text:
    Terry Paul POWELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1810
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017

      James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Terry Paul Powell appeals from a sentence imposed after he was convicted following a jury trial of three offenses: assault (Count I), resisting an officer with violence (Count II), and battery on a law enforcement officer (Count III). He raises two issues on appeal: first, that the trial court improperly imposed drug offender probation on Count III, as there was insufficient evidence that Powell qualified as a “chronic substance abuser” under section 948.20, Florida Statutes (2015); and second, that his sentence on Count II contains a scrivener’s error. We affirm his judgment and sentence, write to explain our reasoning, and remand for correction of the scrivener’s error on Count II. At the sentencing hearing, the trial court sentenced Powell to five years’ incarceration on Count II as a prison releasee reoffen-der, and to three years’ incarceration on Count III, consecutive to the term of imprisonment imposed on Count II, to be followed by two years’ drug offender probation. In conflict with the oral pronouncement, the written sentence on Count II reflects five years’ imprisonment to be followed by two years of drug offender probation.

This Court reviews the trial court’s order imposing drug offender probation for an abuse of discretion. Sutton v. State, 128 So.3d 957, 959 (Fla. 2d DCA 2013) (“[I]t was within the trial judge’s discretion to sentence Sutton to drug offender probation if it appeared to the court that Sutton was a ‘chronic substance abuser.’ ”). While this record presents a close call, we conclude that the trial court’s imposition of drag offender probation as to Count III was supported by competent, substantial evidence in the' record. The trial court had before it, among other evidence, the testimony of two law enforcement officers establishing their familiarity with Powell due to numerous encounters with him over several years. Although the officers’ testimony included only a limited factual basis, we cannot say that their testimony was not competent evidence. Further, the arrest affidavit indicated that Powell was under the influence of a controlled substance on the night of the incident. Given the substantial deference due the trial court here, we find no reversible error on this point.

We agree that the written sentence contains a scrivener’s error which should be corrected upon remand as to Count II. “A written sentence that conflicts with the oral pronouncement of sentence imposed in open court is an illegal sentence.” Beard v. State, 27 So.3d 186, 187 (Fla. 6th DCA 2010) (citing Williams v. State, 957 So.2d 600, 603 (Fla. 2007)). “When a discrepancy exists, the oral pronouncement controls over the written.” Id. In this case, the record reveals that the trial court impósed a sentence on Count II of five years’ incarceration, making no mention of drag offender probation on this count. The written sentence should be corrected to conform to the oral pronouncement.

AFFIRMED; REMANDED for correction of scrivener’s 'error.

' COHEN, C.J., BERGER and EISNAUGLE, JJ., concur.

      . The State conceded error on the first issue, but for a different reason than argued by Powell. "A confession of error, however, is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions by the state.” Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002) (citations omitted). Specifically, the State conceded error because it believed that battery on a law enforcement officer does not qualify for drug offender probation as it does not "fall under the statutorily enumerated categories of offenses for which drug offender probation could be imposed.” We disagree. See State v. Hearns, 961 So.2d 211, 219 (Fla. 2007) ("[Battery on a law enforcement officer] is not a forcible felony under section 776.08.”); § 948.20(1), Fla. Stat. (2015) ("[T]he term ‘nonviolent felony’ means a third degree felony violation under chapter 810 or any other felony offense that is not a forcible felony as defined in s. 776.08.”).


source: Caselaw Access Project

author: COHEN, C.J.

license: Public Domain

text:
    WELLS FARGO BANK, N.A., Appellant, v. Cindy SHELTON and Howard Shelton, Appellees.
    Case No. 5D15-3283
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017

      Sara F. Holladay-Tobias, Emily Y. Rott-mann, and C. H. Houston, 111, of McGuire-Woods LLP, Jacksonville, for Appellant.
    Richard S. Shuster and Purvi S. Patel, of Shuster & Saben, LLC, Satellite Beach, for Appellees.
   COHEN, C.J.

This appeal stems from the trial court’s reluctance to grant relief from technical admissions due to counsel’s lack of diligence in pursuing relief. The attorney for Wells Fargo Bank, N.A. (“Wells Fargo”) failed to timely respond to the Sheltons’ request for admissions. The allegations were then deemed admitted, resulting in the entry ofisummary judgment in favor of the Sheltons based on the technical admissions. However, because the pleadings and other record evidence contradicted those admissions and the Sheltons did not demonstrate prejudice, we reverse and-remand for further proceedings.

Wells Fargo filed a foreclosure complaint against the Sheltons in 2013. A copy of the note executed by the Sheltons was attached to the complaint, which indicated that Wells Fargo was the original lender on the note. A copy of the mortgage was also attached to the complaint. The parties engaged in discovery, during which the Sheltons sent Wells Fargo a request for admissions. The request sought to have Wells Fargo admit, among other things, that (1) it was not the original lender; (2) it was not the current holder of the note; (3) it was not the current owner of the note; (4) the original lender did not transfer possession to Wells Fargo; (5) Wells Fargo did not possess the note or mortgage; and (6) the copy of the note attached to the complaint was not a true and correct copy of the original.

Wells Fargo did not timely respond to the request for admissions. Approximately .a year and a half after the response was due, Wells Fargo moved for leave to file a belated response, asserting excusable neglect based on a calendaring error and lack of prejudice to the Sheltons. Wells Fargo had complied with the Sheltons’ other discovery requests, albeit after being given several extensions of time. Despite having obtained technical admissions under Florida Rule of Civil Procedure 1.370, the SheRons did not move for summary judgment but instead continued to engage in discovery. The trial court denied Wells Fargo’s motion to file a belated response to the request for admissions. After the motion was denied, the Sheltons moved for summary judgment.

In support of their motion, the Sheltons asserted that the technical admissions conclusively established that Wells Fargo lacked standing to foreclose. Wells Fargo responded that because the verified complaint included a copy of the blank-indorsed note, the note demonstrated that Wells Fargo was the original lender, the complaint alleged that it was a holder, and Wells Fargo had the note in its possession, summary judgment would be improper because the technical admissions would not negate this other record evidence. Despite characterizing the Sheltons’ defense tactic as a “parlor trick,” the trial court granted final summary judgment in their favor.

Florida Rule of Civil Procedure 1.370 governs requests for admissions. The rule provides that if a party fails to respond to a request for admissions within thirty days of service of the request, the matter is deemed admitted. Fla. R. Civ. P. 1.370(a). “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Fla. R. Civ. P. 1.370(b). The court may allow a party to withdraw an admission “when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.” Id.

Rule 1.370 has been liberally interpreted, and there is a “strong preference that genuinely disputed claims be decided upon their merits rather than technical rules of default.” Wells Fargo Bank Nat’l Ass’n v. Voorhees, 194 So.3d 448, 451 (Fla. 2d DCA 2016) (citing PennyMac Corp. v. Labeau, 180 So.3d 1216, 1219 (Fla. 3d DCA 2015)); see also Melody Tours, Inc. v. Granville Mkt. Letter, Inc., 413 So.2d 450, 451 (Fla. 5th DCA 1982). In addition, “[wjhile it is normally within the trial court’s discretion to use a technically deemed admission to support a summary judgment, it is error if the record contains evidence to the contrary of the admission.” In re Forfeiture of 1982 Ford Mustang, Vehicle ID No. ABP16F6CF190433, 725 So.2d 382, 385 (Fla. 2d DCA 1998); see also HSBC Bank USA v. Parodi, 193 So.3d 65, 66 (Fla. 3d DCA 2016) (“[I]t is reversible error to involuntarily dismiss an action or grant summary judgment based solely on the failure to timely respond to a request for admissions where the pleadings and/or the record evidence contradicts the technical admissions and no prejudice has been demonstrated.”).

We find that the trial court erred in granting summary judgment in this case. Two factors weigh heavily in our decision. First, Wells Fargo filed the motion for relief from the technical admissions before the Sheltons moved for summary judgment or relied on the technical admissions in any other demonstrable way. Second, the pleadings and other record evidence in this case contradicted the admissions. Wells Fargo had filed a verified complaint alleging that it was the holder of the note; it also attached copies of the note and mortgage to the complaint. In addition, both in other discovery responses and at the summary judgment hearing, Wells Fargo indicated that it had the note in its possession and intended to file the original with the trial court.

Moreover, the Sheltons did not demonstrate that they would have been prejudiced by granting Wells Fargo relief from the technical admissions. Merely alleging reliance on the court’s previous denials of relief from technical admissions or having to proceed' to trial on the merits is insufficient to warrant denial of relief under the rule. See, e.g., Voorhees, 194 So.3d at 451; cf. Melody Tours, Inc., 413 So.2d at 451. While Wells Fargo took over a year to recognize that it missed the discovery deadline, the Sheltons continued to pursue discovery during that time, suggesting a lack of reliance on those technical admissions.

In sum, the trial court erred in entering summary judgment based on the technical admissions because there was record evidence contradicting the admissions. In addition, the Sheltons failed to make a sufficient showing of how granting relief from the admissions would have caused prejudice. Accordingly, we reverse the order granting summary judgment and remand for further proceedings.

REVERSED and REMANDED.

PALMER and SAWAYA, JJ., concur.

      . Wells Fargo’s current appellate counsel is not the same attorney who represented it at trial.

      . These factors render the Sheltons’ reliance on Asset Management Consultants of Virginia Inc. v. City of Tamarac, 913 So.2d 1179 (Fla. 4th DCA 2005), inapposite. In that case, the appellant did not move to file belated answers until after the hearing on the summary judgment motion, and no record evidence contradicted the admissions. 913 So.2d at 1181.

      . Additionally, in Wells Fargo s verified motion for leave to file the belated response, it claimed that the failure to respond was due to a calendaring error. Cf. Al Hendrickson Toyota, Inc. v. Yampolsky, 695 So.2d 948 (Fla. 4th DCA 1997) (finding trial court erred in denying motion for relief from technical admissions based on calendaring error because "the established case law deems that calendaring errors are regarded as excusable neglect”); see also Melody Tours, Inc., 413 So.2d at 451 (finding mere inadvertence justified allowing relief from technical admissions under liberal application of rule 1.370).


author: WETHERELL, J.

text:
    FLORIDA PULP AND PAPER ASSOCIATION ENVIRONMENTAL AFFAIRS, INC., Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Florida Environmental Regulation Commission, Appellees.
    CASE NO. 1D16-4610
    District Court of Appeal of Florida, First District.
    Opinion filed July 11, 2017
    Rehearing Denied August 10, 2017
    Gregory M. Munson and Terry Cole of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellant.
    Robert A. Williams, Chief Deputy General Counsel, and Francine M. Ffolkes, Deputy General Counsel, Florida Department of Environmental Protection, Tallahassee, for Appellees.
   WETHERELL, J.

In this administrative appeal, the Florida Pulp and Paper Association Environmental Affairs, Inc. (Association)' seeks review of the order dismissing its rule challenge petition as untimely. We reverse for the reasons that follow.

Factual and Procedural Background

On June 30, 2016, the Department of Environmental Protection published in the Florida Administrative Register (FAR) notice of its intent to amend rules 62-302.400 and 62-302.530, Florida Administrative Code. On July 26, a public hearing on the proposed rule amendments was held by the Environmental Regulation Commission. The. Commission approved the amendments to rule 62-302.530 as proposed and approved.the proposed amendments to rule 62-302.400 with several changes.

On August 4, 2016, the Department published in the FAR a 'Notice of Change for rule 62-302.400 and a Notice of Correction for rule 62-302.530. Among other things, the Notice of Correction stated: “The [Department has revised the SERC[] to reflect that a lower cost regulatory alternative (LCRA) .,. was received on July 21, 2016, but was immediately withdrawn. A copy of the revised SERC ... is available for public viewing at [the Department’s website].” (emphasis added).

On August 23, 2016, the Association filed with the Division of Administrative Hearings (DOAH) a petition alleging that the proposed- amendments to rule 62-302.530 were invalid exercises of delegated legislative authority under section 120.52(8)(a), (d), and (e), Florida Statutes. The petition alleged that it was timely under section 120.56(2)(a) because it was filed “within 20 days of the Notice of Change,, and within 20 days after a revised [SERC].”

The Department filed a motion to dismiss the Association’s petition. The motion argued that no changes were made to the proposed amendments to rulé 62-302.530 after publication of the rulemaking notice on June 30, and that.the Association “cannot use a-Notice of Change to Rule 62-302.400, F.A.C., which it has not challenged, to bootstrap -its way into challenging proposed amendments to Rule 62-302,530, F.A.O.” The motion also argued that the revised SERC did not provide a point of entry to challenge the proposed amendments to rule 62-302.530 because “[t]he revised SERC merely acknowledges a withdrawn LCRA and is the functional equivalent of not receiving any good faith written proposals for a [LCRA] to the proposed rule.”

After a hearing at which the parties were afforded an opportunity to present oral argument on their respective positions, the administrative law judge (ALJ) entered an order granting the Department’s motion and dismissing the Association’s petition. The ALJ concluded that the notices published in the FAR on August 4 did not provide-a new point of entry for the Association to challenge the proposed amendments to rule 62-302.530.be-cause that rule was not changed in any way by the notices, The ALJ 'further concluded that the revised SERC was “misidentified by [the Department] as such” and that it did not create a new point of entry for the Association to challenge the proposed amendments to rule 62-302.530 because the Association was not substantially affected by the revision to the SERC.

The Association appealed the dismissal order to this Court.

Analysis

We review the dismissal order under the de novo standard of review because the determination of whether the Association’s petition was timely filed is a question of law. See Madison Highlands, LLC v. Fla. Hous. Fin. Corp., 220 So.3d 467, 42 Fla. L. Weekly D482, 2017 WL 729535 (Fla. 5th DCA Feb. 24, 2017) (citing Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001)); Brown v. Comm’n on Ethics, 969 So.2d 553, 556 (Fla. 1st DCA 2007); § 120.68(7)(d), Fla. Stat.

A petition challenging the invalidity of a proposed rule-must be filed at DOAH within:

[1] 21 days after the date of publication of the notice required by s. 120.54(3)(a);
[2] 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(e)2.;
[3] 20 days after the [SERC] or revised [SERC], if applicable, has been prepared and made available as provided in s. 120.541(l)(d); or
[4] 20 days after the date of publication of the notice required by s. 120.54(3)(d).

§ 120.56(2)(a), Fla. Stat. (emphasis added). These time periods are jurisdictional. See Dep’t of Health & Rehab. Servs. v. Alice P., 367 So.2d 1045, 1053 (Fla. 1st DCA 1979). Accordingly, an untimely petition must be dismissed. Id.

Here, it is undisputed that the Association’s rule challenge petition was not timely filed after the first or second points, of entry in section 120.56(2)(a). It is also undisputed that the petition was filed within 20 days after the notices published in the FAR on August 4, 2016. Accordingly, the dispute in this case boils down to whether those notices triggered the third or fourth points of entry.

The Association contends that the third point of entry was triggered by the revised SERC referred to in the Notice of Correction. We agree. Accordingly, we need not address whether the fourth point of entry was also triggered by the Notice of Correction and/or the Notice of Change.

The third point of entry is triggered when a revised SERC is “prepared and made available as provided in s. 120.541(l)(d).” Section 120.541(l)(d) provides that “an agency that is required to revise a [SERC] .shall provide notice on the agency’s website that it is available to the public.” One circumstance in which the agency is required to revise a SERC is when a LCRA is submitted. § 120.541(l)(a), Fla. Stat. (“Upon the submission of the [LCRA], the agency ... shall revise its prior [SERC] ....”) (emphasis added).

Here, although a LORA was timely submitted, the Department.argues that it was not required to prepare a revised SERC because the LCRAwas “immediately withdrawn.” The. Association responds that upon receipt of the LCRA, the Department had an obligation to revise the SERC to address the LCRA irrespective of the fact that the LCRA was subsequently withdrawn. We need not resolve this dispute because, whether it was required to or not, the Department- did prepare a revised SERC and did make it available to the public on its website in accordance with section 120.541(l)(d). By doing so, the Department triggered the third point of entry in section 120.56(2)(a).

The Department argues that the revised SERC did not trigger a new point of entry because, as the ALJ stated in the dismissal order, “the ‘revision’ contemplated by section 120.541 is a revision to the estimated costs, not a change in the narrative accompanying the estimated costs that has no effect on the costs.” We reject this argument because it is inconsistent with section 120.541(l)(a), which specifically contemplates that the revision to a SERC could simply be a “statement of the [agency’s] reasons for rejecting the [LCRA] in favor of the proposed rule.”

We also reject the Department’s argument—which the ALJ adopted in the dismissal order—that the Association could not take advantage of this point of entry because it is not substantially affected by the revised SERC. This argument erroneously conflates the issues of standing and timeliness.

A person’s standing to challenge a proposed rule depends on whether the person is substantially affected by the proposed rule. See § 120.56(l)(a) (“Any person substantially affected by ... a proposed rule may seek an administrative determination of the invalidity of the rule .... ”), (l)(b)2. (“The petition challenging the validity of a proposed rule ... must state ... [f]acts sufficient to show that the petitioner ... would be substantially affected by the proposed rule”), Fla. Stat.; but cf. § 120.541(l)(g) (stating that a rule cannot be invalidated based on the agency’s wrongful rejection of a LCRA unless it is raised by a person whose “substantial interests ... are materially affected by the rejection”) (emphasis added). Had the Legislature intended that there be a different standing requirement when a rule challenge petition is filed after the point of entry created by the preparation of a revised SERC, it would have said so. Likewise, had the Legislature intended to limit the grounds upon which a person could challenge a proposed rule based on the point of entry after which the petition was filed, it would have said so. Cfi § 120.56(2)(a), Fla. Stat. (“A person who is not substantially affected by the proposed rule as initially noticed, but who is substantially affected by the rule as a result of a change, may challenge any provision of the resulting proposed rule.”).

Finally, we reject the Department’s argument—which the ALJ adopted in the dismissal order—that it is inequitable to allow the Association to take advantage of the point of entry that was “serendipitously” created by the preparation of the revised SERC because there was no reason that the Association could not have filed a rule challenge petition after one of the first two points of entry. This argument ignores the fact that the points of entry listed in section 120.56(2)(a) are separated by the disjunctive conjunction “or,” which indicates that they are mutually exclusive alternatives. See Sparkman v. McClure, 498 So.2d 892, 895 (Fla. 1986) (“[T]he word ‘or’ is generally construed in the disjunctive when used in a statute or rule. The use of this particular disjunctive word in a statute or rule normally indicates that alternatives were intended.”) (citations omitted). Accordingly, a person who is substantially affected by a proposed rule who fails to take advantage of the first available point of entry is not necessarily precluded from taking advantage of one of the later points of entry.

Conclusion

For the reasons stated above, we reverse the order dismissing the Association’s rule challenge petition as untimely and remand for consideration of the petition on its merits.

REVERSED and REMANDED for further proceedings.

OSTERHAUS and M.K. THOMAS, JJ., CONCUR.

      . The Commission is part of the Department and exercises the Department's "standard-setting authority” under chapter 403 and parts of chapter 373, Florida Statutes. See §§ 20.255(6), 403,804(1), Fla Stat.

      . Statement of estimated regulatory costs. See § 120.541, Fla. Stat.

      . Separate petitions challenging the proposed amendments to rule 62-302.530 were filed by the Seminole Tribe of Florida (on August 8), the City of Miami (on August 19), and Martin County (on August 25), All of the petitions were consolidated into a single proceeding at DOAH.

      .The order also dismissed the petitions filed by the Seminole Tribe, the City of Miami, and Martin County,

      . The City of Miami and the Seminole Tribe appealed the dismissal order to the Third District Court of Appeal. Those appeals, Case Nos. 3D16-2129 and 3D16-2440, are still pending as of the date of this opinion.

      . That said, we agree with the ALJ’s comment in the dismissal order that a prudent person will file a rule challenge petition at the first available opportunity.


author: PER CURIAM.

text:
    Detarsha Castro BRADLEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-2626
    District Court of Appeal of Florida, First District.
    Opinion filed July 11, 2017
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public, Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

We previously affirmed Appellant’s consecutive mandatory minimum sentences for aggravated assault and possession of a firearm by a convicted felon based on our en banc decision in Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013), which held that mandatory mínimums under the 10-20-Life statute must be imposed consecutively regardless of whether the defendant possessed or discharged a firearm. However, the Florida Supreme Court quashed ' our decision in this case and remanded for reconsideration in light of its decisions in Walton v. State, 208 So.3d 60 (Fla. 2016), and Williams v. State, 186 So.3d 989 (Fla. 2016). See Bradley v. State, 42 Fla. L. Weekly S681, 2017 WL 2302335 (Fla. May 26, 2017).

In Williams, the Court held that “consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged.” 186 So.3d at 993; accord Walton, 208 So.3d at 64. But, the Court further held that “[i]f ... multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.” Williams, 186 So.3d at 993.

Williams did not directly address whether or not consecutive mandatory minimum sentences were permissible where, as here, the defendant only shot at one victim but was convicted of multiple firearm offenses arising out of the same criminal episode. However, in Burns v. State, this court read Williams to permit the trial court to impose consecutive sentences in these circumstances. 212 So.3d 546, 546 (Fla. 1st DCA 2017) (“As Burns discharged a firearm striking a single victim and as both offenses arose out of a single criminal episode, consecutive sentences were permissible but not required.”); see also Wilson v. State, 219 So.3d 931, 2017 WL 1653435 (Fla. 1st DCA May 2, 2017).

Accordingly, based on Williams, we vacate Appellant’s sentence because the trial court believed based on our prior precedent that it was required to impose consecutive. mandatory minimum sentences, and based on Burns, we remand for the trial court to exercise its discretion in deciding whether to impose concurrent or consecutive mandatory minimum sentences. Also, as we did in Burns, we certify conflict with Torres-Rios v. State, 205 So.3d 883 (Fla. 5th DCA 2016) (holding that concurrent sentences must be imposed under section 775.087(2) where a single shot is fired at only one person during a single criminal episode).

Sentence VACATED and REMANDED with directions.

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


author: LUCK, J.

text:
    Barry E. MUKAMAL, Appellant, v. MARCUM LLP and Jeffrey Weiner, Appellees.
    No. 3D17-104
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2017

      Dorta Law and Gonzalo R. Dorta, for appellant.
    Pathman Lewis, LLP and John A. Moore; Davidoff Hutcher &' Citron, LLP and Larry Hutcher (New York, NY), for appellees.
    Before LAGOA, SCALES and LUCK, JJ.
   LUCK, J.

Barry E. Mukamal, a former partner at accounting firm Marcum LLP,' sued his old firm and its managing partner for fraud. Mukamal appeals the trial court’s nonfinal order staying the case and compelling him to arbitrate his fraud claim as required by his partnership agreement (and the amendments to the partnership agreement). We have jurisdiction, Fla. R. App. P. 9.130(a)(3)(C)(iv), and affirm.

Factual Background and Procedural History

Mukamal, from 1997 to 2009, was a partner at the now-defunct accounting firm of Rachlin LLP. Marcum LLP, in 2009, merged with the Rachlin accounting firm, and as part of the merger Mukamal became a partner at Marcum LLP. Marcum LLP had an existing partnership agreement with its partners from 2002. The Marcum LLP 2002 partnership agreement had this arbitration provision:

Arbitration. Any and all controversies, disputes or claims arising out of or relating to any provision of this Agreement or the breach thereof shall, at the election, of any party to the controversy, dispute or claim, be settled by final and binding arbitration in Nassau County-by three arbitrators in accordance with the rules then in effect of the American Arbitration Association ....

When Mukamal joined the partnership in 2009, he signed three agreements with the Marcum LLP accounting firm. First, he agreed to be subject to, and bound by, all of the terms and conditions of the 2002 partnership agreement.

Second, Mukamal signed a special rider to the 2002 partnership agreement granting him certain rights in connection with the merger of the two accounting firms. The líder amended for Mukamal provisions in the 2002 partnership agreement regarding the distribution of shares in the merged company, how the merged company would be governed, his compensation, benefits, and what would happen if he was terminated or withdrew from the merged company. The rider also contained the following arbitration provision:

Governing Law; Arbitration. This Rider and the interpretation of its terms will be governed by the laws of the State of New York without application of conflicts of law principles. The parties to this Rider will make their best efforts to resolve amicably, by mutual consultation, any dispute arising out of or in connection with this Rider. If such dispute cannot be resolved by mutual agreement, then such 'dispute will be finally resolved by arbitration pursuant to the provisions of Section 19.5 of the [2002 partnership agreement].

On the same day, Mukamal signed a third agreement, called an addendum to the special rider. The purpose of the addendum was to “amend certain provisions” of the rider, including those provisions allowing Mukamal to retire and further refining the decision-making structure of the merged company. The addendum, like the 2002 partnership agreement and the rider, had a governing law provision (New York law would govern), but, unlike the two other agreements, the addendum did not have an arbitration clause.

In 2012, according to his amended complaint for fraud, Mukamal learned the following about the merged company and its principals. Prior to the merger, Mukamal’s old firm, Rachlin LLP, had made undisclosed payments to its marketing director, in-house counsel, and the head of the Florida office, adding up to more than five million dollars. After these undisclosed pre-merger payments had been discovered, the Marcum LLP principals paid out an unapproved severance package to Rach-lin LLP’s former managing partner, and made the former Rachlin LLP partners pay for it.

After the merger, Mukamal learned that Marcum LLP’s principals changed the way bonuses were calculated and distributed to hurt the partners in Miami (and help those in New York). Marcum LLP also did not disclose a secret bonus structure that would have benefited Mukamal had he known about it.

In July 2012, Mukamal presented his pre- and post-merger findings to the Mar-cpm LLP executive committee. The committee, however, took no action. As a result, in April 2013, Mukamal gave his one year notice that he was resigning from the merged company.

In 2016, Mukamal filed two lawsuits. In one, this, case, Mukamal sued Marcum LLP and its managing partner for fraud. In the other, Mukamal filed a statement of claim for arbitration against Marcum LLP alleging that the merged company breached the 2002 partnership agreement, rider, and addendum.

The Marcum LLP defendants moved to compel arbitration on the fraud claim, and stay the case, because Mukamal’s fraud arose out of the partnership agreement, and, thus fell under the broad arbitration provisions contained in the 2002 partnership agreement and rider. Mukamal responded that: (1) his tort claim did not arise out of his various agreements with Marcum LLP; and- (2) the absence of an arbitration clause in the- addendum, which represented the parties’ last writing on the matter, clearly indicated an intent to forgo arbitration.

The trial court, in a well-reasoned order, granted the Marcum LLP defendants’ motion to stay and compel arbitration. The trial court concluded, first, that “the claim [was] arbitrable because every allegation in [Mukamal’s] [ajmended [c]omplaint advance[d] a claim arising out of and related to the parties professional relationship.” Mukamal does not appeal this conclusion, and we do not address it in this appeal. As to Mukamal’s argument that the absence of an arbitration clause in the addendum indicated the parties’ intent to forego arbitration, the trial court concluded that the addendum “did not eliminate the parties’ arbitration agreement by ‘implication,’ ... The [a]ddendum—executed on the same day—does not evince an intent to abandon the arbitration clause, something the parties could easily have accomplished if they desired (or intended) to do so.” Mukamal has appealed the trial court’s conclusion on this issue.

Discussion

Mukamal contends on appeal that the parties’ decision to omit the arbitration clause from the addendum created an ambiguity as to the parties’ intent to arbitrate disputes arising out of the three agreements. Under New York law, Mukamal continues, the trial court erred in failing to hold an evidentiary hearing on the parties’ ambiguous intent to arbitrate, where parole evidence would have been admitted.

We disagree, for two reasons. First, under New York law, “[a]greements executed at substantially the same time and related to the same subject matter are regarded as contemporaneous writings and must be read together as one.” PETRA CRE 2007-1 CDO, Ltd. v. Morgans Grp. LLC, 84 A.D.3d 614, 923 N.Y.S.2d 487, 488 (2011) (citation omitted). We, therefore, read the rider and addendum, which were executed on the same day and pertain to the terms of Mukamal’s employment with the merged accounting firm, together as one agreement.

The addendum, in its acknowledgements section, describes the rider as setting forth Mukamal’s agreement with respect to certain rights to be granted by Marcum LLP to Mukamal in connection with the proposed merger. In the next recital, the addendum says that “[t]he parties have agreed to enter into this letter agreement in order to amend certain provisions” of the rider.

The “certain provisions” amended by the addendum were identified in section three, entitled “Amendments to Rider.” The amendments were made to provisions in the rider related to employment benefits, retirement, and corporate governance. The rider’s arbitration clause was not one of the provisions being amended; it was left untouched by the addendum, Reading the rider and addendum together, then, the arbitration clause applies to disputes arising out of both contemporaneous agreements.- - ■

The rider’s language supports this reading. The rider provides that it “and any other contemporaneous documents entered into by the parties contain the sole and entire agreement among the parties with respect to their subject matter,” In addition, the rider states that “[n]o amendment or modification” of its terms “will be valid unless in writing and duly executed by the ... parties.” These provisions show that the rider and addendum, executed on the same day, are the sole agreement between Mukamal and Marcum LLP, and the only way to alter the agreement is in a writing signed by the parties. Neither the addendum, nor any other agreement in the record, changed or modified the arbitration provision in the rider.

Even if the agreements., are not read together, under New York law, a subsequent agreement cannot abandon or cancel an existing contractual-right to arbitrate “absent a clear manifestation of contrary intent.” Primex Int’l Corp. v, Wal-Mart Stores, Inc., 89 N.Y.2d 594, 657 N.Y.S.2d 385, 679 N.E.2d 624, 628 (1997). Silence, in other words, is not an expression of intent to undo the right to arbitrate.

In Primex, for example, a company agreed to be Wal-Mart’s exclusive buying agent for South American manufactured consumer goods in three successive three-year contracts. Primex, 657 N.Y.S.2d 385, 679 N.E.2d at 625, The first contract had a New York choice of'law provision, a broad arbitration clause, the right to. opt out after six months, and the following merger clause:

This Agreement may not be amended, changed, modified, or altered except by a writing signed by both parties. All prior discussions, agreements, understandings or arrangements, whether oral or written* are merged herein and this document represents the entire understanding between the parties. •

Id'The second contract had the same provisions. Id. The third contract had the same provisions- except that Wal-Mart’s general counsel removed the arbitration clause. Id, After a.kickback-scandal involving the buying agent, Wal-Mart terminated the contract and sued the buying agent for fraud and breach of contract. Id., 657 N.Y.S.2d 385, 679 N.E.2d at 625-26. The buying agent moved to compel Wal-Mart to arbitrate the-claims arising out of the two earlier contracts. Id., 657 N.Y.S.2d 385, 679 N.E.2d at 626.

The trial court denied the motion because “the presence of a general merger clause expressed the parties’ intent to operate solely under the [third] [a]greement and represented-the entire understanding of the parties.” Id, The intermediate appellate court agreed that “it was ‘not imperative that the latest agreement expressly revoke the prior agreements’ arbitration provisions to-effectively cancel those provisions.’ ” Id. (quoting appellate division’s order).

The New York Court of-Appeals .reversed, explaining that:

[A] broad arbitration clause in an agreement survives and.remains enforceable for the resolution 'of disputes arising out of that agreement subsequent to the termination thereof and the discharge of obligations thereunder, irrespective of whether the termination and discharge resulted from the natural expiration of the term of the agreement, a unilateral termination under a notice of cancellation provision, or the breach of the agreement by one of the parties.

Id. (citations omitted). “[Tjhe merger clause,” the court concluded, “was insufficient to establish any intent of the parties to revoke retroactively their contractual obligations to submit disputes arising thereunder to arbitration.” Id., 657 N.Y.S.2d 385, 679 N.E.2d at 627. “[A]bsent a more specific indication of intent to abandon contractual rights to an arbitration forum,” the court continued, “a general release terminating the substantive rights of the parties to the contract will not nullify their obligation to submit to an arbitrator all of the disputes relating to that contract and its termination.” Id., 657 N.Y.S.2d 385, 679 N.E.2d at 628. There must be, the New York court said, “a clear manifestation of contrary intent.” Id.

Likewise, in Gadelkareem v. Blackbook Capital LLC, 46 Misc.3d 149(A), 2015 WL 921356 (N.Y. App. Term 2015), after a securities firm hired a broker, the broker “executed a Uniform Application for Securities Industry Registration or Transfer Form (Form U—4), which contained a broad arbitration clause requiring plaintiff ‘to arbitrate any dispute, claim or controversy that may arise’ between the parties.” Id. The New York intermediate appellate court rejected the broker’s contention that “the New York choice of law and consent to jurisdiction provisions of the parties’ [subsequent] employment contract” negated the earlier arbitration agreement because “significantly, [it] contained ‘no express denial of the agreement to arbitrate.’” Id. (citations omitted).

In sum, standard merger and choice of law provisions in a subsequent contract are not the kinds of “clear manifestation” or “express denial” needed to abandon an earlier agreement to arbitrate. On the other hand, the examples the New York courts have given of sufficient “clear manifestation” or “express denial” language are telling. In Primex, the New York Court of Appeals quoted this language as a “specific indication of intent to abandon contractual rights to an arbitration forum”: “the prior agreement is hereby canceled and declared of no further force or effect, and said agreement shall be interpreted as though it had never been executed.” Primex, 657 N.Y.S.2d 385, 679 N.E.2d at 628 (quotation omitted). And in Applied Energetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522 (2d Cir. 2011), although the parties agreed to arbitrate any disputes as part of a preliminary letter agreement, the subsequent placement agreement provided that “[a]ny dispute arising out of this Agreement shall be adjudicated in the Supreme Court, New York County or in the federal district court for the Southern District of New York.” Id. at 523. The language in the placement agreement, the federal appellate court said, stood in “direct conflict” with the letter agreement, and “specifically preclude” arbitration. Id. at 525.

Here, Mukamal contends that the choice of law provision in the addendum (“This letter agreement and the interpretation of its terms shall be governed by the laws of the State of New York without application of conflicts of law principles.”) expressed an intent not to arbitrate, but this is not enough of a clear manifestation or express denial to abandon the clear right to arbitrate in the earlier 2002 partnership agreement and rider. In other words, general language in a subsequent agreement, like what is in the addendum, is insufficient to negate the parties’ earlier agreement to arbitrate. The addendum’s choice of law provision does not dictate the forum the parties must litigate in; it only provides that New York law shall be applied in the parties’ chosen forum. The forum for litigation is not addressed in the addendum and, therefore, nothing in it directly conflicts or specifically precludes the contractual right to arbitrate in the two earlier agreements. As in Primex and Ga-delkareem, the contractual right to arbitrate in the 2002 partnership agreement and rider is unaffected by, and survives, the subsequent addendum to the rider for any disputes that arise out of the two earlier agreements.

Conclusion

For these reasons, the trial court properly granted the Marcum LLP defendants’ motion to compel arbitration and stay the case. We, therefore, affirm.

Affirmed.

      . "Appeals to the district courts of appeal of non-final orders are limited to those that ... determine ... the entitlement of a party to arbitration ,... ”

      . The parties have not argued the legal implications of Mukamal, on the one hand, invoking the arbitration clauses in the 2002 partnership agreement and rider to litigate breach of contract disputes he has with Marcum LLP arising out of the three agreements, and, on' the other hand, arguing in this court that the language of the addendum is an intent to cancel or abandon the right to arbitrate his fraud claim against Marcum LLP. For that reason, we too will not address this irony.

      ."We review an order granting or denying a motion to compel arbitration de novo." Roth v. Cohen, 941 So.2d 496, 499 (Fla. 3d DCA 2006).

      . The interpretation of the three agreements is governed by New York law.

      . Mukamal proffers, for example, that earlier drafts of the addendum included the arbitration clause.

      . The federal Second Circuit Court of Appeals, as we do here, was applying New York law.


text:
    Fernando A. CABA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5369
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017
   PER CURIAM.

Affirmed without prejudice to file a facially sufficient motion. See Saffold v. State, 850 So.2d 574, 576 (Fla. 2d DCA 2003).

NORTHCUTT, CRENSHAW, and SLEET, JJ., Concur.


author: SILBERMAN, Judge.

text:
    A.D.P., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5341
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017

      Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

A.D.P. appeals the disposition order that adjudicates him delinquent for grand theft motor vehicle and places him on juvenile probation for one day. Because the trial court should have granted his motion for judgment of dismissal, we reverse the disposition order.

At the adjudicatory hearing, the victim testified that on March 8, 2015, she acci-dently left her keys in the door at her apartment complex. The next morning her 2006 Toyota Highlander was missing. There was a bead necklace hanging from her rearview mirror, arid when the vehicle was returned to her the necklace was gone.

On March 11, 2015, an officer spotted the Highlander traveling quickly through a residential area. The officer could not see the driver, but the officer followed the vehicle. When the officer went around a corner he saw the vehicle parked in front of a building with four residential units. The keys were in the ignition, and a cell phone was found in the vehicle. Several individuals were standing on a nearby porch, and the officer tried to learn from them who had been driving the vehicle. The individuals were uncooperative and provided no information. A computer search of the location revealed that A.D.P. sometimes resided at the building where the vehicle was found parked. A.D.P.’s palm print was found on the rearview mirror of the vehicle, but ownership of the cell phone was not determined.

After the State rested its case, the defense moved for a judgment of dismissal and asserted that the State did not present evidence that A.D.P. intentionally or knowingly deprived the owner of her vehicle. The defense argued that no one put A.D.P. behind the wheel of the vehicle. The State argued that the car was found parked outside near where A.D.P. lived and that his print was found in the car. In making its argument, the State relied on the statutory inference from the proof of possession of recently stolen property. See § 812.022(2), Fla. Stat. (2014).

The trial court denied the motion, and the defense did not present any evidence. After closing arguments, the trial court found that A.D.P. committed grand theft motor vehicle. In making its ruling, the trial court stated as follows:

Basically, you gave me a case with the fingerprint.
Nobody’s placed him behind the wheel; nobody’s placed him in possession.
The fingerprint is on the rear-view mirror. This side of the room would argue that the rear-view mirror is in the middle of the car; usually passengers are not playing with the rearview mirror. Usually, the person that’s playing with the rearview mirror is the person that’s driving the car.
But when you add all of the little things together, when you add the hit that came off the computer that says that he sometimes lived there, that didn’t— that—and that person was doing their search while the other person was doing their print search, when it all comes together, it does point to [A.D.P.],

Based on the above reasoning, the trial court found that A.D.P. committed grand theft motor vehicle.

We conduct a de novo review of the denial of A.D.P.’s motion for judgment of dismissal and view the evidence in the light most favorable to the State. See M.D.S. v. State, 982 So.2d 1282, 1284 (Fla. 2d DCA 2008). In this circumstantial evidence case, the State must not only prove the elements of the crime, see id., but also must present evidence inconsistent with any reasonable hypothesis of innocence. See Knight v. State, 186 So.3d 1005, 1009 (Fla. 2016). Here, the State had to prove that A.D.P. knowingly obtained or used the victim’s vehicle with the intent to deprive her of the use of the property or to appropriate it to his own use. See § 812.014(1); M.D.S., 982 So.2d at 1284. If a person “possesses property that he knows is stolen, he can be convicted of theft.” M.D.S., 982 So.2d at 1284.

The statutory inference that the State relied upon provides that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” § 812.022(2). To be entitled to that inference, the State must prove that A.D.P. had possession of the property and that the property was “recently stolen.” M.D.S., 982 So.2d at 1285.

Evidence that a person was a passenger in a previously stolen vehicle is insufficient to prove the theft of the vehicle. Canady v. State, 813 So.2d 161, 161 (Fla. 2d DCA 2002); A.J.R. v. State, 726 So.2d 326, 327 (Fla. 2d DCA 1999); Prince v. State, 979 So.2d 1212, 1213 (Fla. 4th DCA 2008). When the State fails to show that the accused exercised dominion and control over the vehicle, such as when a person is merely a passenger, a motor vehicle theft has not been established. See A.D. v. State, 106 So.3d 67, 69-70 (Fla. 2d DCA 2013).

The trial court recognized that the State relied on the palm print on the rear-view mirror and the fact that the vehicle was parked outside a building where A.D.P. was known to have lived. The trial court determined that this evidence “pointed to” A.D.P. and observed that usually the driver is the one “playing with” the rearview mirror. But “suspicion alone is not sufficient to meet the State’s burden of proof.” M.D.S., 982 So.2d at 1284-85; see also Adams v. State, 693 So.2d 1031, 1032 (Fla. 2d DCA 1997) (recognizing that even when circumstantial evidence “strongly suggests guilt” it is- insufficient to prove grand theft when the State fails to present evidence inconsistent with a reasonable hypothesis of innocence). The State’s evidence was not inconsistent with a reasonable hypothesis that A.D.P. touched the rearview mirror while a passenger and that he did not participate in the véhicle’s theft some three days earlier. Therefore, the trial court should have granted the motion for judgment of dismissal, and we reverse the juvenile disposition order that adjudicates A.D.P. delinquent for grand theft motor vehicle.

Reversed,

KELLY and CRENSHAW, JJ., Concur.


author: BADALAMENTI, Judge

text:
    Christina M. PAYLAN, M.D., Petitioner, v. Timothy J. FITZGERALD, Esq., and Farmer & Fitzgerald, P.A., Respondents.
    Case No. 2D17-2071
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017

      Christina M. Paylan, pro se.
    Matthew Farmer, Tampa, for Respondents.
   BADALAMENTI, Judge

Dr. Christina Paylan seeks certiorari review of an interlocutory discovery order which directs her, in part, to produce confidential medical information to Respondents, Timothy Fitzgerald and Farmer & Fitzgerald, P.A. Because the trial court’s order departs from the essential requirements of the law and causes irreparable •harm by failing to comply with the substantive notice and authorization requirements set forth in section 456.057(7)(a), Florida Statutes (2016), we grant the petition and quash the order on review with respect to interrogatory number 8. '

I. FACTUAL AND PROCEDURAL BACKGROUND

In the underlying litigation, Dr. Paylan filed a complaint against Respondents, alleging legal malpractice, among other things, with respect to their representation of her in several criminal cases. In case number ll-CF-8930 the State charged Dr. Paylan with two counts of obtaining a controlled substance by fraud and one count of possession of a controlled substance, Demerol. Dr. Paylan allegedly wrote three unlawful prescriptions for Demerol to patient, “L.B.” L.B. denied that she authorized Dr. Paylan to obtain a controlled substance in her name or that she had any medical procedure scheduled with Dr. Pay-lan that required the use of Demerol. Ultimately, those criminal charges were dismissed.

In the context of the legal malpractice litigation, Respondents served Dr. Paylan with interrogatories. ' In interrogatory number 8, they asked Dr. Paylan to “[l]ist all the procedures and dates the procedures were performed or were scheduled to be performed that required [her] to use Demerol on patient LB between May 20, 2011 and June 30, 2011.” Dr.' Paylan objected to the interrogatory, arguing that responding to it would cause her to violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA) unless Respondents first obtained a release from L.B. for the requested confidential medical information. Dr. Paylan argued that Respondents should be required to contact L.B.’s attorney or L.B. to obtain authorization for release of the information. If they did so, she would release “whatever information she had.” The trial court found the information requested by Respondents to be relevant to the issues in the legal malpractice case, overruled Dr. Paylaris objection, and ordered her to respond to the interrogatory within twenty-five days. 'It further provided in its order that “[t]he records shall remain under seal and not released to anyone except counsel of record, the parties themselves or any expert.”

II. THE ARGUMENTS ON REVIEW

In her petition, Dr. Paylan argues that the trial court departed from the essential requirements of the law and caused irreparable harm by ordering her to release L.B.’s confidential medical information without (1) requiring an authorization for release or (2) providing L.B. with notice and an opportunity to be heard before the information was disclosed. In addition to citing HIPAA, she cites to section 456.057 in support of her position. She requests that we quash the trial court’s order with respect to interrogatory number 8.

Respondents point out that L.B. was interviewed and deposed on multiple occasions in the context of both the criminal case and a medical license proceeding against Dr. Paylan. In every instance, L.B. denied that she had any medical treatment scheduled with Dr. Paylan during June 2011 that would have required the use of Demerol. Furthermore, in a November 18, 2011, e-mail to Mr. Fitzgerald, Dr, Paylan stated that L.B. had consented to the release of her medical records.

Respondents argue that the information they sought in interrogatory number 8 is relevant to their defense of the legal malpractice case because Dr. Paylan must' allege and prove that she is actually innocent of the criminal charges from which her legal malpractice claim originated. See Cira v. Dillinger, 903 So.2d 367, 370-71 (Fla. 2d DCA 2005). As prior counsel of record in the criminal case, Respondents have some, but not all, of L.B.’s medical records. They also seek Dr. Paylan’s disclosure of any procedures that were scheduled to be performed on L.B. during May and June 2011—contrary to L.B.’s testimony—that required the use of Demerol. Respondents also point out that the trial court protected L.B.’s privacy by redacting her name and by limiting the use of the information to review by counsel of record, the parties, and their experts. Accordingly, Respondents request that the petition be denied.

III. ANALYSIS

To be entitled to certiorari relief with respect to an interlocutory order, a petitioner must establish that the order departs from the essential requirements of the law resulting in material injury for the remainder of the case that cannot 'be remedied on direct appeal. Trucap Grantor Tr. 2010-1 v. Pelt, 84 So.3d 369, 371 (Fla. 2d DCA 2012). Orders that require disclosure of confidential medical information meet the irreparable harm requirement for certiorari review because once such information is improperly disclosed, the harm caused by that disclosure cannot be undone. USAA Cas. Ins. Co. v. Callery, 66 So.3d 315, 316 (Fla. 2d DCA 2011). We must thus determine whether the trial court’s order departs from the essential requirements of the law.

HIPAA only preempts state laws relating to substantive privacy rights concerning individually identifiable health information which are less stringent than HIPAA’s privacy protections. 45 C.F.R. § 160.203(b) (2013); see also Lemieux v. Tandem Health Care of Fla., Inc., 862 So.2d 745, 748 n.1 (Fla. 2d DCA 2003). Because HIPAA permits disclosure of “protected health information in the course of any judicial or administrative proceeding ... [i]n response to an order of a court” without notice or authorization, it appears that section 456.057(7)(a) provides greater protection than HIPAA in this context so long as the subpoena is accompanied by an order of a court. Compare 45 C.F.R. § 164.512(e)(1)(i) (2013), with (e)(1)(ii). Accordingly, we must determine whether the trial court’s order complies with the requirements of section 456.057.

Section 456,057(7) provides in pertinent part as follows:

(7)(a)' Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient’s legal representative, or other health care practitioners and providers involved in the' patient’s care or treatment, except upon written authorization from the patient. However, such records may be furnished without written authorization under the following circumstances:
3.. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

(Emphasis added.) Thus, as we have previously explained, “[sjection 456.057(7) contains a broad prohibition preventing a health care practitioner who generates a medical record for a patient from furnishing that record to. ‘any person other than the patient or the patient’s legal representative ... except upon written authorization of the patient’ ” with certain, limited exceptions, including the issuance of a subpoena with notice to the patient. Graham v. Dacheikh, 991 So.2d 932, 934 (Fla. 2d DCA 2008). The plain language of the statute “unequivocally creates ‘a broad and express privilege of confidentiality as to the medical records and the medical condition of a patient.’” Crowley v. Lamming, 66 So.3d 355, 358 (Fla. 2d DCA 2011) (quoting Acosta v. Richter, 671 So.2d 149, 154 (Fla. 1996)). A trial court’s order that requires production of .medical records in violation of section 456,057(7).departs from the essential requirements of the law and causes irreparable harm. Graham, 991 So.2d at 937; see also Callery, 66 So.3d at 317. Similarly, an order that requires a health care practitioner to respond to interrogatories that will disclose confidential medical information in "violation of section 456.057(7) departs from the essential requirements of the law. See Coppersmith v. Perrine, 91 So.3d 246 (Fla. 4th DCA 2012).

Although Respondents do not dispute that they did not provide L.B. with notice of their intent to obtain the disputed information from Dr. Paylan, they argue that the trial court properly directed Dr. Paylan to respond with L.B.’s confidential medical information based upon L.B.’s alleged prior authorization and prior disclosure of the information in the context of other litigation. There are several problems with this argument.

First, the only evidence that L.B. authorized the release of the requested information is in an e-mail sent from Dr. Pay-lan to Mr. Fitzgerald in November 2011, in which Dr. Paylan stated that “B” and “M,” not L.B., had authorized the release of their medical records. Respondents have not provided an actual written authorization from L.B., and the e-mail reference does not clearly demonstrate that authorization was obtained from L.B. as opposed to some other patient, like “B” or “M.” Moreover, nothing in the e-mail demonstrates the scope of the authorization. The e-mail is from 2011, and nothing in the email or the record reflects the time period for which any such authorization would be in effect. The e-mail reference to an authorization was made more than six years before Respondents sought confidential medical information from Dr. Paylan for L.B. in February 2017.

Next, Respondents’ references to L.B.’s prior testimony and interviews have similar problems. All of those prior disclosures were made between 2011 and 2013 in the context of other cases, not the underlying legal malpractice proceeding. Moreover, the information that was disclosed was within the control of L.B. Although the information requested in this matter relates to the subject of L.B.’s prior disclosures, Respondents are seeking L.B.’s confidential medical information that is within Dr. Paylan’s control and information that refutes L.B.’s prior disclosures. In that sense, Respondents are n.ot seeking the same information previously obtained from L.B. See Colonial Med. Specialties of S. Fla., Inc. v. United Diagnostic Labs., Inc., 674 So.2d 923, 923 (Fla. 4th DCA 1996) (“The nature of the dispute, and the fact that respondent may already have in its records some of this patient information, does not negate the rights of such non-party patients to privacy and confidentiality as to their personal information.”); see also Sachs v. Innovative Healthcare, Inc., 799 So.2d 355, 358 (Fla. 3d DCA 2001) (quoting Colonial for the foregoing proposition).

In addition, Respondents do not argue that they cannot comply with the statute by obtaining a written authorization from L.B. or by providing her with the requisite notice. See Graham, 991 So.2d at 935-37 (recognizing that the supreme court’s decision in Amente v. Newman, 653 So.2d 1030 (Fla. 1995), at most permitted a court'to override the requirements of section 456.057 if a party makes a showing that compliance with the statute is impossible); see also Callery, 66 So.3d at 317 (following Graham). In fact, their arguments suggest that they have the ability to contact L.B. through her prior counsel to either obtain her authorization or provide her with notice. Although it seems that L.B. will almost surely consent to the disclosure of the requested information (or not object to its disclosure), the litigants and the parties must comply with the substantive notice and authorization requirements of section 456.057 when they have the ability to comply-

IV. CONCLUSION

Because the trial court’s order departs from the essential requirements of the law by failing to comply with section 456.057(7), we grant the petition and quash the order on review to the extent it requires Dr. Paylan to respond to interrogatory number 8.

Petition granted; order quashed.

SILBERMAN and CRENSHAW, JJ., Concur.

      . Pub. L. No. 104-191, 110 Stat. 1936 (1996).


author: LaROSE, Chief Judge.

text:
    Carmen SINGH a/k/a Singh Carmen, Appellant, v. U.S. BANK, N.A., as Trustee FOR the Certificate Holders of CITIGROUP MORTGAGE LOAN TRUST, INC. Asset-Backed Pass-Through Certificates, Series 2007-AMC1; and Whitney National Bank, Successor by Merger of Signature Bank, Appellees.
    Case No. 2D16-1462
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017.

      Kristina E. Feher of The Law Office of Robert Eckard & Associates, P.A., Palm Harbor, for Appellant.
    Sonia Henriques McDowell of Quintai-ros, Prieto, Wood & Boyer, P.A., Orlando, for Appellee.
    No appearance for Appellee Whitney National Bank.
   LaROSE, Chief Judge.

Carmen Singh appeals a March 8, 2016, final judgment of foreclosure. We have jurisdiction, see Fla. R. App. P. 9.030(b)(1)(A), and reverse.

Background

The procedural history of this case is more complex than the legal issue we must decide. In July 2010, U.S. Bank, N.A., sued to foreclose after Ms. Singh failed to make payments on a promissory note secured by a home mortgage. On September 1, 2010, Ms. Singh moved to dismiss the bank’s verified complaint. At the end of that month, Ms. Singh’s counsel moved to withdraw. About one year later, Ms. Singh filed for bankruptcy. The foreclosure case was automatically stayed. In April 2012, the bankruptcy court dismissed Ms. Singh’s bankruptcy petition. But two years later, Ms. Singh filed another bankruptcy petition, again staying the foreclosure case. In July 2014, the bankruptcy court dismissed her second petition.

In early March 2015, Ms. Singh’s counsel filed a motion for substitution of counsel. Within a month, on April 9, 2015, the bank responded to the still-pending motion to dismiss. The trial court denied the motion by order dated that same day. It directed Ms. Singh to answer the complaint within thirty days. The trial court also granted her first lawyer’s motion to withdraw. The trial court ordered that Ms. Singh retain new counsel within thirty days, if she so desired. The order reflects that it was sent to Ms. Singh.

On May 20, 2015, after receiving no answer from Ms. Singh, the bank moved for a default judgment. The next day, the trial court scheduled a nonjury trial for June 26, 2015. On June 23, 2015, Ms. Singh filed her answer and affirmative defenses. On June 24, 2015, she moved to continue the nonjury trial. Ms. Singh filed an affidavit stating that she had never received a copy of the April 9, 2015, order denying her motion to dismiss, or the order granting the motion to substitute counsel. As a result, she claims that she was unable to answer the complaint within the time specified in the April 9 order. After a hearing, the trial court, on June 25, 2015, granted the bank’s motion. Ms. Singji contends that a default was improper because she answered the complaint the day before the hearing. Notably, the trial court never entered an actual default judgment in favor of the bank.

The trial court also denied Ms. Singh’s motion to continue the trial. At the June 26, 2015, trial, the court file with the original note and mortgage did not get delivered to the judge’s chambers. Ms. Singh successfully moved to dismiss the case. The bank successfully moved for reconsideration and the trial court rescheduled the trial. After a March 6, 2016, nonjury trial, the trial court entered judgment for the bank. Because of the earlier order of default, the trial court refused to allow Ms. Singh to defend against the action aside from contesting the amount of damages.

Standard of Review

“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). To the extent that the foreclosure judgment is based on the order of default, we review that order for an abuse of discretion. Kirkland’s Stores, Inc. v. Felicetty, 931 So.2d 1013, 1015 (Fla. 4th DCA 2006).

Analysis

The bank argues that Ms. Singh’s appeal is untimely because she is attempting to appeal the order of default entered on June 25, 2015. We do not have a transcript from the default motion hearing. Ms. Singh, of course, bears the burden to provide an adequate record.to demonstrate error. See Mills v. Heenan, 382 So.2d 1317, 1318 (Fla. 5th DCA 1980). We must question whether an order of default would be separately appealable; the trial court only granted the bank’s motion for default. See Westwood One, Inc. v. Flight Express, Inc., 940 So.2d 1241, 1243 (Fla. 5th DCA 2006) (holding.that an order" which grants a motion for default “does not fall within the parameters of’ Florida Rule of Appellate Procedure 9.130). Further, the trial court’s order granting default did not enter final judgment in the case. See Ross v. Prospectsplus!, Inc., 182 So.3d 802, 803-04 (Fla. 2d DCA 2016) (dismissing the appeal because it was an appeal from a nonfinal nonappealable order and final judgment had not-been entered on the case). Because the trial court’s order of default is a nonfinal, nonappealable order, Ms.. Singh could not appeal it.

Beyond dispute, however, we have jurisdiction to review the final judgment of foreclosure and “any ruling or matter occurring before filing of the notice tof appeal].” Fla. R. App. P. 9.110(a)(1), (h). The trial court did not enter final judgment until about early March 2016. Therefore, we disagree. with the bank and conclude that Ms. Singh’s appeal is timely.

Under Florida Rule of Civil Procedure 1.500(c), a party may file a pleading any time before default is entered. In Wadsworth v. J.P. Morgan Chase Bank, N.A., 123 So,3d 688, 690 (Fla. 4th DCA 2013), the court determined that the trial court erred in entering default where the defendant filed an answer four days before entry of a default judgment. Ms. Singh filed her answer on June 23, 2015; the trial court granted the bank’s motion for default' on June 25, 2015. Consequently, the trial court erroneously granted the bank’s motion. See Thompson v. Hancock Bank, 158 So.3d 613, 615 (Fla. 5th DCA 2013) (“[T]he application of rule 1.500 precludes the en-' try of default when a defendant’s answer is served prior to entry of default even where it is not filed within the time granted by the trial court upon the denial of a motion to dismiss.”); Pinnacle Corp. of Cent. Fla., Inc. v. R.L. Jernigan Sandblasting & Painting, Inc., 718 So.2d 1265, 1266 (Fla. 2d DCA 1998) (“Since the answer and affirmative defenses in this case' were filed before an order of default was entered, the trial court erred in failing" to vacate the default judgment it improperly entered against [defendant].”).

As emphasized earlier,' we question whether the trial court’s order granting the motion for default may even be considered a default judgment. There was no entry of a default or a default judgment. Nevertheless, Ms. Singh was unable to raise any defenses at trial because the trial court believed there was a default entered against her.

Conclusion

We reverse the final judgement of foreclosure and remand for further proceedings consistent with this opinion, including the presentation of any available defenses to the bank’s foreclosure case.

Reversed and remanded with instructions. ' .

KELLY and SLEET, JJ., Concur.


text:
    Jeffrey MORENCY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3280
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 14, 2017
    Jeffrey Morency, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jeffrey Morency (“Defendant”) appeals the denial of his motion for access to any audio or videorecording of his trial. Defendant was convicted of robbery with a firearm and sentenced to thirty years’ incarceration. He subsequently filed the instant motion, which was summarily denied by the trial court. In its order, the trial court held that any audiorecording created by digital electronic court reporting systems would not be a court record subject to public disclosure. For the following reasons, we reverse the order and remand the case to the trial court.

Public access to judicial records is governed by Florida Rule of Judicial Administration 2.420. This rule provides that “[t]he public shall have access to all records of the judicial branch of government” other than those covered by certain exceptions. Fla. R. Jud. Admin. 2.420(a). It defines “[rjecords of the judicial branch” as, in pertinent part, all records, including court records, regardless of physical form, made in connection with the transaction of official business by any judicial branch entity. Fla. R. Jud. Admin. 2.420(b)(1). Court records include “electronic records, videotapes, or stenographic tapes of depositions or other proceedings filed with the clerk, and electronic records, videotapes, or stenographic tapes of court proceedings.” Fla. R. Jud. Admin. 2.420(b)(1)(A).

The trial court based its decision upon the holding in Media General Operations, Inc, v. State,, wherein the Second District Court denied a petition for writ of mandamus directed to the Chief Judge of the Sixth Judicial Circuit to order him to release the audiorecording of a sentencing hearing. 12 So.3d 239, 240 (Fla. 2d DCA 2009). The court concluded that “the audio recording created by digital electronic court reporting systems is not, in and of itself, an ‘electronic record’ of the proceedings” subject to public records disclosure. Id.

The State concedes that, in response to the Media General decision, the Florida Supreme Court amended Florida Rule of Judicial Administration 2.535 to clarify that an “ ‘[electronic record’ means the audio, analog, digital, or video record of a court proceeding.” Fla. R. Jud. Admin. 2.535(a)(5). It further noted that it declined to adopt several proposed amendments to Florida Rules of Judicial Administration 2.420 and 2.535 “that would delete ‘electronic records, videotapes, or stenographic tapes of court proceedings’ from the definition of ‘court records’ and would restrict disclosure of electronic records except as permitted under certain circumstances in the discretion of the court or the chief judge.” In re Amendments to the Fla. Rules of Jud. Admin. & the Fla. Rules of App. P.-Implementation of Comm’n on Trial Court Performance & Accountability Recommendations, 13 So.3d 1044, 1047 (Fla. 2009). The trial court therefore erred in relying upon Media General in its conclusion that an audioreeording of Defendant’s trial would not qualify as a court record subject to disclosure. The State also concedes that remand would be appropriate.

We note that the trial court suggested in its order that, because a court reporter was present during Defendant’s trial, there may have been no audio or videore-cording made. We therefore reverse the order under review and remand for the trial court to determine whether such a recording exists and for further proceedings consistent with this opinion.

REVERSED and REMANDED.

SAWAYA, PALMER, and BERGER, JJ., concur.


author: BILBREY, J.

text:
    Sandra A. FORERO and William L. Forero, Appellants, v. GREEN TREE SERVICING, LLC, Appellee.
    CASE NO. 1D16-2151
    District Court of Appeal of Florida, First District.
    Opinion filed July 14, 2017

      Daniel W. Hartman of Hartman Law Firm, P.A.; Eric S. Haug of Eric S. Haug Law & Consulting, P.A., Tallahassee, for Appellants.
    Michael Ruff of the Law Office of Timothy D. Padgett, P.A., Tallahassee, for Ap-pellee.
   BILBREY, J.

Sandra and William Forero appeal the final judgment of foreclosure entered in favor of Ditech Financial LLC, as successor by merger to Green Tree Servicing, LLC, which determined $158,459.30 as the amount due and payable to Ditech and ordered the foreclosure of the lien on the real property. Because the foreclosure action was not rendered res judicata by the two previously dismissed foreclosure suits on the same note, and because the statute of limitations in section 95.11(2)(c), Florida Statutes, did not bar the action due to the inclusion within the allegations of at least some defaulted installment payments within five years of the date the complaint was filed, the judgment is affirmed.

We review de novo the trial court’s application of the law to the pleadings, other filings in the record, and the uncontrovert-ed evidence admitted at trial. See Bartram v. U. S. Bank Nat’l Ass’n, 211 So.3d 1009, 1015 (Fla. 2016).

On December 3, 2002, William Forero executed a promissory note in favor of the lender, Bank of America (BOA), for a loan of $171,992.00. The note was secured by a mortgage on residential real property, also executed on December 3, 2002, by Mr. Forero and his wife, Sandra Forero. Based on the Foreros’ failure to pay on “December 1, 2008 and all subsequent payments,” BOA filed suit for foreclosure on February 18, 2010. Bank of America v. Forero, Case No. 2010 CA 000582 (Fla. 2d Cir., Leon Cnty.). BOA voluntarily dismissed this action on December 13, 2011. See Fla. R. Civ. P. 1.420(a)(1).

BOA filed a second foreclosure action on February 14, 2013, against the Foreros and based on the same allegation of default for failure to pay on “December 1, 2008 and all subsequent payments.” Bank of America v. Forero, Case No. 2013 CA 000467 (Fla. 2d Cir., Leon Cnty.). BOA voluntarily dismissed this second action on April 4, 2013. Pursuant to rule 1.420(a)(1), Florida Rules of Civil Procedure, this second voluntary dismissal “operates as an adjudication on the merits ... based on or including the same claim.”

The mortgage was assigned by BOA to Green Tree Servicing, LLC, on September 19, 2013, “together with the note(s) and obligations therein described,” and the Assignment was filed in the public records in Leon County, Florida. By letters dated July 29, 2013, and addressed to both of the Foreros individually, Green Tree notified the Foreros of the default, their options to cure the default, and the acceleration of “all amounts due under the loan agreement” if the default was not cured within 30 days,

On April 7, 2014, Green Tree filed the third foreclosure action against the Fore-ros on the same note and mortgage and based on the same allegation of default upon the December 1, 2008, payment “and all subsequent payments.” Green Tree Servicing, LLC v. Forero, Case No. 2014 CA 000921 (Fla. 2d Cir., Leon Cnty.). The copy of the note attached to the complaint in the 2014 case included an undated blank indorsement, making the note payablé to bearer and negotiable by transfer of possession alone. See § 673.2051(2), Fla. Stat.; see also §§ 671.201(21), 673.3011, Fla. Stat.

The Foreros raised several affirmative defenses in their responsive pleading, including res judicata due to the previous adjudication on the merits by operation of rule 1.420, Florida Rules of Civil Procedure. The Foreros also asserted 'that the 5-year statute of limitations had'expired by the time the third foreclosure complaint against them was filed. See § 95.11(2)(c), Fla. Stat. (action to foreclose mortgage must be commenced within 5 years).

During the pendency of the litigation, Green Tree merged with Ditech Financial, LLC. The plaintiffs witness, Mr. Kevorkian, had been an employee of Green Tree, and at the time of trial was employed as a foreclosure and mediation specialist by Di-tech. Mr, Kevorkian testified that Ditech was the servicer Of the loan in the case. Numerous -documents were admitted into evidence at trial, and Mr. Forero testified on his own behalf. Mr. Forero admitted at trial that the monthly payment due December 1, 2008, was not made and no additional-payments were made after November 2008.

At the conclusion of the evidence and argument of counsel,- the trial court granted foreclosure and determined that the principal balance due was $158,459.30. The court denied any award .for interest, late fees, and other sums due to Ditech’s failure to prove amounts for these items.

On appeal, the Foreros challenge the final judgment of foreclosure on grounds that the action was barred by operation of rule 1.420(a)(1), Florida Rules of Civil Procedure, and by the -statute of limitations provided • by section 95.11(2)(c), Florida Statutes.

Under rule 1.420, a. second voluntary dismissal of a suit by the plaintiff “operates as an adjudication on the merits.” This provision is often referred to as the “two dismissal rule.” See, e.g., Edmondson v. Green, 755 So.2d 701, 704 (Fla. 4th DCA 1999). However, rule 1.420 itself does not actually preclude subsequent actions. As explained in Olympia Mortgage Corp. v. Pugh, 774 So.2d 863, 867 (Fla. 4th DCA 2000):

The two dismissal rule does not bar a subsequent suit. The two dismissal rule merely states that when the rule applies the dismissal of the second suit operates as an adjudication on the merits. Once there is an adjudication on the merits, it is the doctrine of res judicata which bars subsequent suits on the same cause of action.

In Olympia, the court found a lack of identity between the first and second causes of action because, in addition to the default alleged in. the first action, the subsequent missed payments and possible new default resulting from these missed payments at issue in the second action did not yet exist and thus could not have been at issue in the first suit. Id. at 867. Because new facts were at issue regarding the new missed payments, the. Fourth District Court of Appeal found an absence of identity of the first and second causes of action, and thus the two-dismissal rule did' not render the third suit res judicata so as to bar the third action. Id.

The Florida Supreme Court addressed the viability.of. subsequent foreclosure actions on the same note and mortgage, but with different occurrences of default, in Singleton v. Greymar Associates, 882 So.2d 1004 (Fla. 2004). There, the Court held:

We agree with the position of the Fourth District that when a second and separate action for foreclosure is sought for a default that involves a separate period of default from the one alleged in the first action, the case is not necessarily barred by res judicata.
While':it is true that a foreclosure action .and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue.
We conclude that the doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit. In this case the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.

Id. at 1006-08.

In this case an.d the two previous, dismissed cases, the period of default alleged is open-ended—“December 1, 2008 and all subsequent payments.” The actual number of individual monthly payments missed as of the filing date of each complaint differed due to the passage of time between the 2010 suit, the 2013 suit, and this 2014 complaint. It was undisputed that the first missed installment payment, and thus the first default on the note and mortgage, occurred December 1, 2008. It was also undisputed that no payments were made for each month thereafter. Accordingly, the actual defaults upon which the previous foreclosure actions' were based did not include the additional defaults for the subsequent months at issue in this third action, even though, the same language was used in each complaint to describe the period of default. Furthermore, the note was accelerated anew based upon failure of the Foreros to cure the default. Applying the rationales of Olympia Mortgage Corp. and Singleton, this third foreclosure action was not barred as res judicata, even in light of rule 1.420(a), because the open-ended series of defaults included different missed payments at issue in each suit.

The Foreros’ position that this third action was barred as untimely by the statute of limitations must also fail on appeal. The purpose of a statute of limitations “is to protect unwitting defendants from the unexpected enforcement of stale claims brought by plaintiffs who have slept on their, rights.” Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1207 (Fla. 2d DCA 2003). On the other hand, as recognized in Singleton, the equitable nature of the remedy of foreclosure, the “unique nature of the mortgage obligation,” and the possibility that debtors could be unjustly enriched if allowed to escape repayment due merely to the passage of time and an initial plaintiffs inability to prove the initial default must be considered before the right to enforce a promissory note may be cut off. Singleton, 882 So.2d at 1007-08.

Balancing these purposes, the Florida Supreme Court applied the concept of a series of actionable defaults in Bartram. Summarizing the post-Singleton case law, the Court agreed “with the reasoning of both our appellate courts and the federal district courts that our analysis in Singleton equally applies to the statute of limitations context present in this case.” Bantram, 211 So.3d at 1019. The Court held, “with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.” Id.

Applying Singleton to this case, the voluntary dismissals of the two previous foreclosure actions did not bar Ditech’s subsequent action for foreclosure as res judicata because the causes of action are not identical. The additional payments missed by the time the third action was filed, which were not bases for the previous actions because they had not yet occurred, constitute separate defaults upon which the third foreclosure action may be based. Additionally, acceleration of the note occurred at a different time. Accordingly, even though the same phrase was used to describe the default in each action—“December 1, 2008 and all subsequent payments”—the meaning of the phrase expanded as time progressed and additional payments were missed. At most, the doctrine of res judica-ta affected Ditech’s ability to bring suit on the certain installment payments at issue in the second suit prior to the voluntary dismissal. But Singleton makes clear that enforcement of the note via a foreclosure action is not barred by res judicata for the defaults occurring after April 4, 2013, the date the second suit was dismissed.

Likewise, this third foreclosure action was not barred by the 5-year statute of limitations. Under the facts of this case, where it was alleged and established at trial that no payments had been made on the mortgage since November 2008, each missed payment constituted a new default. As stated in Bartram, “the statute of limitations runs from the date of each new default providing the mortgagee the right ... to accelerate all sums then due under the note and mortgage.” 211 So.3d at 1019; see also Bollettieri Resort Villas Condo. Ass’n v. Bank of New York Mellon, 198 So.3d 1140, 1142-43 (Fla. 2d DCA 2016) (holding complaint based on initial default over five years prior to complaint, but also alleging “no subsequent payments have been made,” sufficient to state timely cause of action based on any missed payments since the initial breach), certifying conflict with Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957 (Fla. 5th DCA 2015).

Because this third foreclosure action upon the same note and mortgage and against the same defendants was not barred as res judicata or by the applicable statute of limitations, the final judgment of foreclosure is AFFIRMED.

LEWIS and WINOKUR, JJ., CONCUR.

      . The notice of default predating the assignment is not material.here.

      . The Foreros also challenge Green Tree/Di-tech’s proof of standing to enforce the promissory note and compliance with the notice of default requirements in the note and mortgage. The record shows no error by the trial court on these issues and we affirm on these grounds without further comment.

      . We note the opinion in Nolan v. MIA Real Holdings, LLC, 185 So.3d 1275 (Fla. 4th DCA 2016), where the appellate court reversed the judgment of foreclosure in the third action on the same note and mortgage, However, the opinion stated that the third action was upon "the same breach" of the promissory note without specifying the date or dates of nonpayment alleged in the lawsuits and thus not identifying the particular defaults at issue in the different actions. Id. at 1276. Nolan does not require dismissal of a subsequent suit where the defaults at issue in the actions are not identical.

      . The effect of the passage of time, if any, upon the amount recoverable via foreclosure judgment when the initial default in a continuous series of defaults occurred more than five years before the filing of the complaint, was not raised by the parties at trial or on appeal. Accordingly, we do not reach the issue of whether the equitable concerns that debtors not be unjustly enriched by a plaintiff’s previously dismissed actions should be balanced on the other hand by the purpose of the statute of limitations and other doctrines designed to impose consequences for stale claims and failure to timely and diligently prosecute legal action by the proper party. See U. S. Bank Nat'l Assoc. v. Bartram, 140 So.3d 1007, 1013-1014 (Fla. 5th DCA 2014), approved, 211 So.3d 1009 (Fla. 2016) (discussing federal cases suggesting that "defaults that are now more than five years old may be subject to the statute of limitations” while the later defaults were still actionable).


text:
    FT. WALTON BEACH MEDICAL CENTER/BROADSPIRE, Appellants, v. Tara YOUNG, Appellee.
    CASE NO. 1D16-2162
    District Court of Appeal of Florida, First District.
    Opinion filed July 14, 2017.

      Will B. Ramhofer and Jerry M. Hayden of Vernis and Bowling P.A., Miami, for Appellants.
    Nicolette E. Tsambis of Smith, Fedde-. ler, Smith, P.A., Lakeland, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) argues the Judge of Compensation Claims (JCC) erred on four grounds. We agree with the E/C that the JCC’s award of permanent total disability (PTD) benefits is contrary to Westphal v. City of St. Petersburg (Westphal II), 194 So.3d 311 (Fla. 2016). Accordingly, we reverse on that ground, and need not address the remaining issues on appeal.

■ ' ■ I.

‘ In the April 15, 2016, merits order, the JCC found Claimant entitled to PTD benefits, relying on this Court’s opinion in Westphal v. City of St. Petersburg (Westphal I), 122 So.3d 440 (Fla. 1st DCA 2013) (en banc). The JCC denied the alternative claims for temporary benefits based on a finding that Claimant had been paid in excess of 104 weeks of temporary benefits. Further, the JCC found that Claimant was not at maximum medical improvement (MMI) either physically or psychologically, noting that even though she was physically released to work, she was hot released for work due to her mental condition. On May 12, 2016, the E/C filed a 'timely appeal of those portions of the merits order awarding PTD, permanent impairment benefits, and related penalties, interest, costs and attorney fees; .No cross-appeal was filed.

On June 9, 2016, the Florida Supreme Court released Westphal II, quashing Westphal I. The supreme court concluded-that the 104-week limitation on the payment of temporary total disability (TTD) benefits under paragraph 440.15(2)(a), Florida Statutes (2009), is unconstitutional as it deprives an injured worker, who has not reached MMI, of disability benefit eligibility for an indefinite period of time. Westphal II, 194 So.3d at 313.

II.

We review de novo whether a JCC utilized the correct legal standard. See Banks v. Allegiant Sec., 122 So.3d 983, 985 (Fla. 1st DCA 2013) (“Our review of an erroneous application of the law is de novo.”). “An appellate court is generally required to apply the law in effect at the time of its decision.” Fla. Patient’s Comp. Fund v. Von Stetina, 474 So.2d 783, 787 (Fla. 1985).

In Florida Forest and Park Service v. Strickland, 154 Fla. 472, 18 So.2d 251, 253 (1944), the Florida Supreme Court addressed the retrospective/prospective application of an appellate decision overruling a former decision, explaining:

Generally speaking, therefore, a judicial construction of a statute will ordinarily be deemed to relate back to the enactment of the statute, much as though the overruling decision had been originally embodied therein. To this rule, however, there is a certain well-recognized exception that where a statute has received a given construction by a court of supreme jurisdiction and property or contract rights have been acquired under and in accordance with such construction,. such rights should not be destroyed by giving to a subsequent overruling decision a retrospective operation.

In Strickland, while the appeal was ongoing, the supreme court “expressly overruled a previous decision of the court ... wherein we had given to the applicable statutes an entirely different construction.” Id. at 252. Accordingly, the supreme court declined to apply to Mr. Strickland’s case the effect of that overruling, determining that it had only prospective application. Id. at 254. Here, however, before Westphal II there had never been a construction of paragraph 440.15(2)(a) by the “court of supreme jurisdiction,” Westphal I was a decision by a court of intermediate appellate jurisdiction. Moreover, at all times relevant to the instant proceeding, review of Westphal I was pending in the supreme court, as the supreme court had accepted jurisdiction by order of December 9, 2013, and the claims for the requested benefits were filed in 2014 and 2015. As such, the holding in Westphal II applies to the facts of this case.

Because the JCG’s determination of entitlement to -PTD benefits was based on the Claimant reaching “statutory MMI” due to the exhaustion of 104 weeks of temporary benefit payments, the award of those benefits was error. See Westphal II, 194 So.3d at 320-21. Accordingly, we reverse the order on appeal and remand for proceedings consistent with Westphal II.

REVERSED and REMANDED.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


author: LUCAS, Judge.

text:
    Julio S. CENDEJAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5244
    District Court of Appeal of Florida, Second District.
    Opinion filed July 19, 2017
    Julio S. Cendejas, pro se.
   LUCAS, Judge.

Julio Cendejas appeals an order summarily denying his motion for , postconviction relief, which he filed under Florida Rule of Criminal Procedure 3.850 following his guilty plea to several offenses. We reverse the postconviction court’s order and remand for further proceedings.

In his motion, Mr. Cendejas raised three claims of ineffective assistance of trial counsel and one claim of cumulative error based upon the cumulative effect of the three ineffective assistance claims. In summarily denying relief on each of the ineffective assistance claims, the postconviction court relied upon the fact that Mr. Cendejas had entered into a guilty plea, thereby waiving certain rights, and upon various documents in the record to conclusively refute the allegations in his motion. However, the court failed to attach any record documents to its order. Our record consists of Mr. Cendejas’ motion and the postconviction court’s order.

Because the postconviction court failed to attach to its order those portions of the record which it found conclusively refuted the allegations of Mr. Cendejas’ ineffective assistance claims, we must reverse the summary denial of those claims and remand for further proceedings. See Fla. R. App. P. 9.141(b)(2)(D). If the postconviction court again summarily denies those claims, it must attach the pertinent portions of the record that conclusively refute each claim or grant Mr. Cendejas an evi-dentiary hearing. See Fla. R. Crim. P, 3.850(f)(5), (8). We also reverse the summary denial of the cumulative error claim, which the postconviction court must reconsider after it has resolved the ineffective assistance claims on remand. See Flint v. State, 84 So.3d 469, 471 (Fla. 2d DCA 2012).

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.

      . In claims one and three, Mr. Cendejas alleged that but for counsel’s errors the outcome of the proceedings would have been different. Because Mr. Cendejas' motion appears to follow a guilty plea, he must demonstrate a reasonable probability that but for counsel’s errors he would not have entered the plea and would have insisted on going to trial to be entitled to relief. See Hernandez v. State, 124 So.3d 757, 762 (Fla. 2012). If appropriate, Mr. Cendejas should be given an opportunity to amend his claims to state a facially sufficient claim of prejudice. See Fla. R. Crim. P. 3.850(f)(3); see also Blue v. State, 159 So.3d 242, 243 (Fla. 3d DCA 2015).