author: Damoorgian, J.

text:
    Chasmin JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1805
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West'Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   ON CONFESSION OF ERROR

Damoorgian, J.

Appellant, Chasmin Jones, was arrested and charged with two counts of sale, delivery, or possession with intent to sell of hydromorphone within 1000 feet of a school and two counts of possession of hydromorphone. Thereafter, Appellant’s counsel filed a pretrial motion for a hearing and appointment of an expert to evaluate Appellant’s competency. The court granted Appellant’s motion, appointed an expert to evaluate Appellant, and set the matter for hearing. However, the record does not reflect that the scheduled competency hearing ever occurred. The case proceeded to trial wherein Appellant was adjudicated guilty on all charges. On appeal, Appellant argues that the court fundamentally erred when it ordered, but never conducted, a competency evaluation. The State properly concedes error.

“The issue of ‘[wjhether the circuit court fundamentally erred in failing to hold a competency hearing presents a pure question of law subject to de novo review.’ ” Baker v. State, 221 So.3d 637, 639 (Fla. 4th DCA 2017) (quoting A.L.Y. v. State, 212 So.3d 399, 402 (Fla. 4th DCA 2017)).

Florida Rule of Criminal Procedure 3.210(b) provides that:

(b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing. Attorneys for the state and the defendant may be present at any examination ordéred by the court.

(emphases added).

Based on the plain language of Rule 3.210(b), once a court has reasonable grounds to question the defendant’s competency, it must order a competency hearing. Baker, 221 So.3d at 640-41. Once ordered, the court must actually conduct the competency hearing and issue an order on the defendant’s competence. Id.; see also Deferrell v. State, 199 So.3d 1056, 1061 (Fla. 4th DCA 2016) (neither expert reports finding defendant competent nor waiver abrogates the court’s duty to hold a competency hearing once ordered). Failure to do so is reversible error. Baker, 221 So.3d at 641.

Here, the court ordered a competency hearing but there is no indication in the record that the hearing ever actually occurred. Thus, as conceded by the State, we must' reverse. As provided by this Court in Baker: “[o]n remand, if the court can make a nunc pro tunc finding as to [Ajppellant’s competency based upon the existence of evaluations performed contemporaneous with trial and without relying solely on a cold record, and can do so in a manner which abides by due process guarantees, then it should do so and enter a corresponding written order.” Id. “However, if the court finds, for any reason, that an evaluation of appellant’s competency at the time of trial cannot proceed in a way that ensures [Ajppellant’s due process rights, then the court should adjudicate [his] current competency and, if [he] is competent, conduct a new trial on all counts.” Id. at 641-42.

Reversed and remanded with instructions.

Gross and Taylor, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Gerri Ann CAPOTOSTO, Appellant, v. FIFTH THIRD BANK, an Ohio banking corporation, Appellee.
    No. 4D16-4197
    District Court of Appeal of Florida, Fourth District.
    [November 22, 2017]
    - Gerri Ann Capotosto, Pompano Beach, pro se.
    Stacey S. Fisher of Sprechman & Fish-' er, P.A., Miami, for appellee.
   Per Curiam.

The defendant, Gerri Ann Capotosto, timely appeals a final summary judgment awarding the plaintiff, Fifth Third Bank, $57,691.57 in damages for the defendant’s breach of a promissory note. We affirm the entry of summary judgment in favor of the plaintiff, but remand for the trial court to correct the amount of the judgment.

. The plaintiff sued the- defendant for’ breach of a promissory note executed in connection with a car loan. The. defendant filed an Answer and Affirmative Defenses, claiming primarily that, the alleged debt had been satisfied and that the plaintiff lacked standing.

The plaintiff moved for summary judgment, filed an affidavit in support of summary -judgment, and later filed affidavits as to interest, costs, and attorney’s fees. The defendant filed an unsworn response in opposition to summary judgment, but did not file any affidavits.

The trial court entered a final summary judgment awarding the plaintiff $57,691.57 in damages, broken down as follows:

$ 19,562.79 Principal:

$ 620.25 Costs: .

$ 13,289.83 Pre-Accrued Interest:

Interest: • $ 22,818,70

Attorney’s Fees: '•$ 2.00Q.00

Total $ 57,691.57

The sum of the figures in the final judgment is $58,291.57, not $57,691.57. According to the initial brief, the final summary judgment was “later amended to $58,-291.51,” However, there is no amended final summary judgment in the record on appeal.

The defendant now argues that there are triable issues of fact and that summary judgment was granted in error. According to the defendant, one such issue of fact concerns the amount of damages awarded to the plaintiff.

The standard of review of an order granting summary judgment is de novo. Fla. Atl. Univ. Bd. of Trustees v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010).

A movant is entitled to summary judgment “if the pleadings and summary judgment evidence on file show that there is no genuine issue as- to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P, 1.510(c)'. “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). However, once the movant’s initial burden is satisfied, “the opposing party must come forward with counterevidence sufficient , to reveal a genuine issue,” Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979).

A litigant cannot avoid summary judgment by merely asserting a-fact without any evidence to support it. Nat’l Airlines v. Fla. Equip. Co. of Miami, 71 So.2d 741, 744 (Fla. 1954). Nor may a defendant raise an unpled affirmative defense as a basis for resisting a motion for summary judgment. Accurate Metal Finishing Corp. v. Carmel, 254 So.2d 556, 557 (Fla. 3d DCA 1971).

Here, we find that the record evidence established—without genuine issue of material fact—that the defendant defaulted-on the promissory note, that the plaintiff owned the loan, and that the defendant owed the plaintiff damages, consisting of $19,562.79 in principal and $22,818.70 in -total interest, together with attorney’s fees and costs. The defendant did not come forward with any counterevi-dence to the plaintiffs summary judgment evidence. Therefore, we affirm the entry of summary judgment in favor of the plaintiff.

On remand, however, we instruct the trial court to eliminate the “Pre-Accrued Interest” of $13,289.83 from the damages award. This specific figure was not supported by any record evidence. The plaintiffs Affidavit of Interest Calculation stated that the “Total Interest” was $22,818.70, and stated nothing about a separate figure for Pre-Accrued Interest. Further, on remand, the trial court should ensure that the total.damages award is a correct reflection of the sum of the specific damages figures.

Affirmed, but remanded for correction of the judgment.

Warner, Gross and Taylor, JJ., concur.

      . It is unclear if the defendant meant to. say “$58,291.57” or if the alleged amendment really states "58,291.51,”

      .- The defendant also appears to argue that the plaintiff wrongfully repossessed her vehi-ele and that the alleged losses she suffered as a result should offset the plaintiff's damages, but she never pleaded that defense in her answer.


author: Forst, J.

text:
    Gilbert RAMOS, Appellant, v. Paula RAMOS, Appellee.
    No. 4D16-4028
    District Court of Appeal of Florida, Fourth District.
    [November 29, 2017]

      Chet E. Weinbaum, Fort Pierce, for appellant.
    No appearance for appellee.
   Forst, J.

Appellant Gilbert Ramos (“Former Husband”) appeals the trial court’s final judgment of dissolution of marriage. He argues that the trial court committed several errors, including labeling his vending machine business and truck as marital assets for purposes of equitable distribution, incorrectly valuing his coin collection, and ordering him to obtain life insurance. We agree, in whole or in part, with each of Former Husband’s arguments on appeal and accordingly reverse and remand for the trial court to take appropriate action consistent with this opinion.

Background

On February 28, 2014, Former Husband filed a petition for dissolution of marriage. He and appellee Paula Ramos (“Former Wife”) married on December 3, 2000, making the marriage a little more than thirteen years old at the time of filing. In his petition, Former Husband requested equitable distribution, that Former Wife purchase life insurance for the benefit of their two minor children, and that she pay his attorney’s fees. In particular, he argued that his vending machine business was exempt from equitable distribution because he had started the business prior to the marriage. In her response, Former Wife denied, among other things, that the vending machine business was exempt.

At trial, the parties first discussed the vending machine business. Former Husband testified that he started the business ten years before the parties were married. Then, he testified that during the course of the marriage, the value of the business went “down. A lot down.” Before' he was married, he had “eighty plus machines, both snack and soda,” and that all but one or two of those machines were “making money.” Former Wife did not disagree, and testified that the business had multiple machines across thirty locations. But then, Former Husband noted, the business had only “twenty-three machines, [at] .seventeen locations” at the time of dissolution. Former Wife agreed that there were now only about twenty-three machines.

The parties next discussed the value of a marital coin collection. Former Wife introduced a hand-written list previously made by Former Husband noting that he had about $36,000 in coins. She explained he created the list around 2011. Former Wife also admitted some pictures she took of the coins during this period of time. Former Husband disputed that he ever had $36,000 in coins. Regardless, he testified that their value at the time of filing the petition for dissolution was “about ten, twelve thousand dollars total,” and, at the time of trial, the value of the coins was “zero.” Former Husband explained that, since 2014, he had to use the coins “to supplement and pay for house bills,” “buy[ ] my own food, pay[ ] electric, water, TV, phone, et cetera,” and buy a Dodge truck. The truck cost $9,000. Former Wife disagreed that Former Husband spent the coins. Still, she noted she used them to buy an $800 cruise ticket.

The trial court entered its final judgment of dissolution of marriage. The court equitably distributed the vending machine business,..finding that it was marital “in that it comingled [sic] marital funds during the party’s marriage.” The court also equitably distributed the coin collection, finding that it was worth $36,000: “18 boxes of quarters, each containing $2,000. The Wife provided clear and convincing evidence that the boxes existed and that they contained the quarters. The Husband has removed the boxes for his benefit.” Next, to protect its award of. child support, the court ordered Former Husband to “obtain within 30 days of this.order a life insurance policy in the amount of $25,000.00, with the children'listed as beneficiaries.” The court further found that the Dodge truck was marital property, subject to equitable distribution.

Analysis

A. Equitable Distribution of the Vending Machine Business

“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion. However, ‘[a] trial court’s legal conclusion that an asset is marital or nonmarital is subject to de novo.review.’” Berg v. Young, 175 So.3d 863, 867 (Fla. 4th DCA 2015) (alteration in original) (quoting Bell v. Bell, 68 So.3d 321, 328 (Fla. 4th DCA 2011)).

Former Husband first argues on appeal that the 'trial court erred in classifying his vending machine business as a marital asset, and thus equitably distributing it. The business was a premarital asset, and so only its enhanced value during the marriage should have been distributed. Below, however, the court determined that the whole business was-a marital asset and subject to equitable distribution because it was commingled with marital funds during the marriage.

The trial court erred. As a preliminary matter, we note that there was no evidence óf commingling, and so our review turns to whether there was ahy enhancement of value to the premarital business. Section 61.075(6)(a)l.b., Florida Statutes (2016), states that only the enhanced value of non-marital assets resulting from the efforts of either party during the marriage will become marital. Our ease law is reflective of the statute. See Pereboom v. Pereboom, 959 So.2d 1205, 1206 (Fla. 4th DCA 2007); Anson v. Anson, 772 So.2d 52, 55 (Fla. 5th DCA 2000); Hanks v. Hanks, 553 So.2d 340, 341-42 (Fla. 4th DCA 1989). Here, pursuant to Pereboom, Former Husband satisfied his initial burden at trial of proving that he owned the business ten years before the marriage. Pereboom, 959 So.2d at 1206. Thus, as Pereboom next mandates, the burden shifted to Former' Wife to prove that the premarital business in some way became partly marital through an enhancement of value. Id.' However, just like the former wife in Pereboom, she failed to do so. Id. Accordingly, we reverse the court’s equitable distribution of the vending machine business.

We note that, if anything, the admitted evidence appears to show that the business actually decreased in value throughout the marriage. Former Husband testified that during the marriage, the value of the business declined, and, ultimately, Former Wife agreed that at the time of dissolution, the business had only twenty-three ma-chinés, considerably less from the “eighty plus machines” that Appellant testified he had at the time of marriage. Thus, it appears that the value of the business decreased over time, such that no part of it became a marital asset subject to equitable distribution.

B. Valuation of the. Marital Coin• Collection and Equitable Distribution of the Dodge Truck ■

This Court reviews the trial court’s valuation of a marital asset for purposes of equitable distribution for an abuse of discretion. Dorworth v. Dorworth, 176 So.3d 336, 338 (Fla. 5th DCA 2015). “A valuation not supported by competent substantial evidence fails.” Banton v. Parker-Banton, 756 So.2d 155, 156 (Fla. 4th DCA 2000).

Former Husband contends that the trial court erred in its valuation of the marital coin' collection for purposes' of equitable distribution. At' trial, Former Wife presented evidence that the value of the coins in 2011 was $36,000. In its final judgment, the court decided to adopt this $36,000 valuation. However, Former Husband argued below and on appeal, there was clear, uncontradicted evidence that by the time of filing the petition for dissolution in 2014, the value of the coins was “about, ten, twelve thousand dollars total.” Moreover, by the time of trial, the value of the coins was “zero.” As noted above, Former Husband testified that he used the coins to pay his living expenses. Although Former Wife denied these assertions of depletion, she appeared to contradict herself by stating that she herself took $800 in coins to buy a cruise ticket.

A final judgment of any distribution of marital assets or liabilities “shall be supported’ by factual findings in the judgment or order based on competent substantial evidence .... ” §' 61.075(3), Fla. Stat. The appropriate date for determining assets “to be identified or classified as marital assets” in this case is “the date of the filing of a petition for dissolution of marriage.” § 61.075(7), Fla. Stat. Moreover, “[a]s a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.” Roth v. Roth, 973 So.2d 580, 584 (Fla. 2d DCA 2008).

The evidence indicates that the coin collection was significantly less than $36,000 as of the commencement of the dissolution proceedings, and was further depleted during the course of the dissolution. Former Husband maintains that none of the depletion/dissipation was a result of marital misconduct. We recognize that the trial court could have valued the coins based on an express finding of dissipation. However, “[t]o include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.” Weymouth v. Weymouth, 87 So.3d 30, 36 (Fla. 4th DCA 2012).

At first glance, it appears the court sought to do just this by stating that Former Husband “has removed the boxes for his benefit.” However, Former Husband’s use of the coins, to pay for household expenses, does not necessarily constitute “intentional misconduct.” See Roth, 973 So.2d at 585 (“The misconduct necessary to. support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse ■ disapproves.”); Bush v. Bush, 824 So.2d 293, 294 (Fla. 4th DCA 2002) (holding that the former husband’s exercise of stock options to “satisfy, the couple’s financial obligations” constituted assets or sums that.should not have been included in the equitable distribution scheme).

In the absence of specific findings with respect to the valuation of the coin collection, we remand this issue. See Santiago v. Santiago, 51 So.3d 637, 639 (Fla. 2d DCA 2011) (reversing and remanding because the lack of findings in connection with the equitable distribution scheme frustrated appellate review). On remand, “the trial court should not include assets' depleted by éither party in the equitable distribution scheme,” absent a finding of “waste of marital assets on the part of” that party. Bush, 824 So.2d at 294. The trial court is further instructed on remand to not once again'double count the Dodge truck in the equitable distribution decision (the trial court awarded Former Wife both half the value of the truck and half the value of the coins used to, purchase the truck).

C. Order to Purchase Life Insurance

We review'an order-requiring a party to purchase life insurance in connection with an award of child support for an abuse of discretion. See Gepfrich v. Gepfrich, 510 So.2d 369, 371 (Fla. 4th DCA 1987).

Former Husband argues that the trial court erred in ordering him to “obtain within 30 days of this order a life insurance policy in the amount of $25,000,00, with the children listed as beneficiary.” He notes that pursuant to Guerin v. DiRoma, 819 So.2d 968 (Fla. 4th DCA 2002), the court needed to explain why such life insurance was necessary, and that he had the ability to pay for such insurance.

Former Husband is. correct. Without these requisite findings, the trial court could not order Former Husband to purchase life insurance. Section 61.13(l)(c), Florida Statutes (2016), states: “To the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.” § 61.13(l)(c), Fla. Stat. (emphasis added). In Guerin, this Court held that this statutory language requires the trial court to make an explicit finding of the circumstances meriting an award of life insurance. Guerin, 819 So.2d at 970. This Court also noted that the trial court must make a separate determination of a party’s ability to pay for the life insurance, which the trial court here did not do. Id. Accordingly, this matter is reversed and remanded.

Conclusion

The final judgment of the dissolution’s equitable distribution scheme must be addressed on remand. First, we reverse the trial court’s identification of the premarital vending machine business as a marital asset to be equitably distributed. Second, we reverse and remand the court’s valuation of the coin collection, requiring that the court make specific findings, as set forth above, in valuing this coin collection; the valuation should not include dissipation of the collection’s value absent a specific finding of intentional misconduct. Finally, we reverse and remand the court’s order that Former Husband purchase life insurance; any such requirement must be supported by Gtterm-mandated findings.

Reversed and Remanded.

Damoorgian and Conner, JJ., concur.

      . Former Wife stated at trial that she paid Former Husband back for the cruise ticket, but the fact remains that $800 in coins were removed from the collection.


text:
    Robert A. SMITH, Appellant, v. Christine A. LOFFREDO-SMITH, Appellee.
    No. 4D17-190
    District Court of Appeal of Florida, Fourth District.
    [November 29, 2017]

      Philip M. Chopin of Chopin & Chopin, LP, West Palm Beach, for appellant.
    Craig A. Boudreau of Boudreau Law, West Palm Beach, for appellee.
   Forst, J.

The final judgment of dissolution of marriage between the two parties followed legal proceedings that focused on the custody of, and financial support for, the couple’s three children. Appellant Robert Smith now raises four issues on appeal, including the trial court granting Appellee Christine Loffredo-Smith sole parental responsibility for the children. Appellee cross-appeals, challenging the court’s use of the “Model Parental Time Sharing Schedule,” which significantly expanded Appellant’s time with the children.

The standard of review for a child support award is abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1202-1203 (Fla. 1980); McKenna v. McKenna, 31 So.3d 890, 891 (Fla. 4th DCA 2010). Abuse of discretion is generally limited to situations “[w]hen a trial judge’s decision is irrational and inconsistent with established legal principles,” Thomas v. Thomas, 724 So.2d 1246, 1251 (Fla. 4th DCA 1999), “where no reasonable man would take the view adopted by the trial court.” Canakaris, 382 So.2d at 1203. Finding no abuse of discretion with respect to the child support award, with the one exception discussed below, we affirm the trial court on all issues addressed by the appeal and the cross-appeal without further discussion. We find error with the award of arrearage and reverse on this issue, remanding it to the trial court for further proceedings.

Background

Following the issuance of a temporary relief order in early 2013, Appellant began paying $1,249 a month in child support. These payments were discontinued following Appellant’s hospitalization for over six months. He left the hospital permanently disabled, and in arrears of his support payments. Appellant started collecting $1,018 monthly in social security disability payments, but continued to not pay child support, until the final hearing for divorce. Neither party challenges the trial court’s reduction in the level of prospective child support commencing with the final judgment of dissolution, in recognition of Appellant’s current financial and employment status. However, Appellant does contest the imposition of the arrearage payment obligation, as well as the trial court setting the arrearage payments at the $l,249-a-month level.

Analysis

The trial court erred in ordering Appellant to make arrearage payments that were as high as the temporary relief payments without first making a finding that Appellant actually possessed the ability to pay the arrearage. See Orsini v. Orsini, 909 So.2d 558, 560 (Fla. 4th DCA 2005) (reversing and remanding on this issue because such a finding is required). Appellant certainly made a case for his inability to pay the arrearage: he was first in a coma for six months and, afterwards, without employment and fully dependent on his social security disability payments that were less in amount than his child support obligation. The trial court correctly recognized Appellant’s post-hospitalization financial situation when it set his prospective child support obligation at $407, to be paid from his social security disability-income. However, the court did not address Appellant’s ability to pay his retrospective arrearage - .payments for the roughly one-year period preceding the final judgment of dissolution, a period during which he was hospitalized and subsequently without employment. ■

Conclusion

The final-'judgment of dissolution is affirmed in-all respects except for the issue; of child support arrearage payments. On remand, the trial court must conduct a new needs and ability analysis with respect to the roughly one-year period for which ar-rearage payments were ordered, focusing on the purported reduction of Appellant’s income during this timeframe (counter-balanced by any social-security disability payments he may have received for this interval).

Affirmed in. part, Reversed and Remanded in part.

Levine and Kuntz, JJ., concur.


author: PER CURIAM.

text:
    Sylvester PETERSON, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-333
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 10, 2017
    Sylvester Peterson, Lowell, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincenb-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted,, A copy of this opinion shall be filed with the trial court and ]oe treated as the notice of appeal from the January 28, 2016, order denying Petitioner’s pro se motion to correct illegal sentence, filed in Case No. 2004-033118-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., SAWAYA, PALMER, JJ. concur.


text:
    Stanford Deon LEWINSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-0735
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 16, 2017
    James S. Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General,. Daytona Beach, for Appellee.
   PER CURIAM.

Stanford Lewinson appeals his 30-year sentence for aggravated battery with a firearm on a ‘ person 65 years of ágé' or older. He argues the trial'court erred in sentencing him prior to a 'competency hearing when reasonable grounds existed to question his competency to 'be sentenced. We agree and reverse.

Lewinson was charged by Information with home invasion robbery with a firearm, burglary of a,dwelling with an assault or battery, and aggravated battery with a firearm on a person 65 years of age or older. Prior to trial,. Lewinson’s attorney filed a motion requesting a competency hearing. In response, the court appointed Dr. Jeffrey Danziger to examine Lewinson and set the matter for hearing. Dr. Dan-ziger ultimately opined that Lewinson was malingering and that he was competent to proceed. The trial court agreed and found Lewinson to be competent. Thereafter, the case proceeded to trial.

Lewinson behaved appropriately throughout the evidentiary portion of the trial. However, while the trial court was charging the jury, Lewinson exclaimed, “I can’t take this no more,” while motioning with his hand. The jury was removed, after which Lewinson stated, “I just want to kill myself.” During the outburst, Lewinson apparently cut himself with his fingernail, which caused him to bleed. The incident prompted the trial court to remove Lewin-son from the courtroom for the duration of-the trial. The trial court also ordered Lew-inson reevaluated for competency prior to sentencing and reappointed Dr. Danziger to conduct the evaluation.

Despite ordering the evaluation, the trial court proceeded to sentencing without Dr. Danziger’s report and without conducting a competency hearing. This was error.

“When criminal proceedings are held against a mentally incompetent defendant, the defendant’s constitutional right of due process is denied.” Maxwell v. State, 974 So.2d 505, 509 (Fla. 5th DCA 2008) (citing Hill v. State, 473 So.2d 1253, 1259 (Fla. 1985); Molina v. State, 946 So.2d 1103, 1106 (Fla. 5th DCA 2006)). If a defendant is determined to be incompetent after being found guilty at trial, but prior to sentencing, the trial court shall postpone sentencing and proceed pursuant to Florida Rule of Criminal Procedure 3.210. Fla. R. Crim. P. 3.214.

Rule 3.210(b) provides:

If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing. Attorneys for the state and the defendant may be present at any examination ordered by the court.

Fla. R. Crim. P. 3.210(b) (emphasis added). Sentencing is a “material stage” of the proceedings. Fla. R. Crim. P. 3.210(a)(1).

The question for the court on a motion to determine competency is “whether there is [a] reasonable ground to believe the defendant may be incompetent, not whether he is incompetent.” Tingle v. State, 536 So.2d 202, 203 (Fla. 1998) (quoting Scott v. State, 420 So.2d 595, 597 (Fla. 1982). As we stated in Maxwell:

Even when a defendant has previously been found to be competent, the trial court must remain receptive to revisiting the issue if circumstances change. Hunter v. State, 660 So.2d 244, 248 (Fla. 1995). “[A] prior determination of competency does not control when new evidence suggests the defendant is at the current time incompetent.” Nowitzke v. State, 572 So.2d 1346, 1349 (Fla. 1990). This is a continuing obligation, which may require the trial court to revisit the issue after a defendant has been declared competent to proceed. Molina, 946 So.2d at 1106 (citing Nowitzke, 572 So.2d 1346; Culbreath v. State, 903 So.2d 338 (Fla. 2d DCA 2005)).

974 So.2d at 510. Moreover, once a trial court has reasonable grounds to question a defendant’s competency, the trial court is required by rule 3.210(b) to hold a competency hearing, and failure to do so is error. Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003).

Accordingly, here, once the trial court ordered that Lewinson be reevaluated pri- or to sentencing, it was required to follow the procedure outlined in rule 3.210(b) and conduct a hearing. See Carrion, 859 So.2d at 565. The trial court having failed to do so, we are compelled to reverse the sentence imposed on Lewinson and remand for a competency hearing.

REVERSED AND REMANDED.

ORFINGER, BERGER and LAMBERT, JJ., concur.

      . Lewinson does not contest his conviction,

      . After sentencing, trial counsel requested that the trial court order Lewinson reevaluated prior to a separate trial on unrelated charges. The trial court granted counsel's request.


author: PER CURIAM. EVANDER, J.,

text:
    VENTURES TRUST 2013-I-NH, BY MCM CAPITAL PARTNERS, LLC, Its Trustee, Appellant, v. Dana M. JOHNSON and Robin L. Johnson, Appellees.
    Case No. 5D16-1020
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 30, 2017
    Shawn Taylor, of Deluca Law Group, PLLC., Fort Lauderdale, and Hope T. Cannon, of Bradley Arant Boult Cummings LLP, Birmingham, Alabama, for Appellant.
    J. Russell Collins and Vincent L. Sullivan, of Rusty Law, LLC, St. Augustine, for Appellees.
   PER CURIAM.

AFFIRMED.

BERGER and EDWARDS, JJ., concur.

EVANDER, J., concurs, with opinion.

EVANDER, J.,

concurring.

Appellant argues, inter alia, that it was error for the trial court to dismiss its foreclosure action on statute of limitations grounds where the complaint alleged defaults both within and outside the five-year statute of limitations. Because this argument was not preserved below, I agree that affirmance is appropriate.


text:
    John Henry TAYLOR, Jr., Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D16-4350
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 21, 2017
    John Henry Taylor, Jr., Lowell, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee, State of Florida.
    No Appearance for other Appellee.
   PER CURIAM.

AFFIRMED, -without prejudice to Taylor seeking relief in Bay County. See Stokes v. State, 3 So.3d 425, 425-26 (Fla. 3d DCA 2009) (quoting Brinson v. State, 988 So.2d 665, 665-66 (Fla. 3d DCA 2008)).

ORFINGER, BERGER and EISNAUGLE, JJ„ concur.


text:
    Jamie C. PATTERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1071
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Jamie C. Patterson, pro se.
   PER CURIAM.

Affirmed. See Patterson v. State, 197 So.3d 560 (Fla. 2d DCA 2016) (table decision); McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000); Patterson v. Crosby, No. 8:03-CV-411-T-17TBM, 2005 WL 1705502 (M.D. Fla. July 19, 2005).

NORTHCUTT, KHOUZAM, and LUCAS, JJ„ Concur. .-


text:
    Crystal PURCELL, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2369
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Robert Wesley, Public Defender, Orlando, and Eileen Forrester, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial Court and be treated as the notice of appeal from the May 19, 2017, Judgment and Sentence, in Case No. CF15-12764-0, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, LAMBERT and EISNAUGLE, JJ., concur.


author: Levine, J.

text:
    W.K. and M.K., foster parents, and Guardian Ad Litem Program, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, and Adoption by Shepherd Care, Appellees.
    No. 4D17-1549
    District Court of Appeal of Florida, Fourth District.
    September 27, 2017

      Roger Ally of the Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellants W.K. and M.K., foster parents.
    Christian Pietka and Sara Elizabeth Goldfarb, Sanford, for appellant Guardian Ad Litem Program. .
    Trey E. Miller of the Law Office of Trey E. Miller III, P.A., Fort Lauderdale, for appellee Adoption by Shepherd Care.
    No brief filed for appellee Department of Children and Families.
   ON MOTION FOR REHEARING

Levine, J.

We deny the Guardian Ad Litem Program’s motion for rehearing, withdraw our previous opinion and substitute the following opinion in its place.

A child was sheltered two months after birth and placed with foster parents after his release from the hospital. During the pendency of a petition to terminate parental rights, the mother executed a surrender and consent to adopt with Adoption by Shepherd Care (“ASC”), an adoption agency. The father also surrendered his rights to the Department of Children and Families. ASC intervened and filed a motion to transfer custody of the child to the prospective adoptive parents chosen by the mother. The trial court subsequently granted the motion to transfer custody of the child to the prospective adoptive parents.

The foster parents and the guardian ad litem program (“GAL”) appeal the order transferring custody of the child. We dismiss the foster parents’ appeal because they do not have standing to appeal. As to the GAL’s appeal, we affirm because competent substantial evidence supports the trial court’s decision.

At the time of the hearing on the motion to transfer custody, the child was eighteen months old. It was undisputed that the child had bonded to the foster parents. The Department did not object to the request for placement with the prospective adoptive parents. The GAL was the only opposing party.

During the hearing, ASC’s expert testified that the first three years of a child’s life are the most critical for bonding and attachment. An eighteen-month-old can have a secure attachment with a new caregiver. The fact that the child has bonded at his current placement was a sign that he could likewise attach to the prospective adoptive parents. The risk of moving a child from a current caregiver of fifteen months to a new caregiver would be minimal and should not be detrimental for a child despite having a healthy attachment to a current caregiver.

ASC completed a positive home study on the prospective adoptive parents. An adoption specialist at ASC testified about the appropriateness of a placement with the prospective adoptive parents and recommended that they adopt the child. The prospective adoptive parents testified they want to adopt the child and testified about what they had done to prepare for the adoption. A dependency case manager and supervisor from the Children’s Home Society recommended a gradual transition plan in the event of removal.

The foster parents testified regarding their relationship with the child. They further testified that they were willing to adopt the child. However, they did not have an approved home study, and significantly, nothing in the record indicated they had taken any steps towards adoption. The guardian ad litem testified regarding how well the child and foster parents were doing together. On cross-examination, she admitted that the prospective adoptive parents “seemed like a lovely couple” and that she had no reason to believe they would not be appropriate adoptive parents. The GAL also presented expert testimony that it would be detrimental to remove the child from a secure attachment.

In a detailed order, the trial court granted the motion to transfer custody to the prospective adoptive parents and ordered a transition plan. From this order, the foster parents and the GAL appeal.

The Department has moved to dismiss the appeal as to the foster parents for lack of standing. We agree that the foster parents do not have standing to appeal the order. Florida Rule of Appellate Procedure 9.146(b) provides that an appeal may be filed by “[a]ny child, any parent, guardian ad litem, or any other party to the proceeding affected by an order of the lower tribunal, or the appropriate state agency as provided by law.” The foster parents were not parties to the proceedings below, but rather were simply participants. See § 39.01(51), (52), Fla. Stat. (2017). See also C.M. v. Dep’t of Children & Families, 981 So.2d 1272, 1272 (Fla. 1st DCA 2008); D.C. v. J.M., 133 So.3d 1080, 1081-82 (Fla. 3d DCA 2014).

The foster parents cite to R.L. v. W.G., 147 So.3d 1054 (Fla. 5th DCA 2014), claiming that their “stronger than normal bond” with the child gives them standing to contest the removal of the child from their care. Nothing in R.L. supports the foster parents’ contention. R.L. held that the foster parents did not have a right to intervene in trial proceedings to set aside a placement change. Athough the foster parents in the instant case might potentially have had a right to intervene in the proceedings below, that is not the issue raised before us, Instead, the issue is whether the foster parents have standing to appeal an order transferring custody of the child. Because the foster parents lack standing, we dismiss their appeal.

The GAL also challenges the transfer of custody. An order transferring custody is reviewed for abuse of discretion. M.A. v. Dep’t of Children & Families, 906 So.2d 1226, 1227 (Fla. 1st DCA 2005). A trial court does not abuse its discretion where competent substantial evidence supports the trial court’s finding that the change in custody is in the best interests of the child. Id.

The GAL claims that it is in the child’s best interest to remain in the custody of the foster parents and to be adopted by them. However, it is not the court’s role to determine which placement would be better for the child. Section, 63.082(6)(a), Florida Statutes (2017), provides that “[i]f a parent executes a consent for adoption, ... the adoption consent is valid, binding, and enforceable by the court.” .If the court determines that the,, prospective adoptive parents are qualified to adopt the child and that the adoption is in the best interests of the child, "the court shall promptly order the transfer of custody of the minor child to the prospective adoptive parents,” § 63.082(6)(d), Fla. Stat. Thus, “the ‘best interest’ analysis requires a determination that the birth parent’s choice of prospective' adoptive parents is appropriate and protects the well-being of the child; not that it is the best choice as evaluated by the court or the Department in light of other alternatives.” See In re S.N.W., 912 So.2d 368, 373 n.4 (Fla. 2d DCA 2005).

In determining the best interests of the child, the legislature enumerated in section 63.082(6)(e), the following non-exclusive factors to be considered by the trial court:

1. The permanency offered;
2. The established bonded relationship between the child and the current caregiver in any potential adoptive home in which the child has been residing;
3. The stability df the potential adoptive home in which the child has been residing as well as the desirability of maintaining continuity of placement;
4; The importance of maintaining sibling relationships, if possible;
5. The reasonable preferences and wishes of the child, if the court deems the child to 'be of sufficient maturity, understanding, and experience to express a preference;
6. Whether a petition for termination of parental rights has been filed pursuant to s. 39.806(l)(f), (g), or (h); ,
7. What is best for the child; and
8-. - The right of the parent to determine an appropriate placement for the child. - ;

The trial court made detailed findings as to each of the eight statutory factors relating to the best interests of the child, and its findings, were supported by competent substantial evidence in the record. Factors relied on by the court included a determination that placement with the prospective adoptive parents offered the child permanency, and it was undisputed that the prospective adoptive parents were an appropriate placement for the child. Even the guardian ad litem, the party opposing the modification, agreed that she had no reason to believe the prospective adoptive parents would not be an appropriate placement.

As the trial court recognized, the prospective adoptive parents “are offering [the child] permanency and an adoptive home that was not speculative- or uncertain. If the Court were to deny the modification of placement, it would leave [the child] in licensed foster care, where he may or may not be adopted one day .... ”

Although the child was bonded to the foster parents, the trial court correctly found that this bond did not override all of the other statutory factors, ASC’s bonding expert testified that the risk of moving the child was minimal and that the child would be able to bond with a new caregiver. The expert further stated that the first three years of a child’s life are the most critical for bonding and attachment and that the child had eighteen months left of that critical bonding time.’

Finally, the trial court also properly recognized and gave effect to the mother’s right to choose the adoptive family for her child, as recognized, as one of the factors in the statute.

In sum, we dismiss the appeal as to the foster parents for lack of standing, and we affirm the transfer of custody.

Dismissed in part; affirmed in part.

Warner and Conner, JJ., concur.

      , The trial court proceeded with the hearing on the motion to transfer custody without ruling on the foster parents’ motion to intervene, Although the foster parents objected below on due process grounds, they do not raise any due process issue on appeal. Therefore, any argument is waived and abandoned. See Polyglycoat Corp. v. Hirsch Distrib., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983).


author: PALMER, J.

text:
    HOMES BY DELTONA, INC., Appellant/Cross-Appellee, v. OUTDOOR SITE SOLUTIONS, LLC, Appellee/Cross/Appellant.
    Case No. 5D16-2025
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 6, 2017
    William Douglas Stanford, Jr., Peter A. Robertson, Thomas J. Tollefsen and Jan C, Trendowski, of The Robertson Firm, St. Augustine, for Appellant/Cross-Appellee.
    Austin T. Hamilton and T. Geoffrey Heekin, of Heekin Litigation Group, Jacksonville, for Appellee/Cross-Appellant.
   PALMER, J.

Homes by Deltona, Inc. (Deltona) appeals, and Outdoor Site Solutions (OSS) cross-appeals, the final judgment entered by the trial court in favor of OSS..We reverse.

Deltona owned undeveloped property located in St. Johns County. Deltona contracted with OSS to provide labor, services, and materials which included ¡fill dirt. OSS thereafter entered into a verbal contract with Hicks’ Trucking and Fill, LLC (Hicks), pursuant to which Hicks agreed to furnish OSS with fill dirt, labor, and services for the Deltona project.

When a dispute arose between Deltona and OSS, OSS ceased work on the project and filed claims of liens for its uncompensated work and materials. Hicks also filed a claim of lien for its sub-contract work on the project.

OSS filed a complaint against Deltona asserting various grounds for relief. As later amended, the complaint included a count for breach of contract. Deltona filed a counterclaim against OSS, asserting that OSS breached the terms of the parties’ contract by ceasing to provide additional fill loads for the project. Hicks also filed a complaint against Deltona. It later amended the complaint to assert a claim of unjust enrichment. These two lawsuits were consolidated for purposes of trial.

Upon review of the evidence presented, the jury found that Deltona breached its contract with OSS and that Hicks was entitled to recover on its unjust enrichment claim. The jury awarded OSS $87,180.00 on its breach of contract claim for the unpaid amounts due on the materials delivered. The award represented the 1,338 loads of fill dirt which were supplied on the project at $110.00 per load, minus Deltona’s prior payment of $60,000.00. On the unjust enrichment claim, the jury awarded Hicks $75,982.70 in damages for the fill dirt already delivered on the project.

Deltona filed a motion for remittitur arguing, among other things, that the trial court was required to impose a set-off to OSS’s recovery so as to avoid Deltona being required to pay for the fill dirt twice: once on OSS’s breach of contract claim and once on Hicks’ unjust enrichment claim. Although OSS agreed that double recovery would be improper, it argued that set-off was not the proper means to prevent the double recovery.

The trial court thereafter entered an order denying remittitur but granting set-off on the basis of judicial estoppel, ruling: “[OSS] cannot take now the position that set off is inappropriate after arguing to the jury that the Court would set off any duplicate damages to prohibit double recovery.” Thereafter, the trial court entered two separate final judgments: one in favor of Hicks for $88,058.39 (which included costs and interest), and one in favor of OSS for $23,662.77 (which set off the amount of Hicks’ verdict and then calculated costs and interest). This appeal and cross-appeal followed.

We conclude that there is no merit in the issues raised by Deltona in this appeal and affirm without further discussion. However, we agree with OSS’s argument that the trial court erred in relying on the doctrine of judicial estoppel to reduce the amount of the jury’s verdict on OSS’s breach of contract claim from $87,180.00 to $11,197.30.

OSS did not argue to the jury that set-off would be applied to prohibit a double recovery. Rather, OSS simply argued that the trial court would be responsible for preventing a double recovery. Specifically, OSS argued: “What happens if we give the verdict to both of these guys? The judge is going to figure that out later.” After the verdicts were rendered, OSS sought to structure the final judgment so that it would be awarded full compensation for its damages, but with a provision that prohibited double recovery. Because OSS did not take inconsistent positions on the issue of set-off, the trial court erred in reducing the jury’s award based on judicial estoppel.

Deltona would reap a windfall if it were permitted to avoid the payment of the contractual interest due on the jury’s verdict. In this regard, the OSS-Deltona contract provided for the recovery of interest if payment was untimely:

Proposal good for 60 days.
If payment is 30 days or later OSS, LLC reserves the right to charge an 18% finance charge monthly if we so choose. It is also understood any collection fees, including but not limited to lien filing, postage, legal fees, etc., will be charged to property owner if so action is taken.

As such, interest was awardable on the jury’s verdict, and the trial court’s reduction of the verdict resulted in OSS not receiving the full amount of the contractual interest to which it was entitled. Thus, the trial court erred in reducing the award to OSS on the breach of contract claim. So long as OSS does not collect on its judgment for monies actually paid by Deltona to Hicks for the fill dirt, no double recovery will occur. See Fischer-McGann, Inc. v. Gene B. Glick Co., 715 So.2d 994, 996 (Fla. 4th DCA 1998).

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN, C. J., and EVANDER, J., concur.

      . Deltona concedes that the trial court did not accurately summarize what counsel for OSS said to the jury, but argues that the differences are insignificant.


text:
    Robert D. DOUGLAS, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee and Custodian for HSBC, Bank USA, NA Ace 2006-NCI and Holly Douglas, Appellees.
    Case No. 5D16-3847
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 6, 2017
    Robert D. Douglas, Palm Coast, pro se.
    Michael D. Starks, of Greenberg Trau-rig, P.A., Orlando, and Patrick G. Broder-ick and Jason H. Okleshen, of Greenberg Traurig, P.A., West Palm Beach, for Ap-pellee Deutsche Bank.
    Holly Douglas, Ormond Beach, pro se.
   PER CURIAM.

Over the objection of Robert Douglas, a defendant below, the trial court ordered the appeal bond in dispute to be returned to co-defendant, Holly Douglas. Although the bond was posted in Holly’s name, Robert argued, inter alia, that he had provided the funds for the bond and that Holly had subsequently assigned her interest in the bond to him. Robert’s request for an evidentiary hearing was denied. We treat the notice of appeal as a motion seeking review of an order determining entitlement to an appeal bond, see Florida Rule of Appellate Procedure 9.310(f), and reverse.

Although the rule provides no guidance to trial courts for resolving competing claims to appeal bonds, we conclude that the trial court should have afforded an evidentiary hearing to Robert, a party to the underlying action, rather than require him to file an independent action. See, e.g., Brown v. State, 613 So.2d 569, 570 (Fla. 2d DCA 1993) (finding that court had inherent power to assist true owner in recovery of property held in custodia legis-, separate suit for replevin or conversion was not necessary). On remand, the trial court is to hold an evidentiary hearing to determine if Robert was entitled to receive the funds posted for the appeal bond in question.

REVERSED and REMANDED.

TORPY, EVANDER and EDWARDS, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC., a Delaware Limited Liability Company, and Sylvia W. Johnson, Petitioners, v. CITY OF TALLAHASSEE, a Municipal Corporation, and Tax Collector, Leon County, Respondents.
    CASE NO. 1D17-668
    District Court of Appeal of Florida, First District.
    Opinion filed October 20, 2017

      Ethan J. Loeb, Jay J. Bartlett, and Jon P, Tasso of Smolker, Bartlett, Loeb, Hinds & Sheppard, P.A., Tampa; Gino A. Luziet-ti and Michael J. Tomkiewicz of GrayRo-binson, P.A., Tallahassee; Jeffrey H. Sav-lov and James W. Anderson of Savlov ■& Anderson, P.A., for Petitioners.
    Lewis E. Shelley of Henry, Buchanan, Mick & English, P.A., Tallahassee, for Respondents.
   PER CURIAM.

Days prior to jury selection, the defendant, Sylvia W. Johnson, filed an emergency motion to continue the trial on just compensation of an eminent domain cause of action. The defendant stated that she had suffered a heart attack, had been recently released from the hospital, and would be seeing a cardiac surgeon in a few days, The defendant attached a-letter from a doctor essentially establishing the same facts.. During the hearing on the emergency motion, the plaintiff, Florida Gas Transmission Company, LLC, .joined the motion to continue and argued that it would also be prejudiced if the court did not grant the continuance because it had not had the opportunity to depose the defendant. The trial court ruled that it was denying the motion to continue based on the defendant’s entitlement to priority on the docket due to her age, the defendant’s need for a stress-free life, and the age of the case. After receiving the trial court’s -written order, both parties petitioned this Court for a writ of certiorari and requested this Court quash the trial court’s denial of their joint motion to continue.

During the pendency of the petition for writ of certiorari, the parties requested to dismiss their joint petition. Florida Rule of Appellate Procedure 9.350 states that a party may seek to dismiss the cause of action when the parties have settled, their differences or may seek to voluntarily dismiss the cause of action prior to a decision on the merits. However, there is nothing in the rule that requires this Court to dismiss the cause of action. Pino v. Bank of N.Y., 76 So.3d 927, 929 (Fla. 2011). We decline to grant the dismissal and grant the petition for writ of certiorari as each party has demonstrated entitlement.

A petitioner must show that the trial court’s order departs from the essential requirements of the law and that she has been irreparably harmed in order to obtain a writ of certiorari. Fla. Fish & Wildlife Conservation Comm’n v. Jeffrey, 178 So.3d 460, 464 (Fla. 1st DCA 2015). Irreparable harm is the element that must be considered first as it is the element that invokes the appellate court’s jurisdiction. Id. Irreparable harm has beeh defined as a material injury that continues for the remainder of the case and cannot be corrected on appeal. Id. Without a prima facie showing of irreparable harm, the appellate court cannot grant a writ of certiorari. Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454 (Fla. 2012). Once the party has made a prima facie showing of irreparable harm, the appellate court has to determine if the trial court departed from the essential requirements of the law. Jeffrey, 178 So.3d at 465.

I. Irreparable harm

A. Defendant’s claim

The defendant has claimed that her lack of presence to assist counsel during the trial will cause her -irreparable harm. The record indicates that the parties entered into an agreed upon order of taking of property for eminent domain in June of 2010, but continue to dispute the valuation of the defendant’s property and whether or not a portion of the defendant’s property has been rendered inaccessible for mining purposes, which is the defendant’s current use of the land, based on the taking. This is the third eminent domain action, which began in 1967, between the parties involving the same parcel of land. The record reflects that the defendant hired her current courisel just months prior to the scheduled trial. The defendant also argues that she was the only person available to assist counsel at the trial and is knowledgeable about how a corner of her property has been rendered inaccessible for mining purposes. Thus, the defendant’s position is that this corner of property has been severed and essentially taken by the plaintiff. The defendant’s inability to assist trial counsel in attacking the plaintiffs experts’ testimony is a material injury that cannot be corrected on appeal because there is no way to measure how the outcome of the trial would be impacted by her lack of assistance. Thus, the defendant has made a prima facie showing that this Court has jurisdiction, and now we must determine if the trial court departed from the essential elements of law.

B. Plaintiffs Claim

The plaintiff has also argued that it will be irreparably harmed by the denial of the continuance because it has not been able to depose the defendant. For a denial of discovery to amount to irreparable harm, the denial must “effectively eviscerate a party’s claim, defense, or counterclaim.” CQB, 2010, LLC v. Bank of N.Y. Mellon, 177 So.3d 644, 645 (Fla. 1st DCA 2015) (quoting Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009)). When the party’s claim, defense, or counterclaim is eviscerated, there is no adequate remedy on appeal because there is no way to determine how the requested discovery would have impacted the outcome of the trial. CQB, 177 So.3d at 645.

In the petition for writ of certiorari, the plaintiff contends that it needs to depose the defendant in order to defend itself against the defendant’s, claim that it has severed a corner of her land based upon the agreed upon taking. The record shows that two of the defendant’s experts have determined that a corner of her property has been severed by the agreed upon taking. There is. also some indication in the record that the property has not truly been severed as an access bridge could possibly be built to provide the defendant with access to this comer of her property, but it is the defendant who has refused to allow an access bridge to be built. The plaintiff has shown that it cannot properly impeach the defendant at trial or question her experts about the severance without her depositional testimony as she is the one who has provided her experts with information to support their opinions about the severance. Thus, the plaintiff has made a prima facie showing of irreparable harm. See also Beekie v. Morgan, 751 So.2d 694, 698-99 (Fla. 5th DCA 2000) (finding irreparable harm in not allowing the plaintiff to depose the defendant before trial as there is no way to know how the outcome of the trial would have been affected). The Court now determines if the trial court departed from the essential elements of law.

II. Departure of the Essential Elements of the Law

A. Defendant’s Claim

The denial of a motion to continue is reviewed under the abuse of discretion standard. SSJ Mercy Health Sys., Inc. v. Posey, 756 So.2d 177, 179 (Fla. 4th DCA 2000). “[W]hen undisputed facts reveal that the physical condition of either counsel or client prevents fair, and adequate presentation of a case, failure to grant a continuance is reversible error.” Id. (quoting Ziegler v. Klein, 590 So.2d 1066, 1067 (Fla. 4th DCA 1991)). The following facts should be considered by the appellate court to determine whether or not a trial court abused its discretion in denying a motion to continue: (1) whether the denial of a continuance creates an injustice for the movant; (2) whether the cause for the request was unforeseeable by the movant and not for delay; and (3) whether the opposing party would suffer prejudice or inconvenience as a result of the continuance. Posey, 756 So.2d at 179. A defendant’s unavailability to assist counsel at trial is an injustice as the record shows that the defendant was the only one who could assist counsel with her case and help provide counsel with information about the severance of her property. There is nothing in the record to indicate that the defendant’s illness was foreseeable or being used to delay the trial. The record shows that the plaintiff joined the continuance and claimed it would also be harmed if the continuance was not granted. Accordingly, the trial court departed from the essential elements of the law.

B. Plaintiffs Claim

The Florida Supreme Court has said that financial documents and information that are relevant to the disputed issues are discoverable and courts will compel the production of this information if it is shown to be relevant to the pending action. Bd. of Tr. of Int’l Improvement Tr. Fund, 99 So.3d at 458. The severance and taking of. a corner of the defendant’s land is disputed by the plaintiff and makes up a portion of the damages the defendant' claims she is entitled to receive. Because severance is a disputed, issue, the information about the access to this land is relevant. The plaintiff is entitled to depose the defendant. Fla. R. Civ. P. 1,310. Thus, the plaintiff has shown that the trial court has departed from the essential element’s of law by denying it the ability to depose the defendant prior to trial.

We find that, both the plaintiff and defendant have shown that each have been irreparably harmed by denial of the motion to continue and the trial court departed from the essential elements of law. Therefore, we. grant the writ of certiorari and quash the trial court’s order denying the joint motion to continue the trial.

GRANTED.

.ROBERTS and JAY, JJ., CONCUR; MAKAR, J., CONCURS with opinion.

MAKAR, J.,

concurring.

It’s hard to blame the trial judge for refusing to grant another continuance of trial in this eminent domain case, which appears to have dawdled along aimlessly for years. The only issue' since the lawsuit’s inception in 2010 has been the amount of damages. The parties stipulated immediately that a portion of rural property belonging to Mr. J, Marvin Johnson and Mrs. Silvia W. Johnson'(operated primarily as a sand farm) was condemned for utility easements used for decades by Florida Gas Transmission Company, LLC (“Florida Gas”). Long ago, Florida Gas deposited $120,000 into the court’s registry, but the Johnsons anticipated far more in damages, thus necessitating a jury trial and a battle of expert witnesses to assess the value of the encroachment.

Now, seven years later, the damages issue remains unresolved. Foot-dragging, the late-in-the-game substitution of new lawyers necessitating a continuance, and other indicia of litigation languor led the current trial judge—at least the fourth to be assigned to this case—to attempt to move it to fínal resolution. After all, eminent domain jury trials get preference over other civil cases, section 73.071(1), Florida Statutes, and the remaining plaintiff-property owner, Mrs. Johnson, who is in her late seventies and recently lost her husband, might be denied justice if no damage award issues within her lifetime. But on the eve of the scheduled trial, Mrs. Johnson had severe heart problems, resulting in hér request for another continuance. Florida Gas joined in, claiming they hadn’t yet • deposed Mrs. Johnson, who they claimed was a critical witness. Why she had not been deposed earlier (or her husband, when he was alive) is unclear; notably, neither the company nor Mrs. Johnson had listed her as a potential trial witness.

After an emergency hearing, the trial judge denied the jointly-sought continuance and issued an order stating in full:

THIS CAUSE came before the Court on February 17, 2017 for hearing on the emergency motion for continuance, based oh urgent health issues [heart attack and recommendation for surgery] of the property owner, Ms. Johnson, presently 77 years old! [There had been prior motions for continuance, previously ruled on, not based on health issues]-,
This is an eminent domain case involving the petitioner’s taking of the Johnson property for the public purpose of placing a third gas transmission pipeline on the Johnson property. [The first taking for a pipeline occurred in 1967, the second in 1994]. This taking occurred in June 2010; the amended order of taking was entered at that time.,
Florida law gives priority for eminent domain cases over all other civil cases. The only issue to be tried is the amount of compensatory damages that represent a full and fair value of the property taken [permanent and temporary easements and, if appropriate, several [sic] damages and damages for minerals taken], with the valuation date being determined as of the date of the order of taking [June 2010]. It is not known why the parties resisted going to trial sooner; there was construction time needed for the pipeline installation, and Mr. Johnson passed away in 2014. In 2015 Judge Hankinson set the case for trial; that date was changed to February 2017, in 2016. When the undersigned was rotated into the civil division July 1, 2016, the undersigned tried without success to have the trial moved earlier, ■ with the parties insisting the trial should not be-moved earlier.
Reportedly, Ms. Johnson’s condition requires that she avoid stress; she is scheduled for surgery in the near future. However, her testimony appears not to have been anticipated for trial, as she is not listed by name on the witness lists, and there is no summary of any anticipated testimony she was expected to give. [That information was required to be included in the parties’ pretrial wit-mess disclosure]. Further, as the only issues for the jury are those relating to the value of the property taken, it is -the expert testimony .regarding those matters that is essential for the jury’s determination.
For more than six years, nearly seven years, the petitioner has been-using the property it took from Ms. Johnson in June 2610. The amount -paid into the registry of the court is a mere pittance compared- to the amount estimated by petitioner’s counsel.
Under the circumstances existing here, with no evidence as to when, or if, Ms. Johnson will ever be able to be healthy enough to participate in the trial, where her -testimony was not viewed as essential [as indicated by her not being identified as a witness], the Court .finds there is not sufficient .good cause further continue .this already very stale case. '

(Brackets, other than [sic], in original). Based on these findings, the trial judge concluded- that “further postponement of the trial would not be-consistent with Florida law, nor would it assist in reducing the stress[] of this litigation on Mrs. Johnson, and for the reasons' set forth above and on the record at the February 17, 2017 hearing, the emergency motion for continuance is denied.”

All this said, the record shows that Mrs. Johnson was stricken with a life-threatening heart condition that necessitated her absence at the trial.' She thereby established the basis for the continuance as explained in the Court’s opinion, which I join as to Mrs. Johnson’s request for relief. See Silverman v. Millner, 514 So.2d 77 (Fla. 3d DCA 1987) (explaining that sudden and unforeseeable stroke of employer on the day before trial necessitated continuance); see generally Philip J. Padovano, Continuance, 5 Fla. Prac., Civil Practice § 15:9 (2016-2017 ed.) (“[Tjhere are situations in which a motion for continuance must be granted in order to avoid an injustice. For example, the trial court may be required to continue a trial if a party, a material witness or an attorney is unable to attend as a result of an illness or physical condition.”).

Less convincing is Florida Gas’s claim for relief, which is based on the inability to depose Mrs. Johnson at this juncture. The company claims it has been trying to depose her for “quite a while,” but the record presented doesn’t reflect diligence until just a few months before trial; plus, as the trial judge noted, if Mrs. Johnson was such a critical witness, why hadn’t the company listed her as the pretrial order required? So the claim that Florida Gas’s defense at trial would be eviscerated with Mrs. Johnson’s deposition testimony is somewhat overstated. Again, the trial is only about the calculation of economic damages, which will be decided via conflicting appraisals and dueling experts. The company is correct that Mrs. Johnson’s testimony about past operations of the sand farm might be of value, particularly since her husband died a few years ago, but the importance of that information at this late stage of the proceedings—after appraisals and experts have been tendered—seems minimal. The central injustice that justified a continuance was Mrs. Johnson’s severe illness, not the effect of her illness on the company’s eleventh-hour discovery efforts.

       The plaintiff argued that it had sought to depose the defendant in the past, but the defen-' dant had successfully obtained a continuance from the trial court and had failed to appear on other occasions.

      , ' In 2016, Mrs. Johnson came to believe that her attorneys were in "cahoots with the gas company” and sought leave of court to get new ones.

      . According to the trial judge, beyond the stress of involvement in utility litigation dating back to the late 1960s, part of Mrs. Johnson’s recent, stress came from prior "episodes" of alleged misconduct by pipeline workers who “left broken beer bottles scattered around her property” and "urinated in front of her.” Added to that was Mrs, -Johnson’s belief "that terrorists may be trying to figure out how to blow up one or more of the pipelines on her property.” And-in one interrogatory Mrs. Johnson said that "[her] husband was beaten and left for dead on the site. No arrests have ever been made, but it seems likely that the perpetrators were business competitors.”


author: PER CURIAM.' B.L. THOMAS, C.J.,

text:
    CITY OF TAVARES and Gallagher Bassett Service, Inc., Appellants, v. Billy HARPER, Appellee.
    CASE NO. 1D17-0027
    District Court of Appeal of Florida, First District.
    Opinion filed October 24, 2017
    Rehearing Denied December 18, 2017

      Mark Hicks of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and James B. Birmingham of Fulmer, Leroy & Albee, PLLC, Orlando, for Appellants.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Kristine Calla-gy of Bichler, Oliver, Longo & Fox, PLLC, Maitland, for Appellee.
   PER CURIAM.'

In this workers’ compensation appeal, the Employer/Servicihg Agent (E/ SA) seek review of the Judge of Compensation Claims’ (JCC’s) order finding that Claimant, a law enforcement officer, established the compensability of his hypertension' under the statutory presumption in the Heart-Lung Statute, section 112.18(1), Florida Statutes (2015). According to the E/SA, Claimant’s pre-employment physical examination report indicated evidence of hypertension which, in accordance with the plain language of the statute, precludes Claimant’s reliance on' the presumption. But, bécause we conclude that competent substantial evidence (CSE) supports the JCC’s finding that the single reported elevated blood pressure reading at the pre-employment physical examination did not constitute evidence of the condition of hypertension, we affirm.

In 2016, Claimant experienced two incidences of severely elevated blood pressure and was temporarily taken off of work. He was subsequently diagnosed with hypertension which eventually came under good control with medication. Claimant then, sought a determination of compensa-bility of his hypertensive condition' as a workplace injury in accordance'with the section 112.18(1) statutory presumption. This statute provides, in pertinent part, that any health condition or impairment of a law enforcement officer caused by hypertension and resulting in disability “shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be,shown by competent evidence.” § 112.18(l)(a), Fla. Stat. (2015). But to qualify for the presumption, Claimant was' required to show, among other things, that he successfully passed a pre-employment physicál examination which “failed to reveal any evidence of such condition.” Id.; see also Volusia Cty. Fire Servs. v. Taaffe, 27 So.3d 81, 82 (Fla. 1st DCA 2009) (holding that pre-employment physical examination finding claimant fit for duty but noting a diagnosis of hypertension precluded presumption of compensability of hypertension under section 112.18(1)); Miami-Dade Cty. v. Davis, 26 So.3d 13, 17-18 (Fla. 1st DCA 2009) (holding that section 112.18(1) presumption was precluded where relevant pre-employment physical revealed claimant suffered from heart disease).

Here, Claimant’s 2007 pre-employment physical examination report listed a single blood pressure reading of 140/60, which, according to the unrefuted medical opinions in this record, is considered high. The condition of hypertension, however, was not noted in the report; in fact, the findings were described as normal. Furthermore, medical records documenting Claimant’s medical history from 2011 through the end of 2015 did not reveal any reference to hypertension or to any other elevated blood pressure readings. The medical opinions indicated that an isolated elevated blood pressure reading could be caused by hypertension,.,but also by a number of other- conditions unrelated to hypertension, including what is commonly referred to as “white, coat” syndrome. For that reason, they opined, two or three abnormal readings within a period of time are necessary to confirm the condition of hypertension.

Ultimately, the JCC found that the pre-employment physical examination did not show evidence of the condition of hypertension in this case and concluded that Claimant was entitled to rely on the statutory presumption. In reaching this conclusion, the JCC relied on the opinion of Dr. Perloff, Claimant’s independent médical examiner (IME), who testified that there is a distinction between a single isolated measurement in, the hypertensive range and the actual disease process of hypertension. In his opinion, one high blood pressure reading could be evidence of hypertension; however, he also testified that he found it “hard .to believe” that the 2007 reading “really represented] hypertension” given, that it is “extremely rare that patients become-hypertensive and then.are not” and, as noted here, Claimant did not have any documented elevated readings for approximately nine years after his pre-employment physical. Significantly, both Dr, Perloff and Dr. Nocero, the E/SA’s IME, agreed that Claimant’s responses to stress suggested “white coat” syndrome as a possible explanation for the single elevated reading during the- pre-employment physical examination,

On appeal, the ’E/SA argue that the JCC erred as a matter of law because the statute refers to any evidence of a condition and does not require evidence sufficient to support an actual diagnosis. To the extent this issue turns on the JCC’s interpretation and application of the statute) our review is de novo; but, to the extent it turns on the resolution of facts, review is for CSE. See Benniefield v. City of Lake land, 109 So.3d 1288, 1290 (Fla. 1st DCA 2013).

We begin our analysis with the language of the statute. It is well-established that “[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). Furthermore, courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” McLaughlin v. State, 721 So.2d 1170, 1172 (Fla. 1998) (quoting Holly, 450 So.2d at 219); see also Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355, 357 (Fla. 1st DCA 2008) (citing State v. Rife, 789 So.2d 288, 292 (Fla. 2001)).

Here, the wording of the statute provides that the law enforcement officer “must have successfully passed a physical examination” which “failed to reveal any evidence of any such condition.” The E/SA argue that the plain meaning of “any evidence” would include the one reading because “evidence” is broadly defined as simply “[sjomething (including testimony, documents, and tangible' objects) that tends to prove or disprove the existence of ah alleged fact; anything presented -to the senses and offered to prove the existence or nonexistence of a fact.” Black's Law Dictionary 673 (10th ed. 2014). Presumably, under the interpretation advocated by the E/SA reasoning, a false positive would also qualify as “any evidence.” This interpretation would eviscerate the statutory presumption and it ignores the second part of .the relevant portion of the statute which requires that the evidence relate to the listed condition: in this case, Claimant’s hypertension first identified as such in 2016. This additional language means that the factually specific nature of the presumption requires evidence specific to the facts of the claim and in the context of the unique medical history of the claim-ani>—not simply “any evidence” as it may apply to the population at large.

Our reading pf the plain language here is consistent with this court’s opinion in Talpesh v. Village of Royal Palm Beach, 994 So.2d 353, 354-55 (Fla. 1st DCA 2008). In Talpesh, the JCC ruled that the presumption under section 112.18(1) did not apply to that claimant’s coronary artery disease because the pre-employment examination revealed high blood pressure. This court found that the JCC erred because the examination did not reveal the specific listed condition of heart disease. The Talpesh court , then determined that the claimant there was entitled to the presumption that his coronary heart disdase was caused by his occupation.

■ Here, the findings of fact similarly establish that the. pre-employment examination failed to reveal the specific listed condition: i.e., hypertension. Furthermore, CSE supports the JCC’s. conclusion that Claimant’s elevated blood pressure reading at the pre-employment physical examination was not evidence of hypertension. Indeed, based on the medical opinions in this case, it appears that,this single isolated elevated reading in Claimant’s medical history was more likely than not an indication of “white coat” syndrome at; the pre-em-ployment physical.

Accordingly, because the JCC did not err when he determined that Claimant is entitled to the statutory presumption in section 112.18(1), we affirm the order on appeal.

AFFIRMED.

WETHERELL and M.K. THOMAS, JJ., CONCUR; B.L. THOMAS, C.J., DISSENTS WITH OPINION.

B.L. THOMAS, C.J.,

DISSENTING.

I respectfully dissent. The issue before us is whether a high blood pressure reading of 140/60 constitutes “any evidence” of hypertension that would exclude the statutory presumption that certain conditions áre accidental and occur within the line of duty. This is a pure question of law, reviewed de novo. Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass’n, Inc., 164 So.3d 663, 666 (Fla. 2015) (“As the' issue presented involves a question of statutory construction, this Court’s review is de novo.”). Both the majority opinion and Ap-pellee acknowledge that Appellee’s 2007 blood pressure reading of 140/60 was a high reading. In addition, Appellant’s medical expert testified that such a reading is evidence of Stage I hypertension.

The statute requires no more evidence than this to exclude the presumption. Section 112.18(l)(a), Florida Statutes, states:

Any condition or impairment of health of any ... law enforcement officer ... caused by ... hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have' been suffered in the line of duty unless the contrary be shown by competent.evidence. However, any such .:. law enforcement officer' must have successfully passed a physical examination upon entering into any such sfervice as a ... law enforcement officer, which examination failed to reveal any evidence of any such condition.

(Emphasis added.) The Center for Disease Control and Prevention describes hypertension as high blood pressure: “About High Blood Pressure (Hypertension): High blood pressure has no warning signs or symptoms, and many people do not know they -have it. The only way to know if you have it is to measure your blood pressure. Then you can take steps to control it if it is too high.” See https://search. cdc.gov/search?query=hypertension&utf 8=Sni&affiliate=cdc-main ■ (emphasis added), (last visited Sept. 27, 2017). By definition, then, evidence of a reading of high blood pressure is, at the very least, an indication of hypertension under section 112.18(l)(a), Florida Statutes.

The majority opinion misinterprets the statute by conflating the concepts of weight and admissibility. See Miller v. State, 597 So.2d 767 (Fla. 1991) (holding that duration between alleged impaired driving and performance of blood alcohol test went to credibility and weight of evidence, not admissibility, provided test is conducted within a reasonable time after being stopped by law enforcement); Thomas v. Hogan, 308 F.2d 355, 361 (4th Cir. 1962) (en banc) (holding factors of reliability of medical record supporting determination of intoxication based on blood composition went to weight of evidence, not admissibility, absent showing of “complete” unreliability). There is no argument that Appellee’s 2007 blood pressure measurement was somehow unreliable, improperly read or invalidly administered; instead, the weight of the reading was disputed by Appellee. Furthermore, both the majority opinion and the Judge of. Compensation Claims superimpose the requirement of a diagnosis in the statutory exclusion.

The acknowledgment of Appellee’s high blood pressure reading is equivalent to the principle of “admissibility” of evidence before a fact finder. No one could credibly assert that Appellee’s pre-employment report of elevated blood pressure was not admissible, but a party could legitimately argue that a single blood pressure reading is not persuasive. That would be quite different, however, than a judge ruling that the-factfinder would not be allowed to even learn of the reading. And whether Appellee’s reading was a product of “white-coat” syndrome or any other non-hypertensive source, even if true, is irrelevant under the statute, because: 1) the record contained Appellee’s pre-employment physical which showed a reading of high blood pressure; 2) such a reading is an indication—i.e., “evidence”—of the existence of hypertension, although doctors can disagree as to how much weight to give this evidence; and 3) the statute does not require any specific quantum of evidence to disallow the statutory presumption.

Had the legislature intended to require the existence of “substantial evidence” of hypertension before disallowing the evi-dentiary presumption at issue, it would have done so. The legislature, in fact, did just that in another statute, when it created a statutory presumption of driver impairment by declaring that “a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.” § 316.1934(2)(c), Fla. Stat. The legislature defined the contrary presumption by providing that a reading of less than 0.05 creates a presumption that the driver was “not under the influence of alcoholic beverages 316.1934(2)(a), Fla. Stat.

Unlike that statute, which quantified a weight of the evidence to invoke an eviden-tiary presumption, here, the legislature chose not to designate any quantity of evidence that would disallow the presumption that a specified condition was accidental and occurred in the line of duty. Thus, the doctors’ view that “two or three abnormal readings within a period of time are necessary to confirm the condition of hypertension is not the criteria provided by the legislature in section 112.18(l)(a), Florida Statutes. Instead, the legislature balanced the interests of the relevant class of employees to whom it chose to grant the advantageous statutory presumption against the tax burdens on the public, by requiring that the employee’s pre-employment physical not contain any evidence of the condition.

Finally, the majority opinion’s reliance on Talpesh v. Village of Royal Palm Beach, 994 So.2d 353, 354-55 (Fla. 1st DCA 2008), is misplaced, because in that case, this court correctly held that high blood pressure is not, by its nature, medical evidence of coronary artery disease or heart disease. While high blood pressure may or may not be evidence of heart disease, it is evidence of hypertension. Therefore, this court should reverse with direction that the statutory presumption does not apply here as a matter of law.

      , A normal reading would be 120/80.

      . , “White coat” syndrome describes a transient increase in blood pressure caused by the stress of undergoing a blood pressure reading. It is considered a normal phenomenon that requires no medical treatment, -


author: NORTHCUTT, Judge.

text:
    Nancy Lee BUCKINGHAM, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    Case No. 2D15-5424
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017.

      Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant.
    W. Bard Brockman and Christian J. Bromley of Bryan Cave LLP, Atlanta, Georgia, for Appellee.
   NORTHCUTT, Judge.

Following a bench trial, Bank.of America, N.A., obtained a judgment foreclosing a mortgage on Nancy Lee Buckingham’s home, We reverse because the bank failed to prove that it had standing to foreclose.

The bank filed a complaint alleging that it was the holder of the note and mortgage in question and that Buckingham was in default because she had stopped making payments. The complaint was verified by Ocwen Loan Servicing, as servicer for .the bank, In her answer, Buckingham raised the. affirmative defense that the . bank lacked standing to sue on the note,

The only witness at trial was Shelia King, a; senior loan analyst with Ocwen. King testified that Ocwen was the subser-vicer for the loan, but Buckingham objected that there were no documents in evidence to support the assertion that Ocwen was the subservicer for this specific loan. King’s testimony was premised on a limited power of attorney that was admitted into evidence; it did hot specifically-reference the Buckingham loan. The power of attorney authorized Ocwen to act for the bank in regard to certain mortgage loans identified in a flow subservicing agreement. This included the power to file suit on the bank’s behalf. However, the bank did not introduce the agreement into evidence, and as pointed out by Buckingham both’below and on appeal, there was no evidence that the Buckingham .loan was included in-the agreement.

Beyond that, the evidence did'not prove the bank’s standing. A copy of Buckingham’s note, which'was executed in favor of Mortgagease, Inc,, was attached to the complaint. There was an allonge to - the note that transferred it from Mortgagease to ABN AMRO Mortgage Group. In turn, the note contained a subsequent endorsement from ABN in favor of LaSalle Bank, N.A. Finally, there was. a blank endorsement executed .by Bank of America as “[successor by merger to LaSalle Bank, N.A.” ..

“It is well settled that a plaintiff seeking to foreclose on, a mortgage loan must establish that it had standing to foreclose at the time it filed the complaint.” Rosa v. Deutsche Bank Nat’l Tr. Co., 191 So.3d 987, 988 (Fla. 2d DCA 2016). “A plaintiff alleging standing as a holder ‘must prove not only physical possession of the original note but also, if the plaintiff is not the named payee, possession of the original note endorsed in favor of the plaintiff or in blank (which makes it bearer paper),’ ” Id. (quoting Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 353 (Fla. 1st DCA 2014)).

In the present case, the note did not contain an endorsement in favor of the plaintiff bank. Although the note was ultimately endorsed in blank by the bank as a successor by merger to LaSalle Bank, there was no evidence establishing the merger, let alone that the bank acquired all of LaSalle Bank’s assets. See Fiorito v. JP Morgan Chase Bank, N.A., 174 So.3d 519, 521 (Fla. 4th DCA 2015) (“While Chase also could have established standing through its merger with WAMU, the [loan] officer’s testimony fell short of establishing that Chase acquired all of WAMU’s assets, including Appellant’s note and mortgage, by virtue of the merger.”); see also DiGiovanni v. Deutsche Bank Nat’l Tr. Co., 226 So.3d 984, 989, 2017 WL 1277737 (Fla. 2d DCA Apr. 5, 2017) (“Without any evidence to show that Bankers Trust had been renamed Deustche''Bank, Deustche'Bank failed to show that it had standing to foreclose.”). On the present record, the endorsement in blank by the bank appears to be an anomalous endorsement and a nonentity.

The bank did not present competent, substantial evidence that it was the holder of the note at the time the complaint was filed. The bank also did not establish that Ocwen was acting as its agent with the power to file suit on its behalf in regard to the Buckingham loan where the agreement was not entered into evidence and the last valid endorsement to the note was in favor of LaSalle Bank. This is not a situation such as in Phan v. Deutsche Bank National Trust Co., ex rel. First Franklin Mortgage Loan Trust 2006-FF11, 198 So.3d 744, 747-49 (Fla. 2d DCA 2016), which held that Deustche Bank had. constructive possession of the note because its agent was holding the note endorsed in blank on its behalf.

We reverse the final judgment and remand for entry of a final order of involuntary dismissal of the action. Elsman v. HSBC Bank USA, 182 So.3d 770, 772 (Fla. 5th DCA 2015) (reversing the foreclosure judgment and remanding for an entry of an order of involuntary dismissal where HSBC' Bank failed, to prove standing at trial), .

Reversed and remanded with instructions.

LaROSE, CJ„ and SILBERMAN, J., Concur.

      . "The term 'anomalous indorsement' means an indorsement made by a person who is not the holder of the instrument. An anomalous indorsement does not affect thé manner in which the instrument may be negotiated,” § 673.2051(4), Fla. Stat. (2014).