be a witness on behalf of the Husband as to a contested issue. Neither the original motion nor the renewed motion for disqualification was sworn. There were no attachments to the motions, such as affidavits. Although the appendices provided to this court do not contain a transcript of the hearing held on the, renewed motion to disqualify, the Wife does not dispute the Husband’s statement that no evidence was provided to the circuit court; rather, the Wife contends that “the only ‘fact’ which the Wife relies upon to support disqualification is that [c]ounsel for the Husband was responsible for -the drafting and execution of .the parties’ antenuptial agreement” and that such fact is undisputed. The Wife contends that her affirmative defenses, as well as her counter-petition for dissolution, allege that the prenuptial agreement attached to the Husband’s petition for dissolution is not the same document executed by the Wife and that the prenuptial agreement was procured by “fraud, duress, undue influence or coercion.” The Husband contends that his attorney was not present for the execution of the prenuptial agreement and that his attorney has no knowledge of the alleged “fraud, duress, undue influence or coercion.”

The Wife’s affirmative defenses and counter-petition are unverified. She presented no evidence as to how the Husband’s attorney’s testimony will support her claims or how it will be in conflict with his client’s interests. See Bon Secours-Maria Manor, 959 So,2d at 777 (quashing disqualification order where movant “did not offer any testimony, affidavits, or.other evidence in support of her motion”); Strawcutter v, Strawcutter, 101 So.3d 417, 419.(Fla. 5th DCA 2012) (granting writ of certiorari where, as to “the husband’s first basis for disqualification, the hearing only involved argument from the attorneys; the husband did not present any evidence demonstrating that [the law firmed retained by the wife] became privy to any privileged communications”).

Moreover, the Husband does not intend to call his attorney as a witness; rather, it is the Wife who intends to call the Husband’s attorney as a witness. Cfi R. Regulating -Fla. Bar 4-3.7 (stating that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client” (emphasis added)). “The Rules Regulating The Florida Bar do not mandate an attorney’s automatic disqualification when he or she is called to testify by an opposing party.” Alto Constr. Co., 22 So.3d at 727-28 (citing AlliedSignal Recovery Tr., 934 So,2d at 680). “The requirement that a lawyer withdraw when he expects to be a witness was not intended to permit an opposing party to call him as a witness and disqualify him from serving as counsel.” AlliedSignal Recovery Tr., 934 So.2d at 680; accord Steinberg v. Winn-Dixie Stores, Inc., 121 So.3d 622, 626 (Fla. 4th DCA 2013). “A conflict requiring disqualification, however, could arise if an opposing party called trial counsel as a witness and counsel’s testimony was adverse to the client’s position.” Steinberg, 121 So.3d at 625.

Nonetheless, the Wife has not shown that the Husband’s attorney’s testimony “would be adverse” to the Husband’s “factual assertions or account of events.” See Alto Constr. Co., 22 So.3d at 728; see also AlliedSignal Recovery Tr., 934 So.2d at 680 (“AlliedSignal, however, made no showing that [the Trust’s attorney] would give any testimony ‘sufficiently adverse to the factual allegations or account of events offered on behalf of the [Trust].’ ” (second alteration in original)); Therriault v. Berghmans, 788 So.2d 1119, 1120 (Fla. 2d DCA 2001) (granting writ of certiorari and concluding that disqualification was “premature” where attorney had not “been deposed as to what his testimony [would] be” as to the matter at issue); Steinberg, 121 So.3d at 625 (granting petition for writ of certiorari where movant failed to prove that opposing party’s attorney’s testimony would be “sufficiently adverse” to the position of the opposing party to warrant disqualification); cf. Singer Island Ltd. v. Budget Constr. Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998) (holding that trial court properly denied motion to disqualify where movant only showed a mere possibility that disqualification may be necessary and counsel had not been deposed to determine if his testimony would support a motion to disqualify).

The circuit court departed from the essential requirements of law by relying on an unsworn motion, unsworn allegations, and counsel’s argument as its only basis for the entry of an order of disqualification. See Bon Secours-Maria Manor, 959 So.2d at 780; see also Akrey, 837 So.2d at 1146 (quashing disqualification order where “the trial court departed from the essential requirements of law by reaching its conclusion without conducting an evi-dentiary hearing” (quoting Simon DeBartolo Grp., Inc. v. Bratley, 741 So.2d 1254, 1254 (Fla. 1st DCA 1999))).

The circuit court also departed from the essential requirements of law by disqualifying counsel without limiting the order to the trial, if one is held. Rule 4-3.7 specifically refers to trial, and a trial court departs from the requirements of law where it fails to narrow the disqualification to only the necessary proceedings. See, e.g., KMS Rest. Corp. v. Searcy, Denney, Scarola, Barnhart & Shipley P.A., 107 So.3d 552, 552 (Fla. 4th DCA 2013) (“The trial court’s order departs from the essential requirements of law because it is not limited to disqualifying counsel from representing KMS at trial. The fact that counsel will be a material witness does not preclude him from participating in proceedings before and after trial.” (citations omitted)); Graves v. Lapi, 834 So.2d 359, 360 (Fla. 4th DCA 2003) (granting certiorari in part where “the order was too broad in not limiting the disqualification to trial advocacy”).

Accordingly, we grant the petition for writ of certiorari and quash the order disqualifying the Husband’s attorney.

Petition granted; order quashed.

CASANUEVA and BADALAMENTI, JJ., Concur.

      . In response to this court’s order for supplementation of the Husband’s appendix with the hearing transcript, the Husband advised that a court reporter was not present for the hearing.


author: MORRIS, Judge.

text:
    Carlton DIXON, Appellant, v. Sandra DIXON n/k/a Sandra Pfundheller, Appellee.
    Case No. 2D16-3099
    District Court of Appeal of Florida, Second District.
    Opinion filed January 05, 2018
    Chrystal R. Koch of Koch Law Firm, Sarasota, for Appellant.
    No appearance for Appellee.
   MORRIS, Judge.

Carlton Dixon, the former husband, appeals a supplemental judgment for child support. We reverse the judgment in part because the trial court adopted an erroneous finding by the hearing officer that the former husband was required to continue paying medical support payments for his oldest child who had already reached the age of majority. We affirm the other por.tions of .the supplemental judgment .without further comment.

Because the facts are undisputed and the trial court’s decision rests on an issue of law, we review the judgment de novo. Jarrard v. Jarrard, 157 So.3d 332, 337 n.5 (Fla. 2d DCA 2015).

Ordinarily, a child support order terminates automatically on a child’s eighteenth birthday. See Loza v. Marin, 198 So.3d 1017, 1020 (Fla. 2d DCA 2016) (citing .§ 61.13(l)(a)(l)(a), Fla. Stat. (2010)). This is because a parent has no legal duty to continue to provide support to a child who has reached the age of majority unless the trial court has made a finding of dependence pursuant to section 743.07(2), Florida Statutes (2010), or the parties otherwise agree. Id. (citing § 61.13(l)(a)(l)(a)); see also Grapin v, Grapin, 450 So.2d 853, 854 (Fla. 1984); Stultz v. Stultz, 504 So.2d 5, 6 (Fla. 2d DCA 1986). The termination of a legal duty to support includes support for medical services. See Ison v. Fla. Sanitarium & Benevolent Ass’n, 302 So.2d 200, 201-02 (Fla. 4th DCA 1974) (holding that “the parent of an emancipated child is not liable for his child’s hospital and medical services”). Thus “a ‘final judgment’s silence on the continuing obligation of support after the child’s eighteenth birthday results in the ... [support] obligation ... also terminating upon the child’s eighteenth birthday.’ ” Loza, 198 So.3d at 1021 (alteration in original) (quoting Phillips v. Phillips, 83 So.3d 903, 905 (Fla. 2d DCA 2012)).

Here, at the time of the divorce between the former husband and the former wife, Sandra Dixon a/k/a Sandra Pfundheller, the parties’ oldest child was still a minor. The final judgment of dissolution of marriage required the former husband to pay $176.67 per month towards the costs of “ongoing” diabetes treatment for the parties’ oldest child. When the child support amount was amended in April 2010, at a time when the oldest child was still a minor, the $176.67 medical support payments were continued “as previously ordered.” Thus both the final judgment of dissolution and the April 2010 order amending- child support were silent on the issue of whether the former husband’s obligation to pay the medical support payments was to continue after the oldest child reached the age of majority. And it is undisputed that the trial court never made a finding that the oldest child was physically incapacitated. Likewise, it is undisputed that the parties never entered into an agreement that the former husband would continue to pay the medical support payments beyond the oldest child’s eighteenth birthday.

The hearing officer erred in treating the medical support payments as a separate obligation that could not be modified iii the child'support modification proceedings. In his pro se motion to re-determine back child support, the former husband sought to have his obligation to pay the medical support payments cease due to the oldest child’s emancipation based on the child reaching the age of majority. And section 61.13(l)(a)(2)(b), addresses medical support payments within the context .of child support payments generally. Thus the medical support payments were subject to modification in the child support modification proceedings.

The hearing officer then compounded the error by concluding that the former husband was obligated to continue paying the medical support payments because the final judgment of dissolution “doesn’t have a stopping date” and because the former wife was still paying for the .oldest child’s diabetes -treatment. As we have already explained, both the final judgment and the April 2010 order amending child support were silent on the continuing nature of the medical support payments once the oldest child reached .the age of majority. Consequently, the former husband’s obligation to pay the medical support payments ended once the oldest child turned eighteen. See Loza, 198 So.3d at 1021.

Because the trial court erred in adopting the erroneous findings of the hearing officer, we reverse the portion of the supplemental judgment for child support which continues the former husband’s obligation to pay the $176.67 medical support payments. On remand, the trial court should recalculate the former husband’s arrearag-es consistent with this opinion. See Gilbert v. Cole, 107 So.3d 426, 427-28 (Fla. 1st DCA 2012) (explaining that where a child support award is allocated between children and the obligor’s support obligation as to one child ends upon the occurrence of the child’s emancipation, “the obligor is entitled to a retroactive reduction pre-dat-ing a modification petition, consistent with the statutory child support guidelines”); Karten v. Karten, 983 So.2d 17, 19 (Fla. 3d DCA 2008) (explaining that obligation of support. terminates automatically upon, a child attaining the age of majority and that “[i]f there must be resort to the court for recalculation of. the child support amount for the remaining children, then the recalculation is retroactive to the date the child attained eighteen (or had' another qualifying event)”). In all other respects, the supplemental judgment for child support is affirmed.

. Affirmed in part, reversed in part, and remanded for proceedings in conformance with this opinion. .

KHOUZAM and CRENSHAW, JJ., Concur.

      . The parties have two children, one of whom is still a minor.

      . Section 743.07(1) provides that once a child-reaches the age of 18, they are no longer considered a minor and that they enjoy all the same "rights, privileges, and obligations” of ' persons who are 21 Or older "except' as otherwise excluded by the State Constitution ... and except as otherwise provided in the Beverage Law.” But subsection (2) provides that a trial court may order support for a dependent person beyond the age of 18 when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.

      . Although the original final judgment of dissolution awarded a single monthly sum for traditional child support for both children, the final, judgment made clear that the $176.67 monthly sum was for the purpose of paying for medical costs related to the. oldest child’s diabetes treatments. Thus it is undisputed that ■ the medical support payment amount was an allocated award. ,


text:
    Rafael RODRIGUEZ-RUIZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3478
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 16, 2018
    Rafael Rodriguez-Ruiz; Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Brooks v. State, 969 So.2d 238 (Fla. 2007) (holding that proper test for motion to correct illegal sentence is whether same sentence could have been imposed with corrected scoresheet).

ORFINGER, EVANDER and BERGER, JJ., concur.


author: LAMBERT, J.

text:
    Ronald David MENDENHALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-812
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 19, 2018
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAMBERT, J.

We affirm the judgment and sentence rendered by the trial court after Appellant’s violation of probation trial because we conclude that the arguments raised by Appellant in this appeal are without merit. We note that the trial court’s written order terminating Appellant’s probation is deficient because it fails to state the conditions of probation that the trial court orally found that Appellant had violated. Long v. State, 886 So.2d 280, 281 (Fla. 1st DCA 2004). However, this error has not been preserved for appellate review because Appellant did not object at trial or raise this specific issue in the Florida Rule of Criminal Procedure 3.800(b)(2) motion that he filed in this case. See Jones v. State, 898 So.2d 209, 209 (Fla. 2d DCA 2005) (finding that the trial court’s error in failing to specify in its written revocation order the conditions of probation that it orally found the defendant had violated was properly preserved for review by the defendant’s filing a motion to correct sentence pursuant to rule 3.800(b)(2)). Lastly, we remind trial courts that the court minutes from trial, listing the conditions of probation orally found by the court to have been violated by a defendant, as was done here, is not a substitute for a proper revocation order because court minutes and the minute book entries are specifically excluded from the definition of a court order. See Fla R. App. P. 9.020(f).

Accordingly, the judgment and sentence are affirmed without prejudice to Appellant filing a motion for postconviction relief.

AFFIRMED, without prejudice.

PALMER and WALLIS, JJ., concur.


text:
    Shawn ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4898
    District Court of Appeal of Florida, First District.
    January 22, 2018

      Rhonda Peoples-Waters, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant seeks review of a criminal judgment and sentence rendered by filing with the clerk of the lower tribunal on October 12, 2017. Fla. R. App. P. 9.020(1). The notice of appeal, filed on November 15, 2017, failed to invoke the Court’s jurisdiction in a timely manner. Fla. R. App. P. 9.140(b)(3). Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Makar, Osterhaus, and Winokur, JJ., concur.


text:
    Beatrice HARRISON, on behalf of herself and all others similarly situated, Appellant, v. LEE AUTO HOLDINGS INC., d/b/a Lee Buick GMC, and Lee Nissan, Appellee.
    No. 1D17-4386
    District Court of Appeal of Florida, First District.
    January 22, 2018
    William C. Bielecky, Tallahassee, for Appellant.
    M. Stephen Turner and Joshua P. Brian of Broad and Cassel LLP, Tallahassee, for Appellee.
   Per Curiam.

The Court having determined that the Order on Motion for Summary Judgment is neither a final order, nor a non-final order appealable pursuant to Florida Rule of Appellate Procedure 9.130, this appeal is dismissed for lack of jurisdiction. Appellant’s motion and amended motion to relinquish jurisdiction are denied as moot.

Roberts, Bilbrey, and Kelsey, JJ., concur.


text:
    Derek B. BETTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3239
    District Court of Appeal of Florida, First District.
    January 22, 2018
    Derek B. Betts, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

This Court issued an o^der on October 12, 2017, directing Appellant to show cause why sanctions should not be imposed against him in light of his having instituted numerous repetitive, meritless proceedings in this Court. See State v. Spencer, 751 So.2d 47 (Fla. 1999). We have reviewed Appellant’s response and determined it does not provide a legal basis to justify withholding imposition of sanctions.

Appellant is hereby prohibited from filing any pro se filings in this Court challenging his conviction and sentence imposed in Duval County case number 91-CF-5199. The Clerk of this Court is directed to not accept any filings in this case unless they are signed by a member in good standing of the Florida Bar. Additionally, we find this appeal is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2017). We direct the clerk to forward a certified copy of this opinion to the appropriate institution or facility within the Florida Department of Corrections for disciplinary procedures pursuant to department rules.

Lewis, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Kenneth CHRISTIAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1651
    District Court of Appeal of Florida, First District.
    January 22, 2018
    Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Affirmed. See Atwater v. State, 233 So.3d 1276, 2018 WL 267081 (Fla. 1st DCA Jan. 2, 2018) (holding that a motion under rule 3.216(b), Fla. R. Crim., P., for a competency evaluation as a “precautionary measure” did not then require “a mandatory competency hearing” under rule 3.210(b), Fla. R. Crim. P.).

Lewis, Osterhaus, and Bilbrey, JJ., concur.


text:
    Darryl ALLMOND, Appellant, v. DALE CARSON LAW and Samantha Caldwell, Appellees.
    No. 1D17-2622
    District Court of Appeal of Florida, First District.
    January 29, 2018
    Darryl Allmond, pro se, Appellant.
    Michael R. D’Lugo of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for Appellees.
   Per Curiam.

Upon the court’s own motion, we find that the Initial Brief fails to comply with rule 9.210(b)(1)—(6), Florida Rules of Appellate Procedure and that Appellant’s references to ineffective assistance of counsel in the Initial Brief have no application to the summary final judgment entered in the civil action below. Because Appellant demonstrates no preliminary basis for reversal of the order appealed, summary affir-mance is warranted under rule 9.315, Florida Rules of Appellate Procedure. See Cabrera v. Outdoor Empire Inc., 134 So.3d 573 (Fla. 1st DCA 2014); Spencer v. Fla. Power Light/Broadspire, 141 So.3d 203 (Fla. 1st DCA 2013).

Accordingly, the summary final judgment appealed is Affirmed.

Lewis, Osterhaus, and Bilbrey, JJ., concur.


text:
    Jayme DOUCETTE, Appellant, v. Stacie RICHARDSON, Appellee.
    No. 1D17-4839
    District Court of Appeal of Florida, First District.
    January 30, 2018
    Austin Brown, E.T. Fernandez, III, Sorena S. Fallin and John Moffitt Howell of Fernandez Trial Lawyers, P.A., Jacksonville, for Appellant.
    Rick Sichta, Susanne K Sichta and Joseph Hamrick of The Sichta Firm LLC, Jacksonville, for Appellee.
   Per Curiam.

Dismissed. City of Panama City v. Andina, Inc., 63 So.3d 908 (Fla. 1st DCA 2011).

Lewis, Osterhaus, and Bilbrey, JJ., concur.


text:
    Joe Lewis JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-0560
    District Court of Appeal of Florida, First District.
    January 30, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Anne C. Conley and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Makar, Osterhaus, and Winokur, JJ., concur.


author: Kuntz, J.

text:
    Archana SINGH and Dennis Massey, Appellants, v. Dev T. KUMAR, Appellee.
    No. 4D17-241
    District Court of Appeal of Florida, Fourth District.
    [October 11, 2017]
    Meredith A. Chaiken of Tenberg Chaiken, LLC, Lighthouse Point, for appellants.
    ' Geoffrey D. Ittleman of The Law Offices of Geoffrey D. Ittleman, P.A., Fort Laud-erdale, for appellee.
   Kuntz, J.

The Defendants raise three arguments in their appeal of the court’s default final judgment. First, they argue the court erred -in entering a default final judgment without ruling on their pending motions to set aside an earlier issued default. Second, they argue the court erred when it entered the default final judgment as a sanction without finding their conduct willful. Third, they argue the court érred by failing to consider separate letters, which the then-pro se Defendants sent to the court, prior to the issuance of. the default, denying the allegations in the complaint. We agree with each of their arguments and reverse.

Background

The Plaintiff filed a five-count complaint against the two Defendants arising out of a $30,000 oral loan agreement. Through counsel, the Defendants moved to dismiss the complaint for lack of personal jurisdiction.

The Defendants’ attorney moved to withdraw on the day the motion to dismiss was scheduled for hearing. Notwithstanding the motion to withdraw, the court held the scheduled hearing, denied the motion to dismiss for lack of personal jurisdiction, and ordered the Defendants to answer the complaint. Due to the “withdrawal of Defendants’ counsel” and to “provide sufficient time for Defendants to retain new counsel,” the court’s order allowed the Defendants sixty days to answer the Plaintiffs complaint. The order also provided that the failure to timely answer would result in a default.

At 10:00 a.m. on the first business day after the expiration of the sixty-day deadline, the Plaintiff moved for a default and served the pro se Defendants by U.S. Mail at an address in California. Only seven days after the motion for default was filed, the court entered an order of default.

The Defendants moved to set aside the default and then filed a separate motion to vacate the default. The motions noted that one month prior to the court’s order of default, the Defendants sent individual letters directly to the presiding judge. These letters were docketed by the Clerk of Court. One letter denied any connection to the Plaintiff and the loan; the other acknowledged a relationship with the Plaintiff, but denied the allegations in the complaint.

Thereafter, the Plaintiff moved for default final judgment and the court entered a default final judgment against the Defendants. After the entry of the default final judgment, counsel appeared for the Defendants and timely filed both a motion for rehearing and a motion to vacate the default final judgment and set aside default.

The court heard the post-judgment motions. At the hearing, the court declined to entertain the Defendants’ timely filed motion for rehearing and later denied the motion in a written order. However, the court did consider the Defendants’ motion to vacate at the hearing.

Counsel for the Defendants argued that both Defendants sent pro se letters to the court prior to the entry of default and, therefore, the default should be vacated. With regard to the two pro se letters, the court stated that “[t]hey weren’t filed. They’re sending to me, like, ex parte but they’re not filed. They’re not e-filed. And they were given instruction by prior counsel on that. They weren’t properly filed. They were just sent to my office.” Later, the court stated that “you have to understand something, even with them not e-filing it, the Court considered it” and “if the argument would be that they didn’t understand how to properly e-file, it would be one thing, but because they were pro se and I did receive it, Mr. Levine, I did consider it.”

After making these statements regarding the pro se letters, the court denied the motion to vacate and subsequently denied the motion for rehearing. The Defendants timely appealed the court’s default judgment and denial of the motion for rehearing.

Analysis

The Defendants raise three arguments on appeal:

1. The court erred in entering a default final judgment without first ruling on their pending motions to set aside an earlier default.
2. The court erred in entering a default final judgment as a sanction without finding their conduct to be willful; and
3. The court erred when it refused to consider the letters the Defendants sent directly to the court prior to the issuance of the default.

We agree and address each below.

1.The Court Erred as a Matter of Law When It Entered a Default Judgment with Motions Pending that May Have Affected the Parties’ Right to Proceed.

The Defendants argue the court erred when it entered the default final judgment without ruling on the Defendants previously filed motions to set aside default and motion to vacate default. The Plaintiffs brief on appeal did not address this argument.

The Defendants are correct. It was established long ago that a court may not enter a default judgment with an undis-posed motion pending that would affect the plaintiffs right to proceed to judgment. Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Constr. Co., 166 So.2d 889, 890 (Fla. 1964) (citing Cobb v. Trammell, 73 Fla. 574, 74 So. 697 (1917); Dudley v. White, 44 Fla. 264, 31 So. 830 (1902)); see also Goodman v. Joffe, 57 So.3d 1001 (Fla. 4th DCA 2011); Vacation Escape, Inc. v. Michigan Nat. Bank, 735 So.2d 528, 529 (Fla. 4th DCA 1999); Cardiosonx Labs., Inc. v. Aguadilla Med. Services, Inc., 100 So.3d 285, 287 (Fla. 3d DCA 2012); Lakeview Auto Sales v. Lott, 753 So.2d 723 (Fla. 2d DCA 2000).

In this case, both Defendants sent the court a letter denying the allegations against them and later filed a motion to set aside the default and a motion to vacate the default. All of these filings occurred prior to the court’s issuance of the default final judgment. As we held in Vacation Escape, “obviously a favorable determination by the court on appellant’s motion to set aside the ... default would have affected appellee’s right to proceed with its motion for final default judgment.” 735 So.2d at 529-30. Therefore, the court erred as a matter of law when it issued the default judgment notwithstanding the Defendants’ multiple pending motions.

2. The Court Erred as a Matter of Law When It Entered a Default Judgment as a Sanction Without Making a Finding of Willfulness.

The Defendants also argue the court erred by issuing the default final judgment as a sanction because the court failed to make a finding of willfulness. As with the first issue, the Plaintiff did not address this argument in its brief on appeal.

We only briefly address this argument because our supreme court has been clear that an order dismissing a claim as a sanction must “contain an explicit finding of willful noncompliance.” Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla. 1990). The court’s default final judgment fails to comply with this requirement. Therefore, to the extent the court intended the default final judgment as a sanction, the court erred as a matter of law.

3. The Court Erred by Refusing to Consider the Pro Se Correspondence Sent by the Defendants Prior to the Entry of the Default and the Default Final Judgment.

For their final argument, the Defendants argue the court abused its discretion by refusing to consider the letters the Defendants sent to the court.. It does appear that the court originally emphasized the letters were not e-filed, apparently implying it would not consider them. Howevr er, later the court suggested the letters had been considered, Regardless, the default order-was premised on the court’s conclusion that the Defendants failed to file “anything.”

The pro se litigants were not required to electronically file the letters. Pro se parties may “file” pleadings by manually submitting them to the “clerk or court.” Fla. R. Jud. Admin. 2.525(d)(2). The Defendants’ letters were mailed to the “court,” and thus they were “filed” in a manner authorized by Rule 2.525(d)(2).

' There is little authority on this1 specific issue. However, in Greenwood v. Nicklaus, 527 So.2d 964 (Fla. 5th DCA 1988), the court concluded that a defendant’s letter to the court was a paper that precluded the entry of a clerk’s default. Similarly, in another case the Fifth District concluded the circuit court erred when it refused to treat a pro se defendant’s letter denying claims against him as an answer. Kidder v. Hess, 481 So.2d 984, 986 (Fla. 5th DCA 1986).

Both Greenwood and Kidder involved the entry of a clerk’s default. However, the holding in each was that when the court receives a pro se denial in the form of a letter, it should treat the letter as an answer. Here, the court ultimately stated that it had “considered” the letters but only after focusing on the fact that the letters were not e-filed. Further, the court did not strike the letters for failure comply with the pleading rules, or otherwise find the letters to be insufficient. Of course, if the court had stricken the letters or otherwise found them insufficient, the Defendants would have been entitled to notice of the court’s order. Since the court took no action other than to “consider” the letters, the Defendants did not receive the notice to which they would have been entitled.

The rules promulgated by our supreme court specifically allow a pro se filei to submit filings to' the “court.” A pro se filer who complies with the rule is entitled to have the filing accepted by the court. Therefore, the court erred when it entered a default after receiving the pro se letters without providing notice that the letters were being rejected.

Conclusion

The court erred when it entered a default after having received written denials from the Defendants and compounded the error by entering a default final judgment without ruling on the Defendants’ motion to set aside default and motion to vacate default. Therefore, the court’s judgment is reversed and. the case remanded for further proceedings.

Reversed and remanded.

Taylor and Damoorgian, JJ., concur.

      . As an order disposing of a motion that suspended rendition, the court’s order denying the Defendants’ motion for rehearing is not independently reviewable and is reviewed as part of the final judgment. See Fla. R. App. P. 9.130(a)(4).