author: CASANUEVA, Judge.

text:
    William J. TRACEY, III, as Personal Representative of the Estate of Betty I. Tracey, Deceased, Petitioner, v. SWANHOLM CENTRAL, LLC, a Florida Limited Liability Company, d/b/a Brentwood Senior Living Community; Senior Management Advisors, Inc., a Florida Corporation; Walgreen Co., a Foreign Corporation; Florida Door Control, Inc., a Florida Corporation, a/k/a MWG Enterprises, Inc.; Florida Door Control of Orlando, Inc., a Florida Corporation; the Stanley Works Incorporated, a Florida Corporation, d/b/a Stanley Access Technologies, a/k/a Stanley Black & Decker, Inc.; and Stanley Access Technologies, LLC, a Foreign Limited Liability Company, Respondents.
    Case No. 2D16-3835
    District Court of Appeal of Florida, Second District.
    Opinion filed July 19, 2017

      Michael J. Ebin, St. Petersburg; and George J.F. Werner, Ybor City, for Petitioner.
    Amy L. Dilday and Derek M. Daniels of McCumber, Daniels, Buntz, Hartig & Puig, P.A., Tampa, for Respondents Swan-holm Central, LLC, d/b/a Brentwood Senior Living Community; and Senior Management Advisors, Inc.
    Alyssa M. Reiter and Steven Y. Leinicke of Wicker Smith O’Hara McCoy & Ford, P.A., Ft. Lauderdale, for Respondents The Stanley Works Incorporated, d/b/a Stanley Access Technologies, a/b/a Stanley Black & Decker, Inc.; and Stanley Access Technologies, LLC.
    No appearance for remaining Respondents.
   CASANUEVA, Judge.

William J. Tracey, as personal representative of the Estate of Betty I. Tracey, petitions this court for certiorari review of an order denying his motion to consolidate two wrongful death actions. We conclude that the trial court departed from the essential requirements of law in denying the motion and grant the petition,

I.PROCEDURAL HISTORY

Mr. Tracey’s first lawsuit alleged that on May 12, 2011, Ms. Tracey sustained significant injuries when a malfunctioning automatic sliding door at a Walgreens store hit her and knocked her to the ground. The complaint further alleged that as a result of the injuries sustained, in this incident, Ms. Tracey died, on June 6, 2011. The second action alleged that Ms, Tracey, while recuperating at the Brentwood Senior Living Community from the Walgreen accident, sustained aggravated injuries as a result of inadequate care, including another fall on June 3, 2011. After the second fall, Ms. Tracey was transported to the hospital where she died three days later. Mr. Tracey alleged that Brentwood Senior Living Community and the facility management company (hereinafter “Brent-wood”) were -negligent in the treatment of Ms. Tracey and violated her rights as set forth in section 429.28, Florida Statutes (2011).

Mr. Tracey moved-to consolidate the two actions pursuant to Florida Rule of-Civil Procedure 1.270(a). He noted that both lawsuits include wrongful death claims which are based on successive injury-producing incidents involving Ms. Tracey. The lawsuit filed against Brentwood alleges that Brentwood’s actions worsened and aggravated injures which Mis. Tracey suffered in the Walgreen incident. Mr, Tracey alleged that the defendants in both cases proximately caused or contributed to the death of Ms. Tracey..He argued that consolidation would prevent the substantial risk of inconsistent verdicts, because a jury in the Walgreen trial .could find that the second accident caused all the damages, whereas a jury in the Brentwood trial could find that the first accident caused all the damages, thereby causing a repugnant verdict, contrary to manifest justice.

II.CERTIORARI REVIEW STANDARD

We first note that to justify granting certiorari relief from a pretrial order denying a motion to consolidate, “there must be a departure from the essential requirements of law which will cause material injury that cannot be rectified on plenary appeal.” Pages v. Dominguez ex rel. Dominguez, 652 So.2d 864, 866 (Fla. 4th DCA 1995). “The decision to consolidate actions ordinarily falls within the sound discretion of. the trial court.”" Id. However, where the denial of a party’s motion to consolidate two actions could cause repugnant and inconsistent verdicts, such denial is a-departure from the essential requirements of the law, because it could cause material injury that -cannot be remedied on appeal. Tommie v. LaChance, 412 So.2d 439, 441 (Fla. 4th DCA 1982).

III.CONSOLIDATION OF CASES

In a case involving injuries received in two separate automobile accidents that occurred about a month apart, the Florida Supreme Court has held that, the trial court should have consolidated the cases because the damages sustained were not readily apportionable. Lawrence v. Hethcox, 283 So.2d 41, 43-44 (Fla. 1973). In Lawrence, the court, reasoned as follows:

If ... it appears that negligence of both defendants contributed proximately to cause an injury for which plaintiff, is entitled to recover, it may be a matter entailing great difficulty of proof as to the amount, in which each defendant is responsible.... To require separate actions and separate trials in such a situation would enhance the difficulties of proof and tend to obstruct, rather than to promote, justice.

Id. (quoting Kraft v. Smith, 24 Cal.2d 124, 148 P.2d 23, 26 (1944)).

In U-Haul Co. of Northern Florida, Inc. v. White, 503 So.2d 332, 333 (Fla. 1st DCA 1986), the First District addressed a similar situation where the defendants wanted to consolidate three cases that arose from the same incident, the cases were identical in all respects except for damages, and the three cases involved the same counsel for all of the parties. The First District quashed the order denying the motion to consolidate, holding that the interests of judicial economy and the possibility of inconsistent verdicts outweigh any prejudice that might be caused by a delay when the cases were consolidated. Id.

In a case factually similar to the present case, Hickey v. Pompano K of C, Inc., 647 So.2d 270, 271 (Fla. 4th DCA 1994), the complaint alleged that the plaintiff suffered injuries as a result of two separate slip and fall accidents occurring three weeks apart. The plaintiff alleged that the first fall injured her knee and made her more susceptible to the second fall, which aggravated her previous knee injury. The Fourth District held that the tidal court departed from the essential requirements of law in ordering separate trials against the two defendants and that there would be no adequate remedy on appeal. Id. The Fourth District reasoned as follows:

[I]f these cases are tried separately, the jury in the trial arising but of the first accident could well be persuaded that most of the damages resulted from the second accident, and a different jury could determine in the trial arising out of the second accident that most of the damages resulted from the first accident. Since a low verdict, in and of itself, does not require a new trial, it is highly unlikely that the plaintiff would be able ■ to get post-trial or appellate relief. Plaintiff would thus have no adequate remedy by appeal.

Id.

As in Hickey and Lawrence, Mr. Tracey’s complaint against Brentwood alleges that the fall and care at the nursing home aggravated Ms. Tracey’s preexisting injury that occurred at the Walgreens store. Further, the complaints in both cases allege that the injuries that Ms. Tracey sustained as a result of the defendants’ negligence resulted in her death. Following the reasoning in Lawrence and Hickey, if there are two separate trials in the present case, the jury in the Walgreen trial could find that Ms. Tracey’s death resulted from the second fall, an infection, dehydration, and malnutrition, and the jury in the Swan-holm trial could find that Ms. Tracey’s death was the result of thé injuries she sustained at the Walgreéns store. Since a low verdict, in and of itself, would not require a new trial, Mr. Tracey would have no adequate remedy on appeal.

We note that the Fourth District reached the opposite conclusion in Pages, 652 So.2d at 866, which involved an automobile accident in which one passenger was killed and another passenger was permanently and severely brain damaged. The Fourth District held,

A refusal of a trial court to grant consolidation in separate and distinct causes of action, involving separate and distinct damages, is not an abuse of discretion which will automatically result in our granting certiorari relief merely became the actions arise out of the same accident.... In each case the damage considerations are entirely different and unique, both qualitatively and quantitatively. The elements of damages and testimony thereon, including the presentation of expert witnesses, would be separate and distinct for the wrongful death claim and for the personal injury claim.

Id.

In Pages, that court’s reasoning was based on the fact that one claim was for wrongful death and the second claim was for personal injuries. In the present case, both complaints allege that the injuries Ms. Tracey sustained as a result of the defendants’ negligence resulted in her death.

The Fourth District also found that consolidation was not appropriate in Barnes v. Meece, 530 So.2d 958, 959 (Fla. 4th DCA 1988), where the defendant in a wrongful death/personal injury action moved to consolidate his case with a wrongful death/medical malpractice action. One of his affirmative defenses was that the decedent died as a result of the subsequent medical malpractice of the defendants in the malpractice action. Id. at 958. The trial court denied his motion to consolidate, and the defendant filed a petition for writ of certiorari.

The Fourth District did not find merit in the defendant’s argument that two separate trials may result in inconsistent verdicts because, it noted, the defendant had “available the recourse of a separate and independent action for subrogation against the health care providers ....” Id. at 959. The court also noted that complex issues that are likely to arise in a medical malpractice action are not appropriate to interject into a personal injury suit. Id. We note that the reasoning in Barnes does not apply to the case at bar because the present case does not involve a medical malpractice action, and more importantly, Mr. Tracey would have no recourse if separate trials resulted in inconsistent and repugnant verdicts.

In its order, the trial court mistakenly relied on State Farm Florida Insurance Co. v. Bonham, 886 So.2d 1072, 1075 (Fla. 5th DCA 2004), in denying the motion to consolidate. In State Farm, the plaintiff sued the seller and broker of a house alleging that they concealed and failed to disclose sinkhole damage to the home prior to her purchase of it. Id. at 1073-74. She also filed a suit against State Farm, which sought a declaration of her rights under her homeowner’s insurance policy. Id at 1074. Consequently, in State Farm the lawsuits involved different causes of action based on dissimilar theories and featured different measures of damages.

IV. CONCLUSION

Accordingly, the petition for certiorari is hereby granted and the trial court’s order denying the motion to consolidate is quashed.

Petition for writ of certiorari granted.

VILLANTI and KELLY, JJ., Concur.

      . The defendants named in the first lawsuit were Walgreen Co., Florida Door Control, Inc., a/k/a MWG Enterprises, Inc., Florida Door Control of Orlando, Inc., The Stanley Works Inc. d/b/a Stanley Access Technologies a/k/a Stanley Black & Decker, Inc., and Stanley Access Technologies, LLC.

      . The defendants named in the second lawsuit were Swanholm Central, LLC, d/fa/a Brent-wood Senior Living Community, and Senior Management Advisors, Inc.


source: Caselaw Access Project

author: LaROSE, Chief Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. M.C., Appellee.
    Case No. 2D15-2734
    District Court of Appeal of Florida, Second District.
    Opinion filed July 19, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellee.
   BY ORDER OF THE COURT:

Appellee, M.C., has filed a motion for rehearing and a motion to dismiss. We grant the motions. The opinion dated February 10, 2017, is withdrawn, and the attached opinion is substituted therefor. No further motions for rehearing will be entertained in this appeal.

LaROSE, Chief Judge.

The trial court granted the motion to suppress evidence after it began to hear evidence in the case. It later dismissed the case. Therefore, we must dismiss the appeal. See State v. Gaines, 770 So.2d 1221, 1225 (Fla. 2000) (“[Wjhen a trial court grants a motion to suppress evidence during trial, jeopardy has already attached and a defendant’s constitutional protections against being placed in double jeopardy are implicated.” (citing State v. Livingston, 681 So.2d 762, 764 (Fla. 2d DCA 1996))); W.B.S. v. State, 851 So.2d 802, 804 (Fla. 2d DCA 2003) (“In a nonjury trial, jeopardy attaches when the court begins to hear evidence.” (citing R.A.C. v. State, 736 So.2d 718 (Fla. 2d DCA 1999))).

This case is dismissed.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: PER CURIAM.

text:
    Howard Adam FOX, Appellant, v. HAMPTONS AT METROWEST CONDOMINIUM ASSOCIATION, INC., Appellee.
    Case No. 5D16-1822
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017

      Howard Adam Fox, Orlando, Pro Se.
    James S. Byrd, Jr., of James S. Byrd, PA, Orlando, for Appellee.
   PER CURIAM.

Howard Adam Fox appeals the trial court’s order finding him guilty of civil contempt of court for violating a settlement agreement he entered into with the Hamptons at Metrowest Condominium Association, Inc. (Association). Fox argues that portions of the contempt order constitute a prior restraint on protected speech under both the Florida Constitution and United States Constitution. We agree.

Fox resides at the Hamptons at Me-troWest (Hamptons),- a condominium complex managed by the Association. The Association filed a verified complaint that was later amended, seeking injunctive relief against Fox. The complaint alleged, inter alia, that Fox violated section 718.303, Florida Statutes (2015), by failing to comply with the Hamptons’ Declaration and rules and regulations thereby causing irreparable harm to homeowners, renters, and guests of the Hamptons,- the Association, and its representatives. The complaint further alleged that Fox engaged in a continuous course of conduct designed and carried out for the purpose of harassing, intimidating, and threatening other residents, the Association, and its representatives. After the trial' court granted the preliminary injunction ex parte, the parties reached a settlement agreement in which Fox agreed to cease certain actions. Consequently, the trial court entered. a final judgment enforcing the settlement, agreement and dismissing with prejudice all claims raised by either party. However, it retained jurisdiction to enforce the settlement agreement.

Soon thereafter, 'the Association filed a motion for contempt, alleging that Fox had willfully and intentionally violated the terms of the settlement agreement and final’'judgment. After a hearing, the trial court found Fox in civil contempt. In addition to enforcing the provisions of the settlement agreement, the trial court further ordered Fox to stop posting, circulating, and publishing any pictures or personal information about current or future residents, board members, management, employees or personnel of the management company, vendors of the Hamptons, or any other management company of the Hamp-tons on any website, blog, or social media. He was further ordered to take down all such information currently on any of his websites or blogs. The trial court also prohibited Fox from starting any new blogs, websites or social media websites related to the Hamptons or the Association. It informed Fox that, as his punishment, if someone asked him on his social media page if he enjoyed living at the Hamptons, he could not post a response online. Instead, he would have to call the person to express his concerns. Notably, these amendments to the settlement agreement appear to be permanent. Fox insists that the amendments, imposed as his punishment, violate his right to speak freely. We agree that a blanket prohibition of his online speech constitutes an unconstitutional prior restraint on free speech.

Both the United States Constitution and the Florida Constitution prohibit laws that curtail the freedom of speech or the freedom of the press. Amend. I, U.S. Const. (“Congress shall make no law ... abridging the freedom of speech, or of the press.”); Art. I, § 4, Fla. Const. (“Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right.”). “A prior restraint on publication, or censorship of information that has already been published, is presumptively unconstitutional under the First Amendment.” Palm Beach Newspapers, LLC v. State, 183 So.3d 480, 482-83 (Fla. 4th DCA 2016) (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)). It has been established that “[p]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Vrasic v. Leibel, 106 So.3d 485, 486-87 (Fla. 4th DCA 2013) (quoting Stuart, 427 U.S. at 559, 96 S.Ct. 2791). “Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993); see also Vrasic, 106 So.3d at 486-87.

In fact, “[w]here matters of public concern are involved, privacy interests give way to the First Amendment right to publish lawfully obtained, truthful information about such matters.” Palm Beach Newspapers, 183 So.3d at 483 (citing Bartnicki v. Vopper, 532 U.S. 514, 534, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (“[Privacy concerns give way when balanced against the interest in publishing matters of public importance.”); The Fla. Star v. B.J.F., 491 U.S. 524, 536-37, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (stating that a news report about a criminal prosecution is “a matter of public significance”); Gawker Media, LLC v. Bollea, 129 So.3d 1196, 1200-02 (Fla. 2d DCA 2014)). The United States Supreme Court has “consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern.” United States v. Cassidy, 814 F.Supp.2d 574, 582 (D. Md. 2011). “This is because ‘in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide “adequate ‘breathing space’ to the freedoms protected by the First Amendment.’ ” Id. (quoting Boos v. Barry, 485 U.S. 312, 322, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)). “[Ojnline speech is equally protected under the First Amendment as there is ‘no basis for qualifying the level of First Amendment scrutiny that should be applied’ to online speech.” Id. (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)); see also Obsidian Fin. Grp., LLC v. Cox, 812 F.Supp.2d 1220, 1222 (D. Or. 2011), aff'd 740 F.3d 1284 (9th Cir. 2014) (finding statements on blog constituted opinion speech protected by First Amendment).

Yet, the right to free speech and the freedom of the press are not without their limits. Indeed, “[t]here is not in existence any right, constitutional or otherwise which does not carry with [it] an equal and balancing amount of responsibility.” Firstamerica Dev. Corp. v. Daytona Beach News-Journal Corp., 196 So.2d 97, 101 (Fla. 1966). Freedom of speech does not extend to obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct. Cassidy, 814 F.Supp.2d at 582-83. “Speech that does not fall into these exceptions remains protected.” Id. at 583 (citing United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010)).

Importantly, “[n]o prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court.” Org. for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Procter & Gamble Co. v. Bankers Tr. Co., 78 F.3d 219, 225 (6th Cir. 1996) (“The private litigants’ interest in protecting their vanity or their commercial self-interest simply does not qualify as grounds for imposing a prior restraint.”). Instead, “[subsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context.” CBS, Inc. v. Davis, 510 U.S. 1315, 1318, 114 S.Ct. 912, 127 L.Ed.2d 358 (1994). This is because “[a] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.” Vrasic, 106 So.3d at 487 (quoting Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975)); See also Matter of Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986) (“If a publisher is to print a libelous, defamatory, or injurious story, an appropriate remedy, though not always totally effective, lies not in an injunction against -that publication but in a damages or criminal action after publication.”).

In this case, the trial court erred when it prohibited Fox from making any statements whatsoever pertaining to the Hamptons or to the Association on his websites, blogs, and social media websites without conducting a proper constitutional inquiry. Accordingly, we reverse the portions of the contempt order prohibiting Fox from posting on any website, blog, or social media, and remand for further proceedings. However, we conclude that the trial court did not err when it enforced the agreed upon terms of the settlement agreement and affirm the contempt order in that respect.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, TORPY and BERGER, JJ„ concur.

      . Fox utilized the internet to voice his displeasure over the quality of life at the Hamptons.

      . Although Fox is not working for a newspaper or magazine, “press includes not only newspapers, books, and magazines, but also humble leaflets and circulars .... [One does] not have to be a card carrying member of the Associated Press or the New York Times to be entitled to the protection of the First Amendment.” Town of Lantana v. Pelczynski, 290 So.2d 566, 569 (Fla. 4th DCA 1974), aff'd, 303 So.2d 326 (Fla. 1974) (citing Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938)).

      . On remand, the trial court should keep in mind that ‘‘[a] content-based restriction on protected speech must survive strict scrutiny.” Cassidy, 814 F.Supp.2d at 583 (citing United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)), In most cases, where "the provision focuse[s] only on the content of the speech and the direct impact that speech ha[s] on viewers, the provision [is] a content-based restriction.” Id. at 584. "To survive strict scrutiny, the Government has the burden of showing that a content-based restriction 'is necessary to serve a compelling state interest.’” Id. (citing PSINet Inc. v. Chapman, 362 F.3d 227, 234 (4th Cir. 2004)). Notably, it has been held that "preventing the use of the Internet and other interactive computer services to inflict emotional distress on others serves an important governmental interest." Id. at 585. However, "Twitter and Blogs are today’s equivalent of a bulletin board that one is free to disregard, in contrast, for example to e-mails or phone calls directed to a victim.” Id. (citing United States v. Bowker, 372 F.3d 365, 378 (6th Cir. 2004) (contrasting why a federal telephone harassment statute serves .a compelling governmental interest and a statute that made it a criminal offense for three or more persons to assemble on a sidewalk and to be "annoying” to a passerby did not serve a compelling governmental interest)).


text:
    Maureen CLANCY, ML, LLC, and Clancy Company, Inc., Appellants, v. Stephen SMITH and Dorothy Smith, Appellees.
    CASE NO. 1D16-4881
    District Court of Appeal of Florida, First District.
    Opinion filed July 24, 2017
    Justin I. Remol of Dowd Law Firm, P.A., Fort Walton Beach, for Appellants.
    Byro.n E. Cotton of Cotton <& Gates,' Shalimar, for Appellees.
   PER CURIAM.

We affirm the trial court’s determination that Appellees were entitled to an' award of attorneys’ fees and costs for having to file a motion for protective order and for having to respond to a motion to compel” discovery. However, it was error for the trial court to award attorneys’ fees without making findings concerning the' reasonableness of either the hourly rate or the number of hours expended. See Parton v. Palomino Lakes Prop. Owners Ass’n, Inc., 928 So.2d 449, 453 (Fla. 2d DCA 2006) (holding that an order awarding fees without making specific findings about the hourly rate, and the number of hours reasonably expended was fundamentally flawed); Morton v. Heathcock, 913 So.2d 662, 669 (Fla. 3d DCA 2005) (requiring fee awards to be supported by evidence detailing the nature and extent of the services performed and by expert testimony regarding the reasonableness of the fee); Nants v. Griffin, 783 So.2d 363, 366 (Fla. 5th DCA 2001) (holding that the moving party should submit time sheets and der tailed billing statements to establish the amount'of work performed and the time to perform each task). Accordingly, we reverse the award of attorneys’ fees and remand for further proceedings consistent with this opihion.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, KELSEY, and JAY, JJ., CONCUR.


author: WINSOR, J.

text:
    Jeffrey MILLETTE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-2150
    District Court of Appeal of Florida, First District.
    Opinion filed July 26, 2017

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon Trader, Assistant Attorney General, Tallahassee, for Appellee.
   WINSOR, J.

A jury convicted Jeffrey Millette of sexual battery by a person in a position of familial or custodial authority. On appeal, Millette contends the State’s discovery violation warrants a new trial. We conclude that it does, so we reverse.

I.

Millette’s teenage daughter told the jury that she lived with her mother but periodically visited Millette’s home. During one visit, when she was just fourteen, she woke up to find Millette on top of her, raping her. In pain and in shock, she pretended she was asleep and waited for Millette to stop. He finally did stop, and he left the room. The daughter returned as planned to her mother’s home the next day but did not immediately report the assault. A few weeks later, she told a close friend what had happened. She then reported it to her mother and her guidance counselor.

Millette’s defense was that it never happened. His lawyer argued that the daughter had reasons to fabricate the whole story, that she once suggested she may have dreamed it all, and that there were still other reasons to disbelieve her testimony. Millette’s lawyer also noted that there was no physical examination afterward, arguing that a timely exam could have shed light on whether there had been abuse.

There was no physical evidence, so the case ultimately came down to whether jurors believed the child. They obviously did, which brings us to this appeal.

II.

Millette argues he is entitled to a new trial because he was prejudiced by the State’s undisclosed expert testimony. At trial, the State called a member of the State’s child-protection team who had not been disclosed as an expert. After the witness testified about her background and qualifications, the State tendered her as a medical expert. Over Millette’s objection, the court allowed the witness to testify that, in her medical opinion, a physical examination of the daughter likely would not have shown signs of sexual abuse, whether there had been abuse or not.

In arguing that the court should allow the testimony, the State insisted it was critical because without it, “some juror is going to go, oh, all you had to do was take her to a doctor and then we would know, end of case, and so it has to be not guilty.” The court agreed to allow it, but first gave Millette’s counsel the1 afternoon to depose the expert and to otherwise prepare for her testimony.

During a Richardson hearing the following morning, the defense argued it was prejudiced because it had no time to obtain its own expert to contradict the State’s. The court nonetheless found no prejudice and allowed the witness to testify.

III.

The State concedes there was a discovery violation. The only issue left is whether there was prejudice that requires a new trial. On this score, we have previously noted the “very high bar” for excusing the State’s discovery violations. See Debord v. State, 152 So.3d 788, 789 (Fla. 1st DCA 2014). Courts will find procedural prejudice “if there is a reasonable possibility that ’ the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.” State v. Schopp, 653 So.2d 1016, 1020 (Fla. 1995). After a careful review of the record, we cannot conclude there was no reasonable possibility that Millette’s trial preparation or strategy would have been materially different had the State properly disclosed its intent to introduce expert testimony. Millette is therefore entitled to a new trial. See Debord, 152 So.3d at 789; see also Bess v. State, 208 So.3d 1213, 1215 (Fla. 5th DCA 2017).

REVERSED and REMANDED for a new trial.

RAY and WINOKUR, JJ., CONCUR.

      . The close friend, mother, and guidance counselor all testified at trial.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).

      . Florida decisions have not always used consistent language in reciting the standard, some saying "reasonable possibility” preparation or strategy would differ, and some saying "reasonable probability.” See, e.g., Dabbs v. State, — So.3d -, -, 42 Fla. L. Weekly D1310, D1310, 2017 WL 2457253 (Fla. 4th DCA June 7, 2017) ("reasonable probability”); T.J. v. State, 57 So.3d 975, 977 n.2 (Fla. 3d DCA 2011) ("reasonable possibility”). The Florida Supreme Court has been inconsistent, too, at one point misquoting itself. See, e.g., Pomeranz v. State, 703 So.2d 465, 468 (Fla. 1997) (misquoting Schopp as saying "if there is a reasonable probability that the defendant’s trial preparation or strategy would have been materially different ..,.” (emphasis added) although Schopp, 653 So.2d at 1020 said "reasonable possibility”).
      To the extent there is any meaningful difference between a “reasonable possibility” and a “reasonable probability”—an interesting side issue for some other time, compare Newport News Shipbuilding & Dry Dock Co. v. NLRB, 608 F.2d 108, 111 (4th Cir. 1979) ("[W]e think that ... ‘reasonable probability' (as used by the Board), and 'reasonable possibility' (as used in decided cases) are largely synonymous. ) with Atlas Bldg. Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 957 (10th Cir. 1959) (noting "the Supreme Court has deliberately adopted 'reasonable possibility' over the more positive ‘reasonable probability' to indicate the required quantum of proof”); see also Strickler v. Greene, 527 U.S. 263, 300-01, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (Souter, J., concurring) (noting that "reasonable possibility” and "reasonable probability” "express distinct levels of confidence” but suggesting that “it is misleading in Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] cases to use the term 'probability,' which is naturally read as the cognate of 'probably' and thus confused with 'more likely than not’ ”); cf. also Mungin v. State, 79 So.3d 726, 738 (Fla. 2011) (highlighting "probability” and "possibility” in concluding that the materiality prong of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) "is more defense-friendly than in a Brady claim”)—the Florida Supreme Court has established "reasonable possibility” as the standard we must apply. See Schopp, 653 So.2d at 1020. Our decision, though, would be the same whether it turned on a "reasonable possibility” or a “reasonable probability,”


text:
    BRIC MCMANN INDUSTRIES, INCORPORATED, a Louisiana corporation, Appellant, v. REGATTA BEACH CLUB CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, and Albert Docobo, Appellees.
    Case No. 2D16-1067
    District Court of Appeal of Florida, Second District.
    Opinion filed July 28, 2017.
    Jason A. Herman of Herman & Wells, P.A., St. Petersburg, for Appellant.
    Yvette R. Lavelle, W. Todd Boyd, and Marisa E. Wiggins of Boyd Richards Parker & Colonnelli, P.L., Miami, for Appellee Regatta Beach Club Condominium Association, Inc.
    No appearance for Appellee Albert Do-cobo.
   PER CURIAM.

Brie McMann Industries, Inc. (BMI), appeals the dismissal with prejudice of its nine-count complaint against Regatta Beach Club Condominium Association, Inc. (the Association), for failure to state a cause of action. BMI purchased seven commercial condominium units at the Regatta Beach Club. For approximately a decade, BMI and ,the Association have been engaged in litigation due to the Association’s alleged efforts to prevent BMI from using its commercial units. The parties executed a settlement agreement in 2010, but the agreement did not end the litigation, and multiple portions of the agreement were ultimately held unenforceable by the trial court, in a prior proceeding. In its operative complaint, BMI alleges nine counts’ worth of contractual breaches and torts committed by the Association in the course of repeatedly preventing BMI from using its commercial condominium units.

After de novo review and the benefit of oral argument, we affirm without comment the trial court’s dismissal with prejudice of Count IV (fraudulent misrepresentation) and Count VI (unjust enrichment). And, as BMI concedes in its initial brief, portions of Count I (breach of contract) were properly dismissed. Specifically, BMI agrees it cannot state a breach-of-contract claim based on breaches of paragraphs 2(C)(10)— (14) and portions of paragraph 2(C)(6) of the settlement agreement.

However, we reverse the trial court’s dismissal with prejudice of the alleged breaches in Count I which pertain to the rest of the settlement agreement. Likewise, we reverse the trial court’s dismissal with prejudice of Count II (tortious interference), Count III (breach, of express warranty), Count V (trespass), Count VII (failure to maintain common elements/breach of contract), Count VIII (tortious interference with a business relationship), and Count IX (tortious interference with a business relationship). See generally Murphy v. Bay Colony Prop. Owners Ass’n, 12 So.3d 924, 926 (Fla. 2d DCA 2009) (“When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the material allegations as true and is bound to a consideration of the allegations found within the four corners of the complaint.”).

Affirmed in part; reversed in part; remanded for further proceedings.

VILLANTI, WALLACE, and BADALAMENTI, JJ., Concur.

      . Count I relates to the Association’s multiple, alleged breaches of the 2010 settlement agreement between BMI and the Association. On appeal, BMI concedes that paragraphs 2(C)(10)-(14) and portions of paragraph 2(C)(6) of the settlement agreement were held to be unenforceáble by the trial court in a prior proceeding, Accordingly, BMI agrees that it cannot state a breach-of-.contract claim as to any of the unenforceable language in the settlement agreement. However, the breaches alleged in Count I are not limited to the unenforceable portions of the settlement agreement, and BMI may still be able to state a breach-of-contract claim as to those parts of the settlement agreement which the trial court never held to be unenforceable.


author: EDWARDS, J.

text:
    Kenneth Mathew DYAL, Appellant, v. Lisa Fleur DYAL, Appellee.
    Case No. 5D17-848
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 28, 2017
    Michael M. Kest, of Kest Law, PLLC, Winter Park, for Appellant.
    Eugene B. Nichols and Kyle Bedran, of Nichols & Pina, LLLP, Jacksonville, for Appellee.
   EDWARDS, J.

Kenneth Mathew Dyal (“Plaintiff’) appeals the trial court’s order granting Lisa Fleur Dyal’s (“Defendant”) oral motion to transfer venue. Plaintiff argues that the trial court erred in granting Defendant’s oral motion. We agree, reverse the order transferring venue to St. Johns County, and remand for further proceedings consistent with this opinion.

Plaintiff and Defendant divorced in October 2014. Plaintiff alleged in his complaint that before, during, and after the marriage, he was employed by Walt Disney World and received a limited number of free park-hopper admissions to Disney World parks as an employee benefit.

During the marriage, Plaintiff provided Defendant with a spouse pass that she could use while they were married to utilize the limited number of free admissions allocated to Plaintiff. Plaintiff alleged in his complaint that when they divorced, he told Defendant not to use the spouse pass and requested that she return it to him. However, according to the complaint, Defendant repeatedly continued to use her spouse pass, and exhausted the limited number of free admissions, depriving Plaintiff of that valuable employee benefit.

Plaintiff sued Defendant for conversion and civil theft. In his complaint, he alleged that venue was proper in Orange County and that Defendant resided in Duval County; Defendant admitted both of these allegations in her answer. However, Defendant also asserted that Duval County was the more appropriate venue. Defendant filed a motion to transfer venue, to Duval County to serve the convenience of the parties and the interest of justice. Plaintiff responded to that motion, asserting, among other things, that Duval County was an inconvenient venue.

A hearing was held during which Defendant apparently abandoned her motion to transfer venue to Duval County and orally moved to transfer venue to St. Johns County. The trial court denied the written motion to transfer venue to Duval County, but granted the oral motion, finding that venue was proper in St. Johns County. Plaintiff thereafter filed a motion for reconsideration regarding Defendant’s oral motion. Plaintiff asserted that Defendant’s oral motion had not been properly noticed for hearing, thus denying Plaintiff due process by granting relief not requested in the pleadings. Plaintiff also asserted that Defendant waived any claim of improper venue. The court denied the motion for reconsideration. Although there was no court reporter present, and thus no transcript of the hearing, the trial court’s order, the appendices, and the parties’ briefs confirm these events.

The trial court’s order cannot be sustained as a transfer based upon an initially improper choice of venue as the case could not properly have been commenced in St. Johns County. Section 47.011, Florida Statutes (2016), explains where an action may be brought: “Actions shall be brought only in the county where [1] the defendant resides, [2] where the cause of action accrued, or [3] where the property in litigation is located.” First, Defendant admittedly resided in Jacksonville, located in Duval County, at the inception of the case. Second, as Plaintiff argued in his motion for reconsideration, the cause of action accrued in Orange County because that is where he first suffered injury when Defendant allegedly wrongfully used the spouse pass. See McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 509 (Fla. 4th DCA 2010) (“[A] tort accrues in the county where the plaintiff first suffers injury.” (citations omitted)). Third, the “location of the property in litigation” provision does not apply here because the free admissions to Disney and the spouse pass are personal property, not real property. See Zur v. Air Orlando Sales, Inc., 751 So.2d 726, 727 (Fla. 5th DCA 2000) (“The statutory provision allowing venue where ‘the property in litigation is located,’ generally pertains to immobile real property, as opposed to mobile, personal property.”). Furthermore, Defendant waived the defense of improper venue because she did not contest, but in fact agreed, in her answer that Orange County was a proper venue. See Fla. R. Civ. P. 1.140(b)(3), (h)(1).

The trial court’s order transferring venue from Orange County to St,- Johns County cannot be sustained based upon forum non conveniens, as Defendant argues in her brief, because the order is fundamentally erroneous on its face. Section 47.122, Florida Statutes (2016), which addresses forum non conveniens, states, “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” As noted above, this case could not properly have been initiated in St. Johns County, based upon section 47.011, Florida Statutes (2016).

For the reasons set forth above, we find that the trial court erred in ordering the case transferred from Orange County to St. Johns County. We reverse the order granting Defendant’s oral motion to transfer venue to St. Johns County, instruct the trial court to enter an order denying Defendant’s motions to transfer venue, and remand for further proceedings consistent with this opinion. . .

REVERSED and REMANDED.

WALLIS and EISNAUGLE, JJ., concur.

      . ’ Defendant concedes that no witnesses testified at the hearing regarding any issues relevant to forum non conveniens,


author: PER CURIAM.'

text:
    David Lee MASON, Jr., Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0539
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017.
    David Lee Mason Jr,, pro se, Petitioner.
    . Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.'

Petitioner is granted a belated appeal of the judgments and sentences rendered on December 17, - 2015, and January 7, 2016, in Escambia, .County Circuit Court case number 2014-GF-004474-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit.-.court for treatment as-the notice of appeal. Fla, R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, WINOKUR, and JAY, JJ., CONCUR.


author: WOLF, J.

text:
    Matthew Dale MCDONALD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5726
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   WOLF, J.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant challenges the trial court’s orders revoking his probation and sentencing him to 5 years in prison for the underlying offense of aggravated assault with the intent to commit a felony. We affirm but remand for the trial court to correct a scrivener’s error in the order of revocation that states appellant violated conditions 5 and 35 of the order of probation. It should state that he violated condition 5 and special condition 12.

AFFIRMED and REMANDED for entry of a corrected order.

ROWE and KELSEY, JJ., CONCUR.


text:
    Golden VASQUEZ, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    CASE NO. 1D16-4515
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017.

      Golden Vasquez, pro se, Petitioner.
    Kenneth S. Steely, General Counsel, Gayla Grant and Sheron Wells, Assistant General Counsels, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

. Golden Vasquez seeks a writ of mandamus to compel the circuit court to reopen the petition for writ of habeas corpus case file. The lower tribunal entered an order administratively closing the file upon the belief that Vasquez had filed a notice of appeal, divesting the court of jurisdiction. However, as Vasquez asserts, and as the respondent concedes, no such notice of appeal has been filed. Accordingly, the lower tribunal is directed to reopen the case file and to dispose of the pending petition forthwith.

LEWIS, WETHERELL, and ' OSTERHAUS, JJ., CONCUR.


text:
    Ben Lamont DENSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1627
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017.
    Ben Lamont Denson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


text:
    Jeffery C. GREEN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0623
    District Court of Appeal of Florida, First District.
    Opinion filed August 1, 2017
    Jeffery C. Green, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


text:
    Sandy V. ALSTON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2823
    District Court of Appeal of Florida, First District.
    Opinion filed August 3, 2017
    Sandy V. Alston, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

ROWE, MAKAR, and JAY, JJ., CONCUR.


author: PER CURIAM. WETHERELL, J.,

text:
    Dionel RODRIGUEZ, Petitioner, v. IPC INTERNATIONAL CORPORATION and Liberty Mutual, Respondents.
    CASE NO. 1D17-0210
    District Court of Appeal of Florida, First District.
    Opinion filed August 7, 2017
    Martha D. Fornaris of Fornaris Law Firm, P.A., Coral Gables, for Petitioner.
    Kip O. Lassner and Daniel M. Schwarz of Cole, Scott & Kissane, P.A., Plantation, for Respondents.
   PER CURIAM.

DISMISSED.

LEWIS and WINSOR, JJ., CONCUR; WETHERELL, J. CONCURS WITH OPINION.

WETHERELL, J.,

concurring.

I agree that the petition seeking review of the order denying the claimant’s motion to determine his competency must be dismissed because the claimant did not establish the irreparable harm necessary for certiorari review. See F.T.M.I. Operator, LLC v. Limith, 140 So.3d 1065, 1067 (Fla. 1st DCA 2014). However, in my view, even if the claimant had established the requisite irreparable harm, the petition would have been denied because the record establishes that the judge of compensation claims (JCC) applied the correct law and reasonably based her finding that the claimant failed to prove that he was incompetent on the overwhelming evidence that the claimant was malingering and feigning his mental condition. The argument to the contrary in the petition is, in my view, nothing more than a thinly-veiled request for this court to reweigh the evidence presented to the JCC. That, however, is not the proper function of this court, particularly in an extraordinary writ proceeding.

With these additional observations, I concur in the disposition of this case.


author: ■ PER CURIAM.. .

text:
    WHITNEY BANK, a Mississippi state chartered bank, formerly known as Hancock Bank, a Mississippi state chartered bank, as assignee of the FDIC as receiver for Peoples First Community Bank, a Florida banking corporation, Appellant, v. Von Daniel GRANT, Jr., and Lisa D. Grant, Appellees.
    CASE NO. 1D16-5112
    District Court of Appeal of Florida, First District.
    Opinion filed August 7, 2017
    Michael Anthony Shaw and Joseph D. Steadman, Jr., of Jones Walker LLP, Miami, for Appellant.
    Jeffrey P. Whitton, Panama City, for Appellees.
   ■ PER CURIAM.. .

Whitney Bank appeals the trial court’s-order granting summary judgment in favor of Von Daniel Grant, Jr., and Lisa D. Grant, and adjudging that Whitney Bank’s cause of action seeking damages from alleged breaches of two promissory notes is barred by the one-year statute of limitations in section 95,ll(5)(h), Florida Statutes (2015). Because we conclude that section 95.11(5)(h) does not apply to the current cause of action, we reverse.

The pleadings and summary judgment evidence presented below reveal the following. On June 29, 2005, the Grants borrowed $240,600 from Peoples First Community Bank, verifying the debt with a note and securing the note with a mortgage on the Grants’ principal residence. On November 27, . 2006, the Grants borrowed an additional $25,000 from Peoples First, executing a credit agreement with the bank that included a balloon payment due on December 15, 2011. The amount borrowed was secured by a second mortgage on the residence.

Three years later, in December 2009, the federal Office of Thrift Supervision closed Peoples First Community Bank and appointed the Federal Deposit Insurance Corporation as the bank’s receiver. In turn, the FDIC transferred certain assets belonging to the bank—including each of the Grants’ promissory notes—to Hancock Bank by way of an allonge.

On December 1, 2010, the Grants defaulted on the June 2006 promissory note by failing to make the installment payment due on that date and on every subsequent installment date. Also, they did not-make the balloon payment due in December 2011 as required by the 2006 note. In April 2012, Hancock Bank and the Grants-executed . a “revised short sale approval” agreement, under which Hancock Bank approved the Grants’ “request for the Pre-Foreclosure Sale.” According to the terms of the agreement, the sales price of the residence -was $190,000. After the amounts still owed on the unpaid balances of the 2005 and 2006 debts were deducted from the sales price, along with closing costs and a broker’s commission, the agreement reflected an “Estimated Deficiency Balance” of $99,377.70. The agreement also provided that the Grants would “receive no proceeds” from the sale and Hancock Bank “reserve[d] the right to pursue the deficiency balance owed.” The closing took place on May 11,2012.

Two' years later, in April 2014, Whitney Bank merged its charter with that of Hancock Bank and, as a result, Hancock Bank changed its name to Whitney Bank. By letter dated November 30, 2015, Whitney Bank notified the Grants that they were in default under the June 2005 promissory note and afforded them the opportunity to cure the default. Whitney Bank also advised that if the default was not cured, it could, at its option, accelerate the indebtedness due under the note. The Grants failed to cure the default.

Thereafter, pn January 15, 2015, Whitney Bank filed a Verified Complaint containing two counts. Count I alleges that the Grants breached the 2005 promissory note and avers that Whitney Bank, as holder of the note, is entitled to enforce it. Count I seeks a.-judgment for the unpaid balance owed on the note in the principal amount of $45,069.41, plus accrued interest, late fees, costs of collection, and attorneys’ fees. In turn, .Count II alleges a breach of the 2006 promissory note, and likewise seeks a judgment for the unpaid balance owed on the note in the principal amount of $23,634.67, along with accrued interest, late fees, costs of collection, and attorneys’ fees.

After the Grants filed their Answer to the Verified Complaint, the parties filed cross motions for summary judgment. In their motion, the Grants urge that Whitney Bank’s cause of action is barred by the one-year statute of limitations in section 95.11(5)(h). That subsection states:

An action to enforce a claim of a deficiency related to a note secured by a mortgage against a residential property that is a one-family to four-family dwelling unit. The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.

§ 95.11(5)00, Fla. Stat. (2015). The Grants’ argument reads the foregoing statute in pari materia with section 702.06, Florida Statutes (2015), which provides that “[i]n all suits for the foreclosure of mortgages,’’ the trial court, in its discretion, may enter a deficiency decree. But, “in the case of an owner-occupied residential property, the amount of the deficiency may not exceed the difference between ..., [ ] in the case of a short sale, the outstanding debt, and the fair market value of the property on the date of sale.” Based on the “short sale” language, the Grants maintain that since Whitney Bank’s cause of action is for alleged deficiencies due following a short sale of their single-family dwelling, the action must be brought within the one-year limitations period of section 95.11(5)(h), which references deficiencies, or it is barred.

Whitney Bank responds to this argument by emphasizing that the current action is one for a breach of a contract/written instrument; no foreclosure or deed in lieu of foreclosure was ever involved. As a result, it urges the five-year statute of limitations period in section 95.11(2)(b), Florida Statutes (2015), applies.

Section 95.11(2)(b) provides in relevant part that “[ajctions other than for recovery of real property shall be commenced as follows”:

(2) Within five years.—
(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument ... except for an action for a deficiency judgment governed by paragraph (5)(h).

§ 95.11(2)(b), Fla. Stat. (2015).

The trial court agreed with the Grants and held that the one-year statute of limitations barred Whitney Bank’s cause of action. Significantly, it noted the following:

The parties do not dispute that the present action is one to enforce claims of deficiency related to notes secured by mortgages against a residential one-family dwelling unit. However, [Whitney Bank] argues the language used in section 95.11(5)(h) to describe the commencement of the limitations period indicates that this section is applicable only to foreclosures and deeds in lieu of foreclosure.

In evaluating the bank’s argument, the trial court acknowledged the fundamental principle of statutory construction that directed it to resort to the “clear and unambiguous” language of section 95.11(5)(h), see, e.g., State v. Hackley, 95 So.3d 92, 93 (Fla. 2012), and precluded it from “looking] behind the statute’s plain language for legislative intent or resortfing] to rules of statutory construction to ascertain intent.” See State v. Burris, 875 So.2d 408, 410 (Fla. 2004). Nonetheless, it did just that by analyzing the unambiguous language of section 95.11(5)(h) through the lens of legislative intent and resorting to rules of statutory construction when it stated:

Although neither of the two events identified in section 95.11(5)(h) would occur in the context of a short sale [i.e., “the day after the certificate (of foreclosure) is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure”], this does not demonstrate a clear intent to exclude actions that would otherwise fall squarely within the plain language of this section. ... In the case of a short sale, the lender’s right to pursue a deficiency judgment accrues once the sale has occurred. See § 702.06, Fla. Stat. (the amount of deficiency after a short sale is measured by the difference between the outstanding debt and the fair market value of the property on the date of sale). In the present case, [Whitney Bank’s] right to seek a deficiency judgment accrued after the short sale in 2012. Under section 95.11(5)(h), [Whitney Bank’s] claims are barred.

“Questions of statutory interpretation are matters of law that are reviewed de novo.” Green v. Cottrell, 204 So.3d 22, 26 (Fla. 2016). When construing a statute, the first place a court looks “is to its plain language—if the meaning of the statute is clear and unambiguous, [a court] look[s] no further.” Hackley, 95 So.3d at 93 (citing Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1220 (Fla. 2010)). We are reminded that

[i]t is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language. ... If the legislature did not intend the results mandated by the statute’s plain language, then the appropriate remedy is for it to amend the statute.

Overstreet v. State, 629 So.2d 125, 126 (Fla. 1993) (internal quotation marks and citation omitted). In the present case, the trial court’s analysis applies the first sentence of section 95.11(5)(h), but fails to properly consider the plain language of the second sentence.

Our review of section 95.11(5)(h) leads us to an interpretation contrary to the that reached by the trial court. The unambiguous language of section 95.11(5)(h) states that a cause of action accrues under its terms on “the day after the certificate [of foreclosure] is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.” Under the circumstances of the present case, where a short sale was held in lieu of foreclosure, neither of these two predicates occurred: there was no certificate of foreclosure issued by the clerk and there was no deed in lieu of foreclosure. Only by looking beyond the plain language of section 95.11(5)(h) may one arrive at the interpretation advanced by the trial court and the Grants.

In reaching our conclusion, we are also persuaded by the logic applied by the Fifth District in its recent decision in Bush v. Whitney Bank, 219 So.3d 257 (Fla. 5th DCA 2017)—a case based on facts nearly identical to those in the instant case. In Bush, the Fifth District affirmed the trial court’s ruling that section 95.11(5)(h) did not apply to bar the bank’s cause of action seeking damages for the borrower’s breach of a promissory note following an agreed-to short sale. The Fifth District acknowledged—as do we—that if the meaning of a statute is clear and unambiguous, we look no further. Id. In applying the statute’s unambiguous language, the Fifth District looked to the second sentence of section 95.11(5)(h) to define the meaning of the first sentence, holding that the second sentence

clarifies the scope of the first sentence by providing: “The limitations period shall commence on the day after the certificate is issued by the clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.” ... Accordingly, the limitations period is triggered by one of two events: 1) issuance of certificate by clerk or 2) acceptance of deed in lieu of foreclosure by mortgagee. After a short -sale, neither of these events occur. Thus, pursuant to the statute’s plain terms, section 95.11(5)(h) does not apply to the bank’s action.

Id.■

Applying this rationale to the current case, under the plain language of the statute the one-year limitations period in section 95.11(5)(h) does not apply to bar Whitney Bank’s claims. Overstreet, 629 So.2d at 126; see also, Thayer v. State, 335 So.2d 815, 817 (Fla. 1976) (“The Legislature must be assumed to know the meaning of words and to have expressed its intent by the use of the words found in the statute.”). Reading section 95.11(5)(h) in pari materia with section 702.06 is therefore unwarranted, since this case does not involve a suit in foreclosure.

For these reasons, we hold that the five-year statute of limitations period in section 95,ll(2)(b) applies to Whitney Bank’s cause of action. We therefore reverse- the trial court’s order entering summary final judgment against Whitney Bank and its holding that the bank’s claims are barred, and remand the case for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings,

ROBERTS, MAKAR, and JAY, JJ., OONOUR.


text:
    Holli Poe DENNIS, Former Wife, Appellant, v. Michael DENNIS, Former Husband, Appellee.
    CASE NO. 1D16-3929
    District Court of Appeal of Florida, First District.
    Opinion filed August 7, 2017.

      Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.,
    Stephen A. Pitre of Clark Partington, Pensacola;, and Trevor A. Thompson of Clark Partington, Tallahassee, for Appel-lee. ,
   PER CURIAM.

Former Wife, Holli Poe Dennis, appeals a final order terminating her entitlement to alimony, arguing that the trial court failed to support, its decision with adequate factual findings. We affirm without discussion the termination of the alimony obligation.

Former Husband, Michael Dennis, cross-appeals the. final order,, arguing that the trial court should have retroactively applied the termination of his obligation to pay alimony. A trial court has the discretion to modify alimony effective from the date the petition for modification was filed or any date subsequent to the filing of the petition. Acosta v. Renta, 84 So.3d 1223, 1226 (Fla. 3d DCA 2012). “Retroac-tivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted,” DeSantis v. Smith, 634 So.2d 796, 797 (Fla. 4th DCA 1994). “Accordingly, there is a presumption of retroactivity which applies unless there is a basis for determining that the award should not be retroactive.” Thyrre v. Thyrre, 963 So.2d 859, 862 (Fla. 2d DCA 2007).

Here, Former Wife’s need for alimony ceased when she began receiving payments from Former Husband’s military pension. The trial court presented no reason for denying the request for retroactive application, and the record does not provide a basis to support the court’s denial of the request. Thus, the trial court abused its discretion by failing to make the termination of alimony retroactive to the date Former Wife began receiving a portion of Former Husband’s military benefits.

We affirm the trial court’s termination of alimony, but we reverse for the trial court to order the reduction retroactive to the date Former Wife began receiving payments from Former Husband’s pension.

AFFIRMED in part; REVERSED in part; and REMANDED.

WOLF, ROWE, and KELSEY, JJ., • CONCUR.


text:
    Tommy WELLS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1408
    District Court of Appeal Of Florida, First District.
    Opinion filed August 10, 2017

      Douglas A Dorsey, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the February 18, 2016, judgments and sentences in Nassau County Circuit Court case numbers 2010CF86, 2010CF87, 2010CF89, 2010CF91, 2010CF92, 2015CF541, and 2016CF637. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, WETHERELL, and WINSOR, JJ., CONCUR.


author: JAY, J.

text:
    Richard Kevin KLINE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4338
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017

      Andy Thomas, Public Defender, Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   JAY, J.

Appellant was adjudged guilty and sentenced to life imprisonment for the second-degree murder of his wife. On appeal, he argues that the trial court erred in denying his motion for judgment of acquittal because the evidence presented by the State was wholly circumstantial and not inconsistent with his reasonable hypothesis of innocence. Our standard of review is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). We affirm Appellant’s judgment and sentence as being supported by competent substantial evidence, id., but write to explain why we find this case to be distinguishable from the Florida Supreme Court’s recent application of the circumstantial evidence rule in Wright v. State, 221 So.3d 512, 42 Fla. L. Weekly S587, 2017 WL 1954977 (Fla. May 11, 2017).

Both this case and Wright involved a murdered victim who shared a personal relationship with the defendant, with no definitive DNA or other physical evidence that directly connected either defendant to the crime scene—classic examples of the State’s case being based entirely on circumstantial evidence. In Wright, the supreme court reiterated the familiar tenet that “where ... the evidence of guilt is wholly circumstantial, ‘not only must the evidence be sufficient to establish each element of the offense,’ it must also ‘be inconsistent with any reasonable hypothesis of innocence proposed by the defendant.’ ” 221 So.3d at 521, 42 Fla. L. Weekly at S590 (quoting Twilegar v. State, 42 So.3d 177, 188 (Fla. 2010)). The supreme court continued: “Th[is] special standard requires that the circumstances lead to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence.” Id. (internal quotation marks omitted) (quoting Lindsey v. State, 14 So.3d 211, 215 (Fla. 2009)). More importantly, the supreme court stressed that “suspicions alone cannot satisfy the State’s burden of proving guilt beyond a reasonable doubt,” rather, “it is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict.” Id. at 521, at S590-91 (internal quotation marks omitted) (quoting Dausch v. State, 141 So.3d 513, 518 (Fla. 2014) (quoting Ballard v. State, 923 So.2d 475, 482 (Fla. 2006))).

Applying these principles to the facts in Wright, the supreme court unanimously concluded that the trial court erred in denying Wright’s motion for a judgment of acquittal. However, applying this same analysis to the evidence in this case, our facts mandate a different conclusion.

As to the defendant in Wright—who was immediately considered by the police to be the prime suspect—the supreme court remarked that “none of the evidence presented at trial directly tied Wright to the murders. Most of the State’s evidence was intended to show that Wright had a motive to commit the murders and that other potential suspects did not.” Wright, 221 So.3d at 521, 42 Fla. L. Weekly at S591. That motive arose from a paternity action that the victim filed against Wright just prior to her death. But the evidence showed that the victim’s relationship with Wright had ended over a year before she was murdered and that the victim had not seen Wright during that extended period of time. Moreover, Wright’s alibi went un-rebutted. He made no inculpatory statements; there was no fingerprint, footprint, blood, fiber, pattern impression, or other physical evidence tying Wright to the crime scene; there was no “cell tower” evidence placing Wright in the vicinity of the crime scene; and, as mentioned earlier, the DNA evidence was “equivocal.” Id.

There were, however, multiple other players involved in the victim’s life at the time of her murder: she had had several lovers after her relationship with Wright ended (including one of the first police officers who responded to the. murder scene); she frequently threw parties at, and sold drugs from, her home; and she had an ex-husband who used to beat her. Importantly, her adult daughter, with whom she had a volatile relationship, was said to have had a “$540,000 motive to kill”—i.e., to collect on the victim’s life insurance policies. Id. Indeed, the evidence revealed that shortly after her mother’s death, the daughter called her mother’s place of employment to inquire whether she possessed any life insurance policies.

Furthermore, it was learned during the investigation that the daughter and one of her boyfriends had been in the victim’s residence within days before the victim’s body was discovered, having gained access by a key the victim was known to have kept hidden outside. As the supreme court observed, “[t]he only evidence presented by the State to prove that Wright was the murderer is the fact that he had motive and opportunity. But while motive and opportunity might create a suspicion that Wright committed the murders, even deep suspicions are not sufficient to sustain the convictions.” Id. The court was especially concerned with the fact that for the jury to have arrived at a conclusion that Wright was guilty, it necessarily had to base its conviction on impermissibly stacked inferences. In the end, the supreme court declared:

The evidence presented in this purely circumstantial case does not establish “a reasonable and moral certainty that the accused and no one else committed the offense[s] charged.” Lindsey, 14 So.3d at 215.... Although the facts established at trial support a strong suspicion of guilt, they are not inconsistent with innocence. We therefore conclude that the evidence is insufficient to sustain Wright’s convictions.

221 So.3d at 525, 42 Fla. L. Weekly at S592.

Conversely, in this case, the State’s circumstantial evidence did not lack the causal connection the supreme court concluded was absent in Wright. Here, the evidence singularly pointed to Appellant as the only possible suspect. Appellant was married to and, at all times pertinent, was living with the victim. The State’s evidence, though circumstantial, connected Appellant to the crime scene through a firm timeline. It established that Appellant’s marriage was an unhappy one, full of tension and rage. It placed Appellant in the home on the morning of October 3, 2014—the last day his wife was known to have been alive—as evidenced by the conclusion of an on-line Skype conversation between the victim and a third party at 1:54 a.m. on October 3. By his own admission, Appellant drove away from his home at approximately 8:30 a.m. on the morning of October 3. He embarked on what proved to be a meandering road trip aimed, eventually, at a destination in Tennessee, where he hoped to secure a job as a long-haul trucker out of Nashville. His car was found packed with a majority of his clothes, his golf clubs, a cooler filled with food and drink, a road map, and most of his wife’s and deceased mother-in-law’s jewelry,

Prior to his journey, he cleaned out the parties’ bank accounts. Along the way, he stopped at a motel in Georgia to write a letter to his ex-wife (and recent lover), who was the mother of his only daughter. In the letter, he betrayed his declared love for the victim by describing her as an anchor dragging him down “to the bottom of the ocean,” his “nightmare,” his “path to hell,” and the one person who fomented hatred in him. He apologized for leaving his ex-wife and daughter “in a'situation that was not going to be easy,” a statement that he later claimed proved his statements regarding his wife were not inculpatory, but evidence that he was suicidal. The letter arrived at the ex-wife’s home in a package containing gift cards for her and the daughter, as well as his financial documents and cell phone. However, the evidence showed that Appellant later purchased a new cell phone.

According to his defense, while Appellant was harboring suicidal ideations in Georgia, his wife was brutally beaten and suffocated to death in their home by an unknown assailant, who locked the victim in the parties’ shared bedroom and-then exited the house, locking the front door behind him. Appellant maintained that after procuring the job in Nashville, his plan was to commit suicide by means of a trucking accident. There was no evidence of a forced entry into the home and no evidence that an unidentified intruder had been in the home.

What is compelling about the foregoing narrative, in comparison to the evidence presented in Wright, is, first, the presence of a comprehensive chronology of Appellant’s perambulations during the period when the medical examiner estimated his wife was murdered. His wife’s body was discovered by law enforcement on October 8, 2014, after her son (by another marriage) called law enforcement to come to the home because he believed that something was wrong: He had not heard from his mother in six days; Appellant’s ex-wife had called him that very evening—the evening of Appellant’s daughter’s birthday-angry over the fact that Appellant had not called his daughter on her birthday as was his custom, and asking him , to go to the house; the home was locked and dark; the parties’ car, that was always left at home for the wife to use, was missing; and access was gained to the inside of the home only by the son’s key, which he gave to the police officers. It was readily apparent that the wife’s body had been dragged into the bedroom, and it was noted that her computer was still running in the adjoining office—the same computer that she was last known to have used prior to Appellant’s leaving the residence. The State presented as a witness the man that the victim had been Skyping with in the early morning hours of October 3, 2014—and ■with whom she was having an on-line affair—who became concerned when their conversation did not later resume and she did not respond to any of his ensuing messages.

Equally significant, within the early days of the investigation, law enforcement officers were able to utilize GPS tracking made available from the automobile dealership through which the parties’ car was financed to specifically track each of the movements of the parties’ vehicle—from the day that Appellant left his home until the day that he was apprehended in Tennessee.

The second striking distinction between this case and Wright is the implausibility of Appellant’s hypothesis of innocence and the evidence the State presented that contradicted Appellant’s hypothesis. The rule remains that “[u]nder the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied.” Durousseau v. State, 55 So.3d 543, 557 (Fla. 2010) (citing Floyd v. State, 850 So.2d 383 (Fla. 2002)). Furthermore, “ ‘[t]he state is not required to rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the Defendant’s theory of events.’ ” Id. (quoting State v. Law, 559 So.2d 187, 189 (Fla. 1989)); see also Knight v. State, 186 So.3d 1005, 1009 (Fla. 2016) (“This Court has described the circumstantial evidence standard as follows: ‘[wjhere the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt[,] a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.’ Jaramillo v. State, 417 So.2d 257, 257 (Fla. 1982). The standard applies upon appellate review, id., and when a trial judge rules on a motion for judgment of acquittal, State v. Law, 559 So.2d 187, 188 (Fla. 1989).”).

Here, in contrast to Wright, there was no evidence of a third party with a motive to kill the victim. To the contrary, the evidence established that Appellant was the last person to have contact with the victim. Moreover, the State’s evidence of the fully packed car, complete with golf clubs, money, and jewels, was evidence inconsistent with a man leaving temporarily and intending to return with a job. The jurors were not left to stack inference upon inference; they only had to follow the roadmap created by the GPS evidence to trace Appellant from his home—where his wife lay dead—to his ultimate destination in Tennessee.

Finally, the jury had Appellant’s inculpatory statements in his letter to his ex-wife, in which he proclaimed his desire to rekindle their relationship while describing his life with the victim as a living nightmare. Appellant claimed that this was a suicide letter, but, again, the packed car with recreational equipment, food, and money, as well as his alleged means of suicide—death by truck—could lead a reasonable jury to conclude that Appellant’s hypothesis of innocence was unreasonable. See Cannon v. State, 180 So.3d 1023, 1039 (Fla. 2015) (holding that “[n]o reasonable hypothesis of innocence exists as to the robbery of Mr. Morgan” (emphasis in original)); Ferguson v. State, 417 So.2d 631, 635 (Fla. 1982) (rejecting, as unreasonable, Defendant’s hypothesis that because victims’ bodies were left overnight in a wooded area, a passerby could have taken their money and jewelry); Westbrooks v. State, 145 So.3d 874, 878 (Fla. 2d DCA 2014) (holding that “[t]he State is not required to rebut a hypothesis of innocence that is unreasonable”); Henderson v. State, 679 So.2d 805, 806 (Fla. 3d DCA 1996) (“While we must agree with [Appellant] that the State was required to provide evidence inconsistent with any reasonable hypothesis of innocence, we emphasize that the State was not required to exclude any unreasonable hypothesis.”). Consequently, we are left with a jury issue and “ ‘where there is substantial, competent evidence to support the jury verdict, that determination will not be disturbed by the courts.’ ” Durousseau, 55 So.3d at 557 (quoting Toole v. State, 472 So.2d 1174, 1176 (Fla. 1985)).

Because the State’s evidence was sufficient for the jury to find within “a reasonable and moral certainty” that Appellant, and no one else, committed the charged offense, we AFFIRM. Wright, 221 So.3d at 525, 42 Fla. L. Weekly at S592.

ROBERTS AND MAKAR, JJ., CONCUR.