text:
    Ulysses BROWN, Appellant, v. Walter A. MCNEIL, Secretary, Florida Department of Corrections, Appellee.
    CASE NO. 1D08-3141
    District Court of Appeal of Florida, First District.
    Opinion filed August 10, 2017
    Ulysses Brown, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and Kenneth Steely, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee. ,
   PER CURIAM.

This Court previously barred Appellant from pro se filings in this Court,concerning convictions and sentences ■ in Duval County Circuit Court case nos. 1982 CF 06820 and 1982 CF 06845. We instructed the Clerk of Court “to reject -any future pleadings, petitions, motions, documents, or other filings submitted by Ulysses Brown, DC# 089244” related to his.convictions and sentences unless the filing was signed by a member in good standing of the Florida Bar. Brown v. McNeil, 22 So.3d 741, 743 (Fla. 1st DCA 2009). Since this prohibition, the Clerk of Court has received five pro se pleadings from Appellant. As instructed, the Clerk rejected' the filings and each time wrote Appellant informing him that no action-will be taken.

Our prior opinion warned Appellant that any violation of the prior bar order may subject him to further appropriate sanctions as provided in section 944.279(1), Florida Statutes. Id. Because Appellant continues to abuse the legal process by submitting pro se filings in clear violation of this court’s order, a certified copy of this opinion shall be provided to the Florida Department of Corrections to be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to "the rules of the department as provided in section 944.279, Florida Statutes. . .

Disciplinary action imposed.

. ROBERTS, ROWE, and WINOKUR, JJ., CONCUR.


source: Caselaw Access Project

author: LaROSE, Chief Judge.

license: Public Domain

text:
    Stella PARTRIDGE a/k/a Stella Gomez Seitz a/k/a M. Stella Gomez Seitz, Appellant, v. NATIONSTAR MORTGAGE, LLC; Ricardo Partridge; and The Bank of New York Mellon f/k/a The Bank of New York, as trustee for the certificateholders of CWHEQ, Inc., Home Equity Loan Asset Backed Certificates, Series 2006-S6; Appellees.
    Case No. 2D16-3081
    District Court of Appeal of Florida, Second District.
    Opinion filed August 11, 2017.

      Nicholas Taldone, New Port Richey, for Appellant.
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Aker-man LLP, Fort Lauderdale; and Celia C. Falzone of Akerman LLP, Jacksonville, for Appellee Nationstar Mortgage, LLC.
    No appearance for remaining Appellees.
   LaROSE, Chief Judge.

Stella Partridge, also known as Stella Gomez Seitz (“Ms. Seitz”), appeals a final judgment of foreclosure. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Ms. Seitz, who unsuccessfully moved for involuntary dismissal at trial, argues that the trial court erred in admitting the payment history into evidence. She also contends that Nationstar Mortgage, LLC (“Nationstar”), lacked standing to foreclose. Because Nationstar failed to prove standing, we reverse and remand for further proceedings.

Standard of Review

We review an order denying a motion for involuntary dismissal de novo. See Deutsche Bank Nat’l Tr. Co. v. Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016); Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014).

Background

Ms. Seitz’ ex-husband, Ricardo Partridge, executed a promissory note in favor of United Capital Mortgage Corporation in 2002. A mortgage executed by Ms. Seitz and Mr. Partridge secured the debt. After they failed to make payments on the note, Bank of America, N.A., the then-noteholder sued to foreclose in 2011. Bank of America filed the original note and mortgage with the trial court. The case was dismissed in 2012.

In 2013, Nationstar began servicing the loan. A year later, Nationstar filed a foreclosure action-. With its complaint, Nations-tar filed a certification stating that the original note and mortgage remained with the trial court. Nationstar asked the trial court to take judicial notice of the originals and transfer them to the Nationstar foreclosure case. The trial court granted the motion.

At trial, Nationstar introduced a welcome letter advising Mr. Partridge that Nationstar was the assignee of the mortgage. An assignment of the mortgage was also part of the evidence before the trial court. The evidence at trial also included a letter from Bank of America to Mr. Partridge advising him that Nationstar would now be servicing the loan.

At trial, Cris Thomas, a Nationstar senior default case specialist, testified about Nationstar’s business records. She worked for Nationstar and was familiar with its business practices. She testified that Na-tionstar’s practice was to leave the original note with the clerk of court so as to avoid loss. She also stated that the payment history reflecting the debt owed was in Nationstar’s file and was maintained in accordance with its normal business procedures.

Analysis

Issue 1: Admission of Payment History

Ms. Seitz argues that the trial court erred in allowing the payment history into evidence. We disagree. The payment history reflected transactions made in the ordinary course of business. Ms. Thomas testified adequately about her knowledge of Nationstar’s business records. See Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014) (noting that the authenticating witness to the business record “just need be well enough acquainted with the activity to provide testimony” (citing Cooper v. State, 45 So.3d 490, 493 (Fla. 4th DCA 2010))). The trial court did not err in admitting the payment history into evidence.

Issue 2: Standing

“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish, standing to proceed with a foreclosure action.” Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013) (quoting Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011)). “A plaintiff may prove that it has standing to foreclose ‘through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.’ ” Id. (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 939 (Fla. 2d DCA 2010)).

In Geweye v. Ventures Trust 2013-I-H-R, 189 So.3d 231, 232 (Fla. 2d DCA 2016), we held that Venture failed to prove standing to foreclose. JP Morgan Chase Bank, N.A. (“Chase”), filed a foreclosure suit alleging that it held the note. Id. Chase filed the original note with the trial court. Id. A year later, Chase successfully moved to substitute Ventures as the party plaintiff, alleging that it had transferred the mortgage to Ventures. Id. Although Ventures introduced an assignment of mortgage at trial, “[t]he assignment ... did not purport to assign any interest in the note.” Id. Indeed “the parties d[id] not dispute that there was no assignment of the note.” Id. We concluded that Chase had standing when it filed its foreclosure complaint. Id. at 232-33. However, the order of substitution, by itself, did not extend that standing to Ventures. Id at 233.

Nationstar urges us to disregard Gew-eye. Nationstar contends that “the undisputed evidence was that, rather than risk losing the note through multiple transfers, Nationstar was using the clerk [of the court] as a bailee to continue possessing the note on its behalf until it could complete the foreclosure.” We are not persuaded.

This case is remarkably similar to Geweye. Although Bank of America assigned the mortgage to Nationstar, it does not appear that Nationstar acquired an interest in the note. Further, Nationstar’s unilateral decision to leave the original note and mortgage with the trial court does not establish possession of the note. “A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a. blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note.” Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013).

Here, the original note was filed with the trial court long before Nationstar commenced its foreclosure action. An assignment of the note from Bank of America may have gone a long way to establish Nationstar’s standing. Unfortunately for Nationstar, it has hot established “that it was the holder or nonholder in possession for purposes of standing.” Geweye, 189 So.3d at 233 (citing Creadon v. U.S. Bank N.A., 166 So.3d 952, 954 (Fla. 2d DCA 2015)).

Conclusion

We reverse the final judgment and direct the trial court to grant Ms. Seitz’ motion for involuntary dismissal because-Nationstar failed to prove standing.

Reversed with instructions..

WALLACE and LUCAS, JJ„ Concur.


author: WALLACE, Judge.

text:
    Antoine E. MCCLOUD, DOC #120077, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5289
    District Court of Appeal of Florida, Second District.
    Opinion filed August 11, 2017

      Howard L. Dimmig, II, Public Defender, and Brooke Elvington, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Antoine McCloud challenges his judgment and sentence for tampering with a witness, a violation of section 914.22(l)(e), Florida Statutes (2014). Mr. McCloud contends that the State’s evidence was insufficient to sustain his conviction because the State failed to prove that a victim or witness was. attempting to contact law enforcement during the commission of a crime. He also contends that his written judgment contains numerous clerical errors and that he is entitled to a new sentencing hearing based on a scoresheet error. Because we find that section 914.22(l)(e) does not require the State to prove that a witness was attempting to contact law enforcement during the time of the underlying criminal incident, we affirm Mr. McCloud’s conviction for witness tampering. However, we vacate Mr. McCloud’s sentence for witness tampering and remand for the trial court to conduct a new sentencing hearing for that charge and to correct the errors on the face of the judgment.

I. THE FACTS

The incident that gave rise to the witness tampering charge occurred on the morning of March 8, ,2015. Mr. McCloud awoke to noise made by his six-year-old daughter in the living area of his home. Mr. McCloud began yelling at his daughter to play more quietly and threatened to spank her. The victim, who was the child’s mother and Mr. McCloud’s wife, also awoke and told Mr. McCloud to calm down. Upon being told to calm down, Mr. McCloud became angry, approached the victim, who was still in bed, and screamed at her to stop interfering with his attempts to discipline their daughter.

The victim testified that Mr. McCloud then pushed her in the chest and poked her in the forehead about two to three times. After he'stopped pushing her, Mr. McCloud then left the bedroom. Upon his exit, the victim began shouting to her twelve-year-old daughter to call for help, Mr. McCloud returned to the bedroom with a gun in his hand. He threatened to kill the victim if she ever took the children from him. Mr. McCloud then left the bedroom again and approached the older daughter, who was watching the incident unfold from the hallway outside of the bedroom. The victim testified that Mr, McCloud took the older daughter’s cell phone out of her hands and said, “Are you going to call those people on me? Are you telling my daughter to call those people on me?” The victim also testified that at some point during the incident, Mr. McCloud took her cell phone and threw it to the ground, causing the battery to fall out.

The older daughter testified that upon hearing the victim shout for help, she left her bedroom and observed from the hallway that Mr. McCloud was on top of the victim, apparently holding her arms down for about twenty seconds. She also saw that the victim’s phone was broken on the floor. The older daughter also testified that as she was standing in the hallway, Mr. McCloud approached her and grabbed her cell phone out of her hands. The older daughter stated that upon seizing her cell phone, Mr. McCloud stated, “You can’t call the cops on me. You can’t get my kids to call the cops on me.”

Mr. McCloud took the stand in his own defense at trial. He testified that he never hurt the victim and that he took the phone from his older daughter as a form of punishment for her failure to clean the house. He further testified that at the time he took the phone from his older daughter, the phone’s screen was black and that there was no phone call in progress.

At the close of the State’s case, the defense moved for a judgment of acquittal. Defense counsel argued that the evidence was insufficient to sustain a conviction for witness tampering because under McCray v. State, 171 So.3d 831, 832 (Fla. 1st DCA 2015), the State was required to and failed to present evidence that “the victim [or witness] was attempting to contact law enforcement during the time of the incident.” The trial court denied the motion, finding that the State’s evidence was sufficient to present the case to the jury. The jury returned a verdict finding Mr. McCloud guilty of tampering with a witness as charged. It also found him guilty of simple battery, a misdemeanor in the first degree, and assault, a misdemeanor in the second degree. This appeal followed.

II. DISCUSSION

Mr. McCloud raises two issues on appeal. First, Mr. McCloud argues that the trial court erred in denying his motion for a judgment of acquittal because the State failed to present sufficient evidence to support a conviction under section 914.22(l)(e). In support of his argument, Mr. McCloud relies primarily on the First District’s decision in McCray. Second, Mr. McCloud contends that the judgment contains three errors on its face. He further contends that he is entitled to a new sentencing hearing on the witness tampering charge because of a scoresheet error. The State concedes that the judgment contains scrivener’s errors and that Mr. McCloud is entitled to a new sentencing hearing. We shall address each issue in turn.

The first issue concerns the trial court’s denial of Mr. McCloud’s motion for judgment of acquittal and the interpretation of section 914.22(l)(e). We review de novo both the denial of a motion for judgment of acquittal and an issue of statutory interpretation. Delgado-George v. State, 125 So.3d 1031, 1033 (Fla. 2d DCA 2013).

As with all issues of statutory interpretation, we begin with the text of the statute. Section 914.22 provides, in pertinent part, that a person commits the crime of tampering with a witness, victim, or informant when that person:

(1) ... knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
.(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense ....

§ 914.22(l)(e). In other words, as this court has previously explained, the State must prove that through some knowing act, threat, or attempted act, “the accused specifically intended to hinder, delay, or prevent the communication of information regarding a crime to a law enforcement officer.” Gill v. State, 622 So.2d 92, 93 (Fla. 2d DCA 1993).

However, Mr. McCloud contends that section 914.22(l)(e) also requires the State to present evidence showing that the witness was attempting to contact law enforcement during the commission or possible commission of the criminal offense. Mr. McCloud observes that the First District’s decision in McCray, which relied on Thompson v. State, 153 So.3d 996 (Fla. 1st DCA 2015), and Longwell v. State, 123 So.3d 1197 (Fla. 1st DCA 2013), is squarely on point. In all three cases, the First District held that to support a conviction for witness tampering under section 922.14(l)(e), the State was required “to present evidence that the victim [or witness] was attempting to contact law enforcement during the time of the [underlying criminal] incident.” McCray, 171 So.3d at 832 (citing Thompson, 153 So.3d at 997); see also Longwell, 123 So.3d at 1198 (“[W]e conclude that no evidence was presented establishing that [the victim] was attempting to contact law enforcement during the altercation with [the defendant].”).

In McCray, the First District reversed the defendant’s conviction for witness tampering because the State did not show that the victim was attempting to contact law enforcement at the time she was being battered by the defendant. 171 So.3d at 832-33. The First District reasoned that because the victim testified that she was “trying to call somebody” instead of testifying that she was attempting to contact law enforcement during the time of the incident, evidence that the defendant broke her phone was not sufficient to prove witness tampering. Id. at 832. Our sister court, however, failed to provide any explanation for its interpretation of section 914.22(l)(e). Rather, it simply relied upon its previous decision in Thompson, which had held that the statute required the State to present evidence showing that “the victim was attempting to contact law enforcement during the time of the incident.” McCray, 171 So.3d at 832 (citing Thompson, 153 So.3d at 997). Similarly, the First District’s decision in Thompson is devoid of any explanation for its interpretation of the statute. 153 So.3d at 996-97. There, too, the First District simply relied upon its previous decision in Longwell. Id. at 997. But again, in Longwell, the First District failed to expound upon its interpretation of the statute. 123 So.3d at 1198. Instead, the Longwell court simply held that there was insufficient evidence to support a witness tampering conviction because there was no testimony indicating that the victim “was attempting to contact law enforcement during the altercation.” Id. Notably, in Longwell, the State conceded “that the evidence presented did not establish a prima facie case of guilt as to the tampering charge.” Id.

Based on our plain reading of section 914.22(l)(e), we disagree with the First District’s interpretation of the statute in McCray, Thompson, and Longwell. Section 914.22(l)(e) does not require the State to show that a witness, victim, or informant “was attempting to contact law enforcement during the time of the incident.” McCray, 171 So.3d at 832 (emphasis added). Such a requirement would add another element to a crime that is otherwise clearly defined. See § 914.22(l)(e); Fla. Std. Jury Instr. (Crim) 21.10 (listing the three elements that the State must prove beyond a reasonable doubt to convict a person of witness tampering). Rather, we find that the statute requires the State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement “relating to [not during] the commission or possible commission of an offense.” § 914.22(l)(e) (emphasis added). Indeed, if we were to interpret the statute as the First District has done, the State’s case would be dependent upon the actions of the witness rather than on those of the defendant. Such an interpretation not only severely restricts the statute’s applicability, but it also contravenes the plain meaning of the statute and could lead to absurd results. Therefore, we disagree with the First District’s interpretation and conclude that section 914.22(l)(e) does not require the State to present evidence showing that the witness or the victim “was attempting to contact law enforcement during the time of the incident.” McCray, 171 So.3d at 832.

In this case, based on our interpretation of section 914.22(l)(e) and viewing the facts adduced at trial in a light most favorable to the State, we find that the State presented sufficient evidence to sustain Mr. McCloud’s conviction for witness tampering, The record reflects that after Mr. McCloud had threatened and battered the victim, he not only took a cell phone from his older daughter, who was witnessing the crime, but he also broke the victim’s phone. In fact, the older daughter testified that when Mr. McCloud grabbed the cell phone out of her hands, he warned, “You can’t call the cops on me. You can’t get my kids to call the cops on me.” Indeed, the victim corroborated the older daughter’s account and testified that Mr. McCloud stated, “Are you going to call those people on me? Are you telling my daughter to call those people on me?” Accordingly, through the testimony of the mother and the older daughter, the State presented competent substantial evidence to show that Mr. McCloud knowingly used physical force, intimidation, or a threat with the intent to hinder or prevent a communication by either the victim or the older daughter to law enforcement regarding the assault and battery. We turn now to a consideration of Mr. McCloud’s second issue.

In light of the State’s proper concession of error, we hold that the judgment must be corrected and that Mr. McCloud is entitled to a new sentencing hearing on the witness tampering charge. Upon remand, the trial court shall correct the judgment to indicate that Mr. .McCloud was tried and found guilty by a<jury. The trial court shall also correct the judgment to reflect that Mr. McCloud was convicted of tampering with a witness, a third-degree felony. See § 914.22(2)(aj (stating that when the underlying convictions are misdemeanor offenses, witness' tampering is a third-degree felony). The trial court shall further correct the judgment to show that Mr. McCloud was found guilty of assault—not “improper exhibition of a dangerous weapon or firearm (assault)”—a misdemeanor of the second degree. Furthermore, we find that a new séntencing hearing is necessary because the- score-sheet improperly included a 1.5 multiplier based on the domestic violence charge. The use of the 1.5 multiplier was incorrect because the primary offense was witness tampering (a. third-degree felony), not domestic violence. See Fla. R. Crim. P. 3.704(d)(7), (23) (“ ‘Primary offense’ means the offense at conviction pending before the eourt'for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing.... If the primary offense is a crime of'domestic violence ..., the subtotal sentence points are multiplied by 1.5.”). Thus, because Mr. McCloud was sentenced to the bottom' of the guidelines and thé scoresheet will be affected by removing the domestic violence multiplier, we vacate the sentence and remand for a new sentencing hearing on the witness tampering conviction.

For these reasons, we affirm Mr. McCloud’s conviction for witness tampering and certify conflict with the First District’s interpretation of section 9,14.22(l)(e) in McCray. We also vacate the sentence for witness tampering and remand for re-sentencing on that charge and for the correction of the judgment.

Affirmed in part, reversed in' part; conflict certified.

•LaROSE, C.J., and KHOUZAM, J., Concur.

      . Mr. McCloud does not challenge his convictions for battery and assault.

      . Section 914.22(1) lists four different acts that an accused might take against a victim, witness, or informant that could constitute witness tampering: (1) the use or attempted use of intimidation or physical force; (2) a threat or attempted threat; (3) misleading conduct; or (4) an offer of pecuniary benefit or gain.

      . For instance, a defendant who threatens to kill a witness or victim if they "rat” on him could not be found guilty of witness tampering as long as that witness or victim did not attempt to contact the police during the commission of the underlying crime. In other words, under the First District’s interpretation of section 914.22(l)(e), a witness or victim has a small window of time to contact law enforcement. If that witness does not try or, at a minimum, intend to contact law enforcement at the time of the underlying crime, then a defendant cannot be found guilty of witness tampering. This would be true even if a defendant threatens to kill a witness or victim in the event that they “rat” on him.

      .The sentencing issues were properly preserved through the filing of a timely motion under Florida Rule of Criminal Procedure 3.800(b)(2). The motion was deemed denied.


author: VILLANTI, Judge.

text:
    George A. ANDRASI and Edith S. Andrasi, Appellants, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellee.
    Case No. 2D13-4767
    District Court of Appeal of Florida, Second District.
    Opinion filed August 11, 2017.

      H. Daniel McKillop of McKillop Law Firm, Sarasota, for Appellants.
    William L. Grimsley of McGlinchey Stafford,'Jacksonville, for Appellee.
   VILLANTI, Judge.

George and Edith Andrasi seek review of the final judgment of foreclosure entered in favor of JPMorgan Chase Bank, National Association (the Bank), after a bench trial. The Andrasis raise two issues on appeal, one relating to standing and one relating to the amounts included in the final judgment. We reject without comment the Andrasis’ standing argument and therefore affirm the judgment to the extent that it awards foreclosure. However, because the final judgment includes awards of damages that were specifically waived by the Bank during trial, we reverse the amount of indebtedness included in the final judgment and remand with instructions.

The Bank filed its foreclosure complaint against the Andrasis in September 2008. After a lengthy pretrial process, the case was tried to the court on August 26, 2013. During trial, the court admitted into evidence a copy of the promissory note signed by Edith Andrasi. This note had a face value of $500,000; however, it was an adjustable rate note with a negative amortization provision. Hence, under certain circumstances, the principal amount owed under the note could increase during the term of the note.

In addition to the note, the trial court also admitted into evidence a transaction history of the Andrasis’ loan. This document showed that the principal balance of the note was $535,347.38 at the time of default. The Bank argued that the transaction history also substantiated various other amounts for which it sought judgment, including accrued interest, late fees, property tax expenditures, insurance expenditures, and the like. However, when the Andrasis challenged the factual basis for these amounts, the Bank told the court that it was introducing the transaction history to prove only the existence of the default and the amount of principal owed. At that point, the following ensued:

MR. McKILLOP [Counsel for the An-drasis]: Just to clarify, are you only looking for principal or are you looking for everything?
MR. MILANI [Counsel for the Bank]: We’re only looking for the principal balance.
MR. McKILLOP: So I won’t ask on anything other than principal.

(Emphasis added.) Nevertheless, a short time later, the Andrasis asked the Bank’s witness whether he could explain some of the figures on the transaction history. The Bank objected again, stating specifically “we are only establishing the principal balance. None of the other figures are going to be included in our final judgment.” (Emphasis added.) With this assurance, the Andrasis then ceased pursuing this line of questioning.

After both parties rested their cases, the court ruled in favor of the Bank, and it asked counsel for the Bank to hand it the proposed final judgment that the Bank brought to the trial. Before handing the document to the court, counsel for the Bank stated, “I’m just going to strike out all of the added figures,” referring to the amounts other than the principal balance. However, the court apparently took the proposed final judgment from counsel before he could finish these edits. Hence, when the Andrasis asked for the amount of the judgment, the court replied, “$535— oh, that’s the principal. $704,334.” The court then signed the proposed final judgment without striking the amounts other than the principal balance. The Andrasis brought this timely appeal.

In their brief, the Andrasis argue that the evidence presented at trial was insufficient to support the amount of indebtedness included in the final judgment for two reasons: first because the evidence did not support the principal balance included in the judgment, and second because the Bank waived its right to seek an award of any amount other than the principal balance. We agree with only the second contention.

As to the amount of principal, the transaction history admitted into evidence showed a principal balance of $535,347.38 as of the date of default. Once that transaction history was admitted into evidence, the trial court.was entitled to rely on it in determining whether the Bank had sufficiently proved the amounts due to it. See, e.g., WAMCO XXVIII, Ltd. v. Integrated Elec. Env’ts, Inc., 903 So.2d 230, 233 (Fla. 2d DCA 2005) (holding that properly admitted business records showing the amount of debt provided competent, substantial evidence of the amount of damages); Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1218 (Fla. 4th DCA 2014) (affirming final judgment of foreclosure based on bank’s payment records that were properly admitted). While the Andra-sis questioned the Bank’s witness at trial about how the principal balance was determined, they offered no evidence to show that the principal balance identified in the transaction history was incorrect. Hence, while the trial court certainly could have given no weight to the principal amount listed in the transaction history based on the Andrasis’ questioning, its decision to rely on the properly admitted evidence was within its discretion, and we are not at liberty to reweigh that evidence on appeal. See, e.g., GNB, Inc. v. United Danco Batteries, Inc., 627 So.2d 492, 493 (Fla. 2d DCA 1993) (“As an appellate court, it is not our function to reweigh the evidence but, rather, to view the record to determine if it contains competent and substantial evidence to support the conclusions of the trier of fact.”). Because the transaction history provided evidence to support the principal balance of $535,347.38, this amount was properly included in the final judgment of foreclosure and must be affirmed.

As to the remaining amounts included in the final judgment, however, they were not properly awarded because the Bank voluntarily waived its right to seek them. During trial, counsel for the Bank told the court and the Andrasis at least three times that the Bank was not seeking a judgment for any amount other than the unpaid principal balance. The An-drasis relied on the Bank’s assertions by ceasing their questioning of the Bank’s-witness concerning the other amounts allegedly supported by the transaction history. Having specifically waived its right to seek a judgment for amounts other than the unpaid principal balance, the Bank was not then entitled to entry of a final judgment that included those additional amounts for interest, taxes, insurance, late fees, and the like. See Band v. Libby, 113 So.3d 113, 115 (Fla. 2d DCA 2013) (“Parties, by their own knowledge and conduct, can waive- or be estopped to raise a wide array of constitutional, statutory, and common law rights -....”) (quoting Ruggio v. Vining, 755 So.2d 792, 795 (Fla. 2d DCA 2000)); see also Good Samaritan Hosp. Ass’n v. Saylor, 495 So.2d 782, 782-83 (Fla. 4th DCA 1986) (holding that hospital would be bound by its stipulation to waive certain damages and objections that it otherwise could have raised). Under these circumstances, 'the trial court had no au-' thority to override the Bank’s concession.

Accordingly, while we affirm the entry of a judgment of foreclosure, we reverse the final judgment to the extent that it includes an award of amounts other than the documented unpaid principal balance. On remand, the trial court shall enter an amended final judgment of foreclosure in the amount of $535,347.38.

Affirmed in part, reversed in part, and remanded with instructions.

SILBERMAN, J., Concurs.

LUCAS, J., Concurs in result only.

      . The original note had been previously filed in the court file.

      . While only Edith Andrasi signed the promissory note, both Edith and George Andrasi signed the mortgage.


author: PER CURIAM.

text:
    Maurice Javon JACKSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-5687
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017.
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public, Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   ON. REMAND FROM THE FLORIDA SUPREME COURT ■

PER CURIAM.

We previously affirmed appellant’s sentences based on our en banc- decision in Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013) (Walton I), where this court held that “any mandatory minimum term required by section 775.087(2)—whether the defendant fires a gun, or only carries or displays it—shall be imposed consecutively to any other term imposed for any other felony.” However, the Florida Supreme Court quashed our decision in this case and remanded for reconsideration in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016) (Walton II), and Williams v. State, 186 So.3d 989 (Fla. 2016).

In Williams, the supreme court held that the 10-20-Life statute does not- require consecutive sentences when the sentences arise from a single criminal episode. Rather, the supreme court held that “a trial judge has discretion to order the mandatory minimum sentences to run consecutively, but may impose the sentences concurrently.” Williams, 186 So.3d at 993. In so determining, the supreme court noted that “[generally, consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged;” however, “[if] .., multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.” Id. The supreme court did not explicitly discuss a case factually similar to this one, in which appellant committed two gun-related offenses, attempted second-degree murder and possession of a firearm by a convicted felon, but appellant’s crimes involved only one victim who sustained only one physical injury.

In line with our precedent outlined in Burns v. State, 212 So.3d 546 (Fla. 1st DCA 2017) and Wilson v. State, 219 So.3d 931 (Fla. 1st DCA 2017), we therefore REVERSE and REMAND appellant’s sentences for the trial court to reconsider whether, in its discretion, it wishes for appellant to serve his minimum mandatory sentences concurrently or consecutively. In so ruling, we certify conflict with Torres-Rios v. State, 205 So.3d 883 (Fla. 5th DCA 2016).

WOLF, LEWIS, and ROBERTS, JJ., CONCUR.


text:
    Robert R. MILLER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D13-5503
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We previously affirmed appellant’s sentences based on our en banc decision in Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013) (Walton I), where this court held that “any mandatory minimum term required by section 775.087(2)—whether the defendant fires a gun, or only carries or displays it—shall be imposed consecutively to any other term imposed for any other felony.” However, the Florida Supreme Court quashed our decision in this case and remanded for reconsideration in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016) (Walton II), and Williams v. State, 186 So.3d 989 (Fla. 2016).

In Williams, the supreme court held that the 10-20-Life statute does not require consecutive sentences when the sentences arise from a single criminal episode. Rather, the supreme court held that “a trial judge has discretion to order the mandatory minimum sentences to run consecutively, but may impose the sentences concurrently.” Williams, 186 So.3d at 993. In so determining, the supreme court noted that “[gjenerally, consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged”; however, “[if] ,.. multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is. permissible but not mandatory.” Id. The supreme court did not explicitly discuss a case factually similar to this one, in which appellant committed two gun-related offenses, attempted second-degree murder and possession of a firearm by a convicted felon, but appellant’s crimes involved only one victim who sustained only one physical injury.

In line with our precedent outlined in Burns v. State, 212 So.3d 546 (Fla. 1st DCA 2017), and Wilson v. State, 219 So.3d 931 (Fla. 1st DCA 2017), we therefore REVERSE and REMAND appellant’s sentences for the trial court to reconsider whether, in its discretion, it wishes for appellant to serve his minimum mandatory sentences concurrently or consecutively. In so ruling, we certify conflict with Torres-Rios v. State, 205 So.3d 883 (Fla. 5th DCA 2016).

ROBERTS, JAY, and M.K. THOMAS, JJ., CONCUR.


text:
    STATE of Florida, Appellant, v. Alicia C. WHEELER, Appellee.
    CASE NO. 1D16-4193
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellant.
    Mutaqee Akbar, Akbar Law Firm, PA, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Mobley v. State, 197 So.3d 572 (Fla. 4th DCA 2016), superseded by statute, Ch. 2017-115, § 9, at 8, Laws of Fla.

ROWE, KELSEY, and JAY, JJ., CONCUR.


author: KELSEY, J.

text:
    Beverly MATHIS, Appellant, v. BROWARD COUNTY SCHOOL BOARD and the School Board of Broward County, Appellees.
    CASE NO. 1D16-3286
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Kimberly J. Fernandes of Kelley Kro-nenberg, P.A., Tallahassee, for Appellees.
   KELSEY, J.

Claimant’s foot injury was determined to be non-compensable because she failed to meet her burden of proving that the injury occurred in the course and scope of employment or arose out of her employment. She does not appeal that ruling. Rather, she argues that the Employer/Carrier (E/C) were obligated to pay for her hospitalization that occurred before the E/C denied compensability and after the E/C began providing benefits under the 120-day rule of section 440.20(4), Florida Statutes (2014). The E/C argue that they were not responsible for the hospitalization expenses because they had decided to deny compensability before the hospitalization occurred, even though they did not file a notice of denial until the hospitalization ended. The JCC accepted the E/C’s argument, but we reverse on that issue. However, because the hospitalization began and was completed in a span of less than 10 days, and the E/C did not expressly authorize the hospitalization or fail to respond timely to a written request for authorization, we remand for the JCC to address the E/C’s defenses and to determine whether the hospitalization was for emergency care within the meaning of the governing statutes.

Background Facts.

The background facts are not in dispute. Claimant, a custodian who is diabetic, reported to her Employer on March 5, 2015, that a nail or tack went through her right shoe the previous evening, and that her right foot was swollen and painful. One of the Employer’s workers’ compensation nurses spoke'with Claimant at length on March 5, and referred her to Dr. Kerr, whom Claimant saw that day. The E/C invoked the 120-day rule, asserted causation and other defenses including entitlement to an evidentiary hearing before AHCA to resolve provider reimbursement issues, and continued paying Claimant’s salary in lieu of paying temporary compensation benefits.

Dr. Kerr’s notes reflect that on March 5, one day after the alleged foot puncture, Claimant already had an abscess on the foot, which was later confirmed to be a staph infection. Dr. Kerr’s opinion was that such an infection takes more than one day to develop and could not have developed from the night before. Within four days, by March 9, the staph infection had grown worse. Dr. Kerr again advised Claimant that she did not think the infection came from the reported incident. She prepared a DWC-25 form requesting consult through the hospital emergency room for IV treatment. Claimant went to the emergency room on March 9. A podiatrist at the hospital operated on the abscess on March 11, delayed closure of the wound until March 15, and discharged Claimant on March 17. The hospital bill was just over $116,000.

The claims adjuster had spoken to Claimant on March 5, and concurred with the authorization of Dr. Kerr. The adjuster received Dr. Kerr’s written referral to the hospital within ten days prior to denying the claim on March 17, but the adjuster did not authorize the hospitalization and did not find out about it until March 10. Neither the hospital nor the podiatrist notified the E/C or requested prior authorization for treatment. The E/C later asserted that the adjuster had determined on March 5 that the injury was not compensa-ble, although the notice of denial as to compensability was not filed until March 17, the same day Claimant was discharged from the hospital. The notice of denial asserted that Claimant’s injury was personal and not causally connected to her employment, based on lack of evidence of causation and Dr. Kerr’s office note regarding the presence of a well-developed infection only one day after the alleged accident.

Pay And Investigate.

The “pay-and-investigate” rule of Subsection 440.20(4), Florida Statutes (2014), provides as follows (emphasis added):

If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny com-pensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability ....

The E/C had three options.upon being notified of the claim: pay the claim, pay and investigate, or deny the claim. See Bynum Transp., Inc. v. Snyder, 765 So.2d 752, 754 (Fla. 1st DCA 2000). A claimant’s first authorized visit to a physician begins the 120-day period. Osceola Cty. Sch. Bd. v. Arace, 884 So.2d 1003, 1006 (Fla. 1st DCA 2004). To accept or deny a claim, the E/C must “advise the employee of claim acceptance or denial.” City of Ocoee v. Trimble, 929 So.2d 687, 690 (Fla. 1st DCA 2006). A merely internal intent , or decision to deny a claim does not satisfy the requirement of advising the employee, and therefore the denial here ..occurred on March 17 when the E/C advised Claimant of the denial. We reverse the JCC’s ruling to the contrary. Under subsection 440.20(4), the E/C were required to pay all benefits due “as if the claim had been accepted as compensable” until the date of denial. However, the E/C retained the right to challenge other issues relevant to Claimant’s entitlement to benefits, including major contributing cause. Trimble, 929 So.2d at 689-90; see also Sch. Dist. of Hillsborough Cty. v. Dickson, 67 So.3d 1080, 1083 (Fla. 1st DCA 2011) (holding section 440.20(4) does not preclude E/C from challenging claimant’s entitlement to benefits on other grounds particularly including major contributing cause).

Emergency Care.

The pay-and-investigate rule does not resolve this case, however. The E/C were entitled to an opportunity to give prior authorization for the care under at least two statutory provisions. First, a referral from one health care provider to another requires prior authorization under séction 440.13(3)(c), Florida Statutes (2014). Second, because the services provided to Claimant cost more than $1,000, the E/C were entitled to a ten-day approval period under section 440.13(3)(i), Florida Statutes (2014), and the emergency-care exception to that ten-day period. The E/C are entitled to this approval period notwithstanding having elected to pay and investigate. This section provides as follows (emphasis added):

(i) Notwithstanding paragraph (d) [giving a carrier three days to respond to requests for treatment], a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, • X-ray examinations, or special diagnostic laboratory tests that cost more than. $1,000 and other specialty services that the department identifies by rule is not valid and reimbursable unless :the services have been expressly authorized by the carrier, unless the. carrier has failed to respond within 10 days to a written request for authorization, or unless emergency care is required. The insurer shall authorize such consultation or procedure unless the health care provider or facility is not authorized, unless such treatment is not in accordance with practice parameters and protocols of treatment established in this chapter, or unless a judge of compensation claims has determined that the consultation or procedure is not medically necessary, not in accordance with the practice parameters and protocols of treatment established in this chapter, or otherwise not compensable under this chapter. Authorization of a treatment plan does not constitute express authorization for purposes of this section, except to the extent the carrier provides otherwise in its authorization procedures. This paragraph does not limit the carrier’s obligation to identify and disallow overutilization or billing errors.

The ten-day approval period applies for services that cost more than $1,000 and other designated specialty services, “unless emergency care is required.” See also § 440.13(3)(b), Fla. Stat. (requiring emergency care providers to notify carrier by the close of the third business day after rendering emergency care). No written request for authorization in compliance with the statute was made here, no emergency care notice was given, and the E/C did not expressly authorize the treatment. Further, the E/C’s March 17 denial was within ten days of the date the adjuster testified she received the written referral from Dr. Kerr for the hospitalization. Unless the emergency care exception applied, as Claimant argues it does, the E/C are not hable for the hospital bill.

The JCC found that hospitalization was considered necessary to treat Claimant’s infection, but these findings do not resolve whether it was “emergency care” within the meaning of section 440.13(3)(i). We have held previously that the emergency-care exception to the ten-day rule is triggered when the care is provided for a compensable injury, is medically necessary, and constitutes “emergency” care. Cespedes v. Yellow Transp., Inc., 130 So.3d 243, 252 (Fla. 1st DCA 2013) (relying on section 395.002, Florida Statutes (2005), which defines “emergency services and care” and “emergency medical condition”). An emergency medical condition is defined as follows:

(a) A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
1. Serious jeopardy to patient health, including a pregnant woman or fetus.
2. Serious impairment to bodily functions.
3. Serious dysfunction of any bodily organ or part.

Cespedes, 130 So.3d at 254 (quoting § 395.002(9)(a), Fla. Stat. (2005)).

The care here is considered compensa-ble under the 120-day pay-and-investigate rule because the statute requires benefits to be provided during the investigatory period “as if the claim had been accepted as compensable.” § 440.20(4), Fla. Stat. The JCC here did not, however, address the E/C’s other defenses or the remainder of the analysis under Cespedes, including whether the hospitalization met the definition of “emergency services and care” under section 395.002 as referenced in section 440.13(l)(e). We remand for further proceedings on these issues.

Conclusion.

We reverse the JCC’s conclusion that the E/C’s decision to deny the claim on March 5, not communicated to Claimant until March 17, was sufficient to avoid liability for the hospital bill. However, we remand for further proceedings on the E/C’s other defenses and whether the treatment constituted emergency care.

REVERSED and REMANDED for further proceedings.

WETHERELL and MAKAR, JJ., concur.

       It should be noted that prior to October- 1, 2003, subsection 440.20(4) permitted an E/C the option of paying some benefits while they investigated the claim. Effective that' date, however, the subsection was amended to- its current language mandating that the carrier "initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable.” Ch. 03-412, § 24, at 3934, Laws of Fla.


author: WOLF, J.

text:
    Anderson Jerome PARKER, Sr., Appellant, v. The GEO GROUP, INC., Appellee.
    CASE NO. 1D16-2611
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017.
    Frederick J. Gant, Pensacola, for Appellant.
    Scott J. Seagle of Coppins Monroe Adkins & Dincman, P.A., Tallahassee, for Ap-pellee.
   ON MOTION FOR CLARIFICATION

WOLF, J.

We grant appellee’s motion for clarification, withdraw our previous opinion filed June 23, 2017, and replace it with the following opinion.

Appellant challenges the trial court’s reliance on the one-year statute of limitations period found in section 95.11(5)(g), Florida Statutes (2012), which led the court to dismiss appellant’s claim alleging he suffered physical injuries as a result of prison operators’ negligence. Appellee correctly concedes that section 95.11(5)(g) is not applicable to the case at hand and that appellant’s claim was wrongfully dismissed. See Green v. Cottrell, 204 So.3d 22 (Fla. 2016). The applicable statute of limitations for a negligence action by a prisoner alleging physical injury against a private entity providing correctional services in Florida should be the four-year statute of limitations period outlined in section 95.11(3)(a), Florida Statutes (2012). We, therefore, reverse and remand this case for further proceedings.

RAY and BILBREY, JJ., CONCUR.


text:
    Sherwood Laran BOSTIC, Petitioner, v. The STATE of Florida, Respondent.
    CASE NO. 1D17-2882
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Sherwood Laran Bostic, pro se, Petitioner. -
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    Christopher WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1060
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Christopher Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

B.L. THOMAS, C.J., and RAY and KELSEY, JJ., CONCUR.


text:
    Jim Lee MCGAHEE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0325
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Jim Lee McGahee, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236, 1238 (Fla. 2004).

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    Timothy R. ADKINS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0868
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Timothy R. Adkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    Patrick A. BURNS, II, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2953
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017
    Patrick A. Burns, II, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    D’Angelo PUGH, Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    CASE NO. 1D17-1621
    District Court of Appeal of Florida, First District.
    Opinion filed August 14, 2017.
    D’Angelo Pugh, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, and Kenneth S. Steely, General Counsel, Florida Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

WOLF, OSTERHAUS, and KELSEY, JJ., CONCUR.


text:
    Brent MILLER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1310
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017
    Brent Miller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the July 17, 2013, judgment and sentence in Leon County Circuit Court case number 2003-CF-00880-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.

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


text:
    Joshula T. OLIVER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2805
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017.
    Joshula T. Oliver, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Dismissed as successive. See Fla. R. App. P. 9.141(d)(6)(C).

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


text:
    Frankie SILVESTRI, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2692
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017
    Frankie Silvestri, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

This Court reserves jurisdiction to consider the imposition of sanctions.

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


text:
    Marcellous Likely MCWILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2146
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017

      Bruce Miller, Public Defender and Thomas F. McGuire III, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the March 7, 2017, judgments and sentences in Escambia County Circuit Court case numbers 2014-CF-004904-A and 2014-CF-004905-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.

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


text:
    Steven Lashaun DAVIS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1667
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017
    Steven Lashaun Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the January 27, 2016, order denying second amended motion for postconviction relief in Washington County Circuit Court case number 10-240-CF. 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).

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


text:
    Donald A. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1697
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017.
    Donald A. Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner Donald A. Williams files a petition for writ of habeas corpus seeking to collaterally attack his judgment and sentence in Miami-Dade County Circuit Court case number F02-37491B. We dismiss the petition as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

Williams has failed to obtain relief in other related cases challenging the Miami-Dade proceedings. See Williams v. State, 86 So.3d 1208 (Fla. 1st DCA 2012); Williams v. State, 178 So.3d 405 (Fla. 1st DCA 2015); Williams v. State, 178 So.3d 405 (Fla. 1st DCA 2015); Williams v. State, 202 So. 3d 414 (Fla. 1st DCA 2016). Accordingly, after receiving the instant petition, we ordered Williams to show cause why he should not be prohibited from future pro se filings in this court challenging the Miami-Dade proceeding. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

Therefore, because petitioner’s repeated attacks on his judgment and sentence have become an abuse of a legal process, we hold that he is barred from future pro se filings in this court concerning Miami-Dade County Circuit Court case number F02-37491B. The clerk of the court is directed not to accept any future filings concerning this case unless they are filed by a member of the Florida Bar in good standing. Petitioner is warned that any filings that violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes.

DISMISSED.

B.L. THOMAS, C.J., and LEWIS and ROWE, JJ., CONCUR.


text:
    Andrew EDGECOMBE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-1165
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017
    Andrew Edgecombe, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order dated March 23, 2017, and having determined the appeal is untimely, the appeal is hereby DISMISSED. The dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).'

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


text:
    Titus DICKEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-5773
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017
    Kevin Robert Alvarez of Anabelle Dias, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The judgment and sentence are affirmed, except that the trial court failed to enter a written order of competency under rule 3.212(b), Florida Rules of Criminal Procedure, which requires a written order regardless of any prior finding of incompetence. Accordingly, we remand with directions for the trial court to enter a written order memorializing its competency determination. ' See Fla. R. Crim. P. 3.212(b) (“If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.”); see also Hunter v. State, 174 So.3d 1011, 1015 (Fla. 1st DCA 2016) (“Nevertheless, the record decidedly lacks a written order from the trial court adjudicating Hunter competent for trial, as required by rule 3.212(c)(7). As we did in Martinez, we simply remand to the trial court to enter the needed written adjudication nunc pro tunc.”); Merriell v. State, 169 So.3d 1287, 1289 (“It is undisputed, however,: that the trial court failed to enter a written order of competency. Similar to our recent opinion in [Hunter], we remand for the trial court to enter a nunc pro tunc order adjudicating Appellant competent to proceed.”).

AFFIRMED; REMANDED with directions.

ROBERTS, ROWE, and MAKAR, JJ.; CONCUR.


author: KELLY, Judge.

text:
    Matthew GALLOWAY, M.D., and Galloway Orthopedics, LLC, Appellants, v. ORTHOPEDIC SPECIALISTS, LLP, Appellee.
    Case Nos. 2D15-5437
    2D16-241
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017
    " Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa; Travis Godwin of Shankman, Leone, P.A., Tampa;- and Thomas Cope of Cope, Zebro & Crawford, P.L., Clearwater, for Appellants.
    Brandon S. Vesely and Nicole M. Ziegler of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellee.
   KELLY, Judge.

In appeal number 2D15-5437, Dr. Matthew Galloway and Galloway Orthopedics, LLC, ask this court to reverse the’trial court’s order denying a motion to dissolve an ex parte temporary injunction. The injunction was entered against Dr. Galloway after his former employer, Orthopedic Specialists, LLC, sued him for breach of the restrictive covenants in his employment agreement. The only issue before us at this juncture is whether the trial court abused its discretion when it denied the motion to dissolve the injunction. See Thomas v. Osler Med., Inc., 963 So.2d 896, 899 (Fla. 5th DCA 2007) (stating the standard of review in determining whether a trial court properly refused to dissolve an injunction is abuse of discretion); Gold Coast Chem. Corp. v. Goldberg, 668 So.2d 326, 327 (Fla. 4th DCA 1996) (stating a trial court’s ruling on a temporary injunction is reviewed for an abuse'of discretion). Having reviewed the record in light of the arguments raised in this appeal, we conclude the appellants have failed to demonstrate that the trial court abused its discretion when it refused to dissolve the temporary injunction. Accordingly, we affirm the trial court’s order. We also affirm without discussion’ the contempt order challenged by appellants in appeal number 2D16-241.

In so ruling, we remind the parties and the trial court that “[a] temporary injunction does not decide the merits of a case; no full hearing has been conducted.” Gold Coast, 668 So.2d at 327. Neither the trial court’s findings of fact and conclusions of law nor our determination that the trial court did not abuse its discretion in denying the motion to dissolve the injunction will be binding at a trial on the merits. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Klak v. Eagles’ Reserve Homeowners’ Ass’n., 862 So.2d 947, 952 (Fla. 2d DCA 2004); Hialeah, Inc. v. Calder Race Course, Inc., 620 So.2d 261, 262 (Fla. 3d DCA 1993).

Affirmed.

CRENSHAW and BLACK, JJ., Concur.


author: SILBERMAN, Judge.

text:
    OMEGA INSURANCE COMPANY, Appellant, v. William WALLACE and Joan Wallace, husband and wife, Appellees.
    Case No. 2D16-449
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017
    Scot E. Samis of Traub Lieberman Straus & Shrewsberry, LLP, St. Peters-burg, for Appellant.

      Richard N. Asfar and George A. Vaka of Vaka Law Group, P.L., Tampa and Richard T. Heiden of Richard T. Heiden, P.A., Clearwater, for Appellees.
   SILBERMAN, Judge.

Omega Insurance Company seeks review of a final judgment awarding William and Joan Wallace just over $200,000 for subsurface remediation in their sinkhole action. The final judgment was based on a directed verdict entered after the trial court refused to consider the testimony of Omega’s expert engineers and the neutral evaluator regarding the proper method of subsurface repair. We conclude that the proper method of subsurface repair is a jury question and reverse.

This appeal arises from a sinkhole insurance claim under a policy issued by Omega to the Wallaces in August 2010. Much of the argument on appeal, as in the trial court, concerns expert testimony and the proper definition of certain terms used in the Omega policy. The policy contains a sinkhole loss coverage endorsement which provides, in pertinent part, as follows:

B. COVERAGE
We insure for direct physical loss to property covered under Section I caused by a Sinkhole Loss, including the costs incurred to:
1. Stabilize the land and building; and
2. Repair the foundation;
In accordance with the recommendations of the professional engineer who verifies the presence of a Sinkhole Loss in compliance with Florida sinkhole testing standards and in consultation with you.

(Emphasis added.) It also provides the following definitions:

“Sinkhole Activity” means settlement or systematic weakening of the earth supporting such property only when such settlement or systematic weakening results from movement or raveling of soils, sediments, or rock materials into subterranean voids created by the effect of water on a limestone or similar rock formation.
“Sinkhole Loss” means structural damage to the building, including the foundation, caused by Sinkhole Activity. Personal property coverage shall apply only if there is structural damage to the building caused by Sinkhole Activity.

(Emphasis added.) The endorsement thus provides coverage for direct physical loss to covered property due to a “Sinkhole Loss” as defined in the policy. While the policy defines “Sinkhole Loss” as “structural damage to the building, including the foundation,” it does not define the term “structural damage.”

After an initial flurry of expert reports, Omega agreed that there was a sinkhole loss and extended coverage. As is often the case with sinkhole claims, the dispute between the parties mainly concerned the proper method of subsurface repair. Omega retained an engineering firm that recommended compaction grouting to stabilize the subsurface soil and to remediate the sinkhole conditions. The Wallaces obtained a subsurface repair protocol from another engineering firm that recommended underpinning in addition to compaction grouting. Omega then requested neutral evaluation, and the neutral evaluator concluded that there was no need for underpinning in addition to compaction grouting.

Despite the neutral evaluator’s recommendation, the Wallaces submitted a contract for subsurface repair including compaction grouting and underpinning. When Omega refused to pay, the Wallaces sued Omega for breach of contract. In count four of the operative complaint, .the Wal-laces alleged that Omega breached the policy by refusing to make payment on the repair contract.

At trial, the Wallaces offered the expert testimony of engineer Sonny Gulati of Florida Testing, and Environmental, Inc. (“FTE”). Gulati concluded that there had been structural damage to the building and foundation of the Wallace residence constituting a “Sinkhole Loss” as defined by the policy.. Gulati applied the engineering.defi-. nition of “structural damage,” which required that the load-carrying capability of the foundation be compromised. He concluded that the remediation should include both compaction grouting and underpinning.

Omega offered the expert testimony'of two engineers from SDII Global Corporation and the neutral evaluator. While the neutral evaluator concluded there ‘was damage to the structure, he was not asked to give an opinion on whether there was a “Sinkhole Loss” as defined by the policy. The SDII engineers concluded there was a “Sinkhole Loss,” but they applied the definition of structural damage that was used by the insurance industry and some courts. This definition of structural damage only required damage to the structure rather than compromise of the load-carrying capability of the foundation. The SDII engineers and the neutral evaluator also characterized the damage as “cosmetic” because it could be repaired without repairing the foundation or load-bearing portions of the structure. They agreed with Gulati that compaction grouting was necessary for remediation, but they did not believe the damage was significant enough to require underpinning.

At the close of Omega’s case, the- Wal-laces moved for a directed verdict on count four of the amended complaint, arguing that Gulati’s opinion- established the method of subsurface repair as a matter of law. According to the Wallaces, the policy contained language-requiring.that any subsurface repair protocol be recommended by a “professional engineer who verifies the presence of a Sinkhole Loss,” They asserted that their expert, Gulati, was the only professiqnal. engineer who verified that there was a “Sinkhole Loss” using what, they claimed to be the proper definition of structural damage, which was the engineering definition.

Omega’s counsel responded that the defense experts also.found a “Sinkhole Loss” for which the policy provides coverage. Counsel maintained that in light of the conflicting expert testimony as to the proper method of repair, that issué was appropriate for resolution by the jury. Counsel added that under the Wallaces’ strained interpretation of the policy, Gula-tf s opinion testimony on behalf of the Wal-laces could not even be considered. According to counsel, the policy contained language requiring that any subsurface repair protocol be prepared “in compliance with Florida sinkhole testing standards.” Counsel asserted that Gulati’s protocol could not have met this standard because he did not perform any testing at the Wallace residence. Counsel stated that if the court were inclined to grant the Wal-laces’ motion for directed verdict, then Omega should be permitted to amend its pleadings to deny coverage. Counsel reiterated that was not the preferred option as “we want to fix the house.”

The trial court granted the Wallaces a directed verdict on count four and denied Omega’s motion to amend the pleadings. The court ultimately entered a Anal judgment awarding the Wallaces $207,628.96 (the full amount of the policy plus prejudgment interest). The court denied Omega’s motions for rehearing and new trial and Omega’s renewed motion to require a contract for repair as a condition of subsurface repair benefits.

On appeal, Omega asserts that the trial court erred in granting the Wallaces’ motion for directed verdict, denying its request to amend its pleadings, and denying its motion to require a contract for repair as a condition of subsurface repair benefits. We conclude that the trial court erred in granting a directed verdict in favor of the Wallaces on the proper method of repair and reverse. This holding renders the remaining issues moot.

This court conducts a de novo review of orders granting directed verdicts. Jackson Hewitt, Inc. v. Kaman, 100 So.3d 19, 27 (Fla. 2d DCA 2011). The issue that gave rise to the directed verdict is a matter of contract interpretation. The Wal-laces relied on the portion of the sinkhole endorsement providing coverage for sinkhole damages “[i]n' accordance with the recommendations of the professional engineer who verifies the presence of a Sinkhole Loss in compliance with Florida sinkhole testing standards and in consultation with you.” (Emphasis added.) The Wal-laces asserted that, under this provision, a subsurface repair protocol may be used only if it is recommended by a “professional engineer who verifies the presence of a Sinkhole Loss” using the engineering definition of “structural damage.”.

The Wallaces also relied on the portion of the sinkhole endorsement that defines “Sinkhole Loss” as “structural damage to the building, including the foundation, caused by Sinkhole Activity.” They successfully convinced the trial court that the opinion of their expert was unrefuted as to the existence of structural damage and a sinkhole loss. They claimed that a directed verdict in their favor was appropriate because SDII and the neutral evaluator refused to agree that there was “structural damage to the building” using the engineering definition of “structural damage” and, therefore, did not “veriffy] the presence of a Sinkhole Loss.”

There is nothing in the plain language of the insurance policy’s sinkhole endorsement that requires the use of a particular definition, to the exclusion of other definitions, to determine the existence of “structural damage” in order to provide an opinion on the proper method of subsurface repair. To uphold the directed verdict below, this court would have to read additional language into the policy. Cf. Roker v. Tower Hill Preferred Ins. Co., 164 So.3d 690, 693 (Fla. 2d DCA 2015) (holding that a statute requiring the insurer to pay for repair “in accordance with the recommendations of the professional engineer” did not “require the insured to enter into a contract for the subsurface repairs recommended by the insurer’s engineer to the exclusion of any other professional recommendations”).

Omega’s expert engineers agreed that the Wallaces had a covered sinkhole loss based on damage to the structure, even though they disagreed as to the precise definition to be given to the term “structural damage” and the appropriate method of repair. The testimony of Omega’s experts that there had been a sinkhole loss based on sinkhole activity that damaged the Wallace’s residence was consistent with the terms of the policy. Thus, the trial court erred in refusing to consider that testimony.

By extending coverage for the Wallaces’ “Sinkhole Loss,” Omega necessarily conceded that there had been structural damage, as contemplated by the policy, caused by “Sinkhole Activity.” Any dispute as to whether there was sufficient structural damage to constitute a “Sinkhole Loss” was rendered moot, and the only issue to be resolved at trial pertaining to subsurface damage was the proper method of repair.

Generally, the question of the proper method of subsurface repair of a home damaged by sinkhole activity is for the jury to resolve. Roker, 164 So.3d at 694. At trial, the parties offered the testimony of four engineers, and they all agreed there was damage to the structure even though they disagreed regarding the proper method of subsurface repair. Omega’s two experts from SDII and the neutral evaluator testified that compaction grouting alone was the proper protocol. The Wallaces’ expert from FTE disagreed and testified that underpins should be added. Omega correctly argues that the jury should have been allowed to resolve this dispute.

We therefore reverse the final judgment and remand for a jury trial on the method of repair. We note that any judgment on remand must be consistent with the policy’s loss settlement provision which only obligates Omega to pay for subsurface repairs after the insureds enter into a contract and then only obligates Omega to make payment as the work is performed. See Citizens Prop. Ins. Corp. v. Stieben, 200 So.3d 215, 215-16 (Fla. 2d DCA 2016); Citizens Prop. Ins. Corp. v. Blaha, 194 So.3d 411, 416 (Fla. 2d DCA 2016).

Reversed and remanded.

LaROSE, C.J., and CRENSHAW, J., Concur.

      . We note that, after the cause of action accrued in this case, the legislature adopted a five-part definition of "structural damage.” See § 627.706(2)(k), Fla. Stat. (2011); ch. 2011-39, § 22, at 570, Laws of Fla. This amendment does not apply retroactively, Sevila v. First Liberty Ins. Corp., 7 F.Supp.3d 1226, 1230 (M.D. Fla. 2014).

      . Neutral evaluation is a nonbinding method of alternative dispute resolution created specifically for sinkhole cases. § 627.7074, Fla. Stat. (2010). It is an informal proceeding in which each side presents its position to a qualified and neutral expert, who then issues a decision- that is admissible at trial. § 627.7074(12), (13). .

      . See, e.g., Shelton v. Liberty Mut. Fire Ins. Co., 25 Fla. L. Weekly Fed. D73a, 2013 WL 1663290 (M.D. Fla. Apr. 17, 2013), and cases cited therein.

      . The sinkhole endorsement contains a loss settlement provision which provides, in pertinent part:
      We may limit any payment for Sinkhole Loss to the actual cash value, not including any repairs below the foundation, until you enter into a contract for building stabilization or foundation repairs. After you enter into a contract, we shall pay the amounts necessary to begin and perform such repairs as the work is performed and the expenses are incurred, without requiring you to advance payment for such repairs.
      This provision is consistent with section 627.707(5)(b), Florida Statutes (2010),

      . For this same reason, we find no merit in Omega’s assertion that Gulati’s opinion could not be considered because Gulati did not personally perform testing "in compliance with Florida sinkhole testing standards.”


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Matthew BARLOW, Appellant, v. Jilla BARLOW, Appellee.
    Case No. 2D16-1837
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017

      Albert L. Alguadich, Jr., of Long, Murphy & Long, P.A., Naples; and Nicole L. Goetz of Nicole L. Goetz, P.L., Naples, for Appellant.
    Cynthia B. Hall of Silverio & Hall, P.A., Naples, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

In this appeal, Matthew Barlow, the Former Husband, challenges provisions in a final judgment of dissolution of marriage related to the calculation of alimony and child support, the award of the marital home to Jilla Barlow, the Former Wife, and a special provision requiring the parties to share the costs of major repairs to the former marital home. Because the trial court erred in the manner in which it included bonus income in the Former Husband’s gross and available net income, we reverse and remand for recalculation of the alimony and child support awards and for reconsideration of the feasibility of maintaining the marital residence. We affirm the final judgment of dissolution of marriage in all other respects.

The parties do not dispute that the Former Husband’s gross annual base salary at the time of the dissolution in 2015 was $101,712, or $8476 per month. In calculating the Former Husband’s total gross income, however, the trial court included the Former Husband’s 2013 annual bonus of $133,332.64, resulting in total gross income of $19,583.33 per month. “Section 61.30(2), Florida Statutes (2007), requires trial courts to consider bonuses in calculating a spouse’s income for purposes of child support, and section 61.08(2)(g) requires trial courts to consider ‘[a]ll sources of income available to either party’ in computing an award of alimony.” Drew v. Drew, 27 So.3d 802, 802 (Fla. 2d DCA 2010) (alteration in original). Thus, we have held that bonus income must be included in the calculations of both child support and alimony when it is regular and continuous. See id. (citing Parry v. Parry, 933 So.2d 9, 16 (Fla. 2d DCA 2006)); see also Vergara v. Vergara, 831 So.2d 251, 252 (Fla. 3d DCA 2002) (“[Bjefore a trial court can include a bonus in calculating net income for child support purposes, the bonus must be regular and continuous.”). In this case, the trial court erred in relying on the 2013 bonus—“the last received bonus prior to the date of filing as being the most accurate in terms of the Husband’s ability to pay.”

Instead, the trial court should have relied on the -2014 bonus, which was the most recent bonus information available to it at the time of the final hearing. See Tarkow v. Tarkow, 128 So.3d 82, 85 (Fla. 2d DCA 2013) (“The GM’s calculations of the Former Wife’s income ... should have reflected current reality.”); Laz v. Laz, 727 So.2d 966, 967 (Fla. 2d DCA 1998) (“[Current income ... should form the basis for the alimony award.”); Crowley v. Crowley, 672 So.2d 597, 600 (Fla. 1st DCA 1996) (“[A] spouse’s past income should not take precedence over uncontroverted evidence of his or her present income in determining ability to pay.”); Woodard v. Woodard, 634 So.2d 782, 783 (Fla. 5th DCA 1994) (“[T]he court should determine the husband’s current' income because it is his current income (or income expected in the immediate future) that constitutes' his ability to pay.”)'. The Former Husband offered unrefu'ted evidence, and the trial court found, that his 2014 bonus was $45,000. The Former Husband explained that the drastic reduction in the bonus—which was based on company profits and was paid in equal amounts to three brothers in' this family-owned business—was due to. the loss of several very large accounts between 2011 and 2013. There was no evidence indicating that the Former Husband’s bonus would increase in the near future. Thus, by using the 2013 bonus in calculating the Former Husband’s total gross income, the trial court effectively imputed income to the Former Husband without a valid basis for doing so. See Greenberg v. Greenberg, 793 So.2d 52, 55 (Fla. 4th DCA 2001) (“[T]he final judgment reflects no basis for disregarding the undisputed evidence that the husband’s income had been reduced .... ”); cf. Valentine v. Van Sickle, 42 So.3d 267, 272-73 (Fla. 2d DCA 2010) (observing that there was no evidence to support the conclusion that the Husband’s income, which had been artificially inflated by temporary economic conditions during the first part of 2008, would continue at that level in the future).

The calculation of the Former Husband’s total gross income, including bonus income, not only factors into the trial court’s determination of alimony and child support but may also factor into the court’s determination that it is financially feasible to maintain the marital residence. Consequently, on remand, the trial court should revisit its determinations concerning alimony, child support, and maintenance of the marital residence in light of its revised calculation.

Affirmed in part; reversed in part; remanded with instructions.

VILLANTI and SALARIO, JJ., Concur.


author: BADALAMENTI, Judge.

text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. Lisa M. NOCELLA, Respondent.
    Case No. 2D16-4696
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017.

      B. Richard Young and Joshua J. Hartley of Young, Bill, Boles, Palmer, and Duke, P.A., Pensacola, for Petitioner.
    No appearance for Respondent.
   BADALAMENTI, Judge.

GEICO General Insurance Company seeks a writ of certiorari to quash the trial court’s order joining it to the final judgment against its insured, Laura Franklin. We grant GEICO’s petition for certiorari and quash the trial court’s order.

Lisa M. Nocella was involved in an automobile accident with Ms. -Franklin, who carried a -GEICO automobile insurance policy. Ms. Nocella prevailed in a negligence action against Ms. Franklin and, on June 24, 2016, the trial court entered a final judgment awarding Ms. Nocella $222,119 in damages, reserving jurisdiction to determine attorney’s fees and taxable costs. On July 26, 2016, thirty-two days after entry of the final damages judgment, Ms. Nocella moved to join GEICO as a party defendant to the judgment against Ms. Franklin pursuant to section 627.4136(4), Florida Statutes.(2016). After a. hearing, the trial court entered a one-sentence order granting Ms. Nocella’s motion to join GEICO as a party defendant.

“To obtain a writ of certiorari, the petitioner must show (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002).

Section 627.4136(4) states that a liability insurer may be joined as a party defendant as follows: “At the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party .... ” Accord ACE Am. Ins. Co. v. HCP III of Bradenton, Inc., 913 So.2d 1280, 1281 (Fla. 2d DCA 2005) (explaining that “a liability carrier, may be joined at or before the time- judgment is entered against its insured”).

Florida Rule of Civil Procedure 1.530(g) sets a fifteen-day deadline to move to alter or amend a judgment as follows: “A motion to alter or amend the judgment shall be served not later than 15 days after entry of the judgment ....” (Emphasis added.) Our court has held that both the statute and the rule apply to the joinder of insurers to judgments against their insureds. Nova Cas. Co. v. Wilson Developers, LLC, 212 So.3d 477, 478 (Fla. 2d DCA 2017) (first citing ACE Am. Ins. Co., 913 So.2d at 1281; then quoting C.A. Seguros Catatumbo v. Herrera, 812 So.2d 576, 577 (Fla. 3d DCA 2002)). The latest that Ms. Nocella could have moved to join GEICO to the damages judgment was July 11, 2016. After the fifteen-day period set forth in rule 1.530(g) elapsed, the judgment became final and GEICO could no longer be added as a party. Nova Cas. Co., 212 So.3d at 478 (citing Herrera, 812 So.2d at 577-78).

Here, it is undisputed that Ms. No-cella filed her motion to join GEICO on July 26, 2016—thirty-two days after entry of the final judgment and fifteen days after July 11, 2016. Accordingly, she failed to . satisfy both section 627.4136(4) and the fifteen-day requirement in rule 1.530(g). Therefore, the trial court departed from the essential requirements of the law by granting Ms. Nocella’s motion to join GEI-CO to the damages judgment. See Nova Cas. Co., 212 So.3d at 479.

The trial court’s departure resulted in irreparable harm because, after fifteen days, the judgment against Ms. Franklin became final, preventing GEICO from disputing Ms. Franklin’s entitlement to coverage or the amount of coverage under GEI-CO’s policy for that matter. Id. (“The trial court departed from the essential requirements of the law by joining Nova as party to a final judgment that had been already rendered. Nova is irreparably harmed because it has been made responsible for coverage without having been given an opportunity to raise any defenses it might have to the determination of entitlement to coverage or the amount of coverage.”). Accordingly, we grant GEICO’s petition for certiorari and quash the trial court’s order joining GEICO to Ms. Nocella’s judgment against Ms. Franklin.

Petition granted; order quashed.

VILLANTI and CRENSHAW, JJ., Concur.

      . Fifteen days from June 24, 2016, is Saturday, July 9, 2016. Accordingly, Ms. Nocella would have had until Monday, July 11, 2016, to file her motion for joinder. See generally Fla. R. Jud. Admin. 2.514(a)(1)(C) (explaining that, where the last day of a time period specified in a rule of procedure falls on a weekend or a legal holiday, the period continues to run until the next day that is not a weekend or a legal holiday).


author: CASANUEVA, Judge.

text:
    Erika and Achim GINSBERG-KLEMMT, Appellants, v. SARASOTA COUNTY, Appellee.
    Case No. 2D16-4737
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017

      Erika and Achim Ginsberg-Klemmt, pro se.
    Stephen E. DeMarsh, County Attorney, and David M. Pearce, Assistant County Attorney, Office of the County Attorney, Sarasota, for Appellee.
   CASANUEVA, Judge.

Erika and Achim Ginsberg-Klemmt appeal the dismissal with prejudice of the first two counts of their complaint against Sarasota County. We conclude that the trial court did not err in dismissing the two counts and affirm.

The Ginsberg-Klemmts sought to construct a dock on vacant real property located on Siesta Key in Sarasota County and submitted a permit request to the Sarasota County Water and Navigation Control Authority. The request was denied and the denial was the subject of an unsuccessful administrative appeal. The Ginsberg-Klemmts then sought review of that decision by filing a petition for writ of certiorari in the circuit court. In addition to filing the petition, the Ginsberg-Klemmts also filed the case at bar in the circuit court which consisted of a three-count amended complaint seeking declaratory relief. Sarasota County filed a motion to dismiss the amended complaint, and the trial court dismissed the first two counts with prejudice and dismissed the third count without prejudice. It is the order entered on that motion that is the subject of this appeal.

The trial court’s order dismissing counts I and II ruled that those two counts raised issues which are the subject of the pending certiorari proceeding, and it ruled that the Ginsberg-Klemmts could not seek declaratory relief for the same issues in this action. To the extent that the trial court’s order dismissed with prejudice those matters that are properly the subject of the pending certiorari petition, we affirm.

We do not read the order as dismissing other potential claims with prejudice. The trial court’s order contains the following language: “Plaintiffs shall have thirty (30) days to file a Second Amended Complaint.” The Ginsberg-Klemmts were afforded an opportunity to replead, in proper form, such causes of action as they may deem appropriate, including a claim that the actions of the County constitute a regulatory taking or other such causes based on statute, quasi-legislative action, or any other relief as may be appropriate. A reading of the amended complaint contains allegations which may be a' component of such theories of relief.

However, we note that to properly state a cause of action, a party must comply with Florida- Rule of Civil Procedure 1.110(b)(2), which provides that when pleading a cause--of action, a party must set forth a “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” In this instance, the Giñsberg-Klemmts included within their pro se amended complaint allegations that obscured the nature of their sought-after causes of action. Some allegations con-' tained events that were unrelated and could not be construed as an ultimate fact pertaining to the theory of relief sought to be pleaded,

And finally, as we do not know on the record presently before this court the outcome of the certiorari action, it may be premature or unnecessary to proceed with a. regulatory takings claim. We make no comment pertaining to whether any such claim or claims possess merit, only that they may be alleged,

Affirmed.

SLEET and SALARIO, JJ„ Concur.

      . The Ginsberg-Klemmts’ first complaint was dismissed without prejudice.

      . The present appeal involves circuit court case number 2016-CA-002847-NC. The petition for writ of certiorari involves certiorari circuit court case number 2016-CA-000917-NC.


author: MORRIS, Judge.

text:
    Michael W. BOND, Appellant, v. Lauren B. BOND, Appellee.
    Case No. 2D16-5659
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017.

      Michael W. Bond, pro se.
    Linda H. Fried and Devin J. Mace of Fried & Fried, P.A., Fort Myers, for Ap-pellee.
   MORRIS, Judge.

Michael Bond, the husband, appeals two nonfinal orders entered in December 2016 in the underlying dissolution of marriage proceedings between him and the wife, Lauren Bond. The first order denies, among other things, the husband’s petition to reinstate visitation, and the second order grants the wife’s requests for temporary child support, alimony, and attorney’s fees. We reverse portions of the two orders for the reasons explained below.

The husband contends that the child support guidelines worksheet used by the trial court failed to include the $1102.16 that the husband pays for the monthly mortgage on the marital home in which the wife and the child reside. We agree. When one party pays the mortgage payment or housing éxpenses of another party, it is considered an in kind contribution for purposes of the child support guidelines. § 61.30(2)(a)(13), Fla. Stat. (2016); Jacob v. Jacob, 26 So.3d 11, 12 (Fla. 2d DCA 2009);(“Although the trial court found that the [hjusband was paying for the marital home mortgage, utilities, and upkeep, the child support guidelines worksheet demonstrates that the trial court failed to factor in those contributions in determining the award. Such is an abuse of discretion.”); Schafstall v. Schafstall, 211 So.3d 1108, 1111 (Fla. 3d DCA 2017) (“[T]he trial court was required to include in its calculation of the former wife’s gross monthly income the value of the mortgage payments paid by the former husband as in kind contributions.”).

At the hearing on the wife’s motions, the husband’s payment of the mortgage was considered by the trial court for purposes of the alimony award and the trial court stated that it wanted to see a corrected guidelines worksheet that included the payment of the mortgage. However, the actual guidelines worksheet' used by the trial court in its award of child support does not reflect the husband’s payment of the mortgage. Because the law is clear and the trial court indicated its intent to factor the husband’s payment of the mortgage into the worksheet, we reverse the award of child support on this basis and remand for recalculation of child support with the inclusion of this amount on the child support guidelines worksheet.

The husband also contends that the trial court erred in awarding the wife attorney’s fees based on a finding that he had the ability to pay due to money the husband borrowed from his friend, who is also his boss. The trial court awarded temporary attorney’s fees in the amount of $10,000 to the wife and ordered that the husband pay $7500 from a designated account. The husband testified that this $7500 was part of a $20,000 loan that the husband received from his friend and that this $7500 was the amount remaining after he had paid for the child’s therapy and the husband’s attorneys in the dissolution case and injunction case. The husband was obligated to pay the loan back at $500 per month.

“The financial resources that should be considered in assessing the relative financial ability of the parties are the resources the parties have available without their having to look beyond the financial resources subject to their individual control.” Azzarelli v. Pupello, 555 So.2d 1276, 1277 (Fla. 2d DCA 1989). “[T]he general rule is that the trial court may only consider the ’financial resources of the parties and not the financial assistance of family or friends.’ “ Rogers v. Rogers, 824 So.2d 902, 903 (Fla. 3d DCA 2002) (quoting Bromante v. Bromante, 577 So.2d 662, 663 (Fla. 1st DCA 1991)). In Rogers,' the Third District held that the trial court erred in considering loans that the husband’s parents had made to the husband in part because “the husband continues to be legally indebted to his parents.” Id. at 904. The court reversed the attorney’s fee award because “the loans were a primary factor in the lower court’s finding that the husband had the ability to pay” and remanded for reconsideration of “the wife’s motion for attorney’s fees and costs based upon the parties’ financial resources, not the financial resources of family or friends.” Id.; see also Bromante, 577 So.2d at 663 (holding that in determining that the wife did not have the need for fees, the trial court erred in considering $5000 that she borrowed from her father). The trial court appeared to base its finding of the husband’s ability to pay on the existence of the $7500 that was remaining from the husband’s loan of $20,000. Based on the above ease law, we reverse the portion of the order granting the wife attorney’s fees and remand for the trial court to determine the husband’s ability to pay without consideration of the loan from the husband’s friend.

The husband further argues that the trial court violated his constitutional right to visitation with his child by denying all visitation- and by failing to provide a path to reunification. However, both parties report that on June 5, 2017, the trial court entered an order granting the husband’s request to reinstate visitation and providing a schedule for the husband’s unsupervised visitation with his son. This recent order renders moot the visitation issue in this appeal, and we affirm that portion of the December 2016 order. In affirming, we express no opinion on the issue of make-up visitation, an issue which the trial court declined to consider and which the trial court noted the husband could raise at a later date.

The husband raises other issues on appeal, which we conclude are without merit. We reverse the portions of the orders awarding child support and attorneys’ fees to the wife and remand for further proceedings in accordance with this opinion. We affirm in all other respects.

Affirmed in part; reversed in part; remanded.

LaROSE, C.J., and SALARIO J., Concur.