author: ORFINGER, J.

text:
    SAND LAKE HILLS HOMEOWNERS ASSOCIATION, INC., Appellant, v. Jeffrey C. BUSCH, Susan D. Busch and David F. Allan, et al., Appellees.
    Case No. 5D16-21
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 20, 2017
    Rehearing Denied Feb. 17, 2017

      John Bengier, of Meier, Bonner, Musz-ynski, O’Dell & Harvey, P.A., Longwood, for Appellant.
    Frederic B. O’Neal, Windermere, for Appellees, Jeffrey C. Busch and Susan D. Busch.
    No Appearance for other Appellees.
   ORFINGER, J.

Appellant, Sand Lake Hills Homeowners Association, Inc., appeals a final judgment awarding attorney’s fees to Jeffrey C. Busch and Susan D. Busch, pursuant to sections 57.105(7) and 712.08, Florida Statutes (2015). We affirm in part and reverse in part.

In the 1970s and 1980s, an area loosely known as Sand Lake Hills was developed in sections, with each section having its own separately recorded covenants and restrictions. The Busches’ home is located in Section Three of the Sand Lake Hills community. The original covenants and restrictions applicable to Sand Lake Hills Section Three were recorded in 1978. Under the original covenants and restrictions, Appellant was a voluntary homeowners’ association where some homeowners voluntarily contributed to the upkeep and maintenance of the community, while others did not. Because membership was voluntary, Appellant is not a statutory homeowners’ association. See § 720.301(7), Fla. Stat. (2000) (defining homeowners’ association as “Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel”).

In 2004, Appellant recorded a “Notice Of Reassertion Of Covenants And Restrictions Pursuant To Chapter 712, Florida Statutes” in the public records of Orange County, Florida (“MRTA Preservation Notice”) in an effort to preserve the covenants and restrictions applicable to Sand Lake Hills Section Three. Appellant also prepared an Amended and Restated Declaration of Covenants and Restrictions Of Sand Lake Hills (“ARD”), in an effort to convert the voluntary homeowners’ association to a statutory homeowners’ association with mandatory assessments. Appellant, through its Board of Directors, asked the individual homeowners to execute a “Joinder and Consent” agreeing to the ARD with the new declarations. After approval by more than fifty percent of the Section Three homeowners, Appellant recorded the ARD in the public records.

The Busches did not consent to the ARD. Nonetheless, Appellant informed the Busches that since a majority of the Section Three property owners had adopted the ARD, it was “legally binding on all property owners of Sand Lake Hills, Section 3,” and the “current assessment for calendar year 2008 [of] $100.00” was required to be paid. The Busches objected, and filed a complaint for slander of title, declaratory relief, and injunctive relief in Orange County Case No. 2008-CA-012464 (the “ARD case”). In a separately filed lawsuit in Orange County Case No. 2010-CA-011262, the Busches challenged Appellant’s authority to file the 2004 MRTA Preservation Notice (the “MRTA ease”). Ultimately, the trial court found that Appellant did not have the authority to file the 2004 MRTA Preservation Notice. The trial court also ruled the ARD ineffective as to the Busches, and therefore, it did not affect their title. Those rulings are unchallenged on appeal.

The dispute then turned to attorney’s fees, the subject of this appeal. The court granted the Busches’ fee motion against Appellant, concluding that the ARD provided for the recovery of attorney’s fees in any action to enforce compliance with its provisions and that the reciprocal provisions of section 57.105(7), Florida Statutes (2015), entitled the Busches to recover their reasonable fees against Appellant on count II of the ARD case. The court also awarded attorney’s fees pursuant to section 712.08 in the MRTA case, finding that the 2004 MRTA Preservation Notice, which Appellant filed, was a false or fictitious claim.

1. The ARD Case and Section 57.105(7), Florida Statutes.

“It is well-settled that attorney[’s] fees can derive only from either a statutory basis or an agreement between the parties.” Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1198 (Fla. 2009) (citing State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla. 1993)). When entitlement to attorney’s fees is based on a provision in a contract, an appellate court reviews the matter de novo. Gibbs Constr. Co. v. S.L. Page Corp., 755 So.2d 787, 790 (Fla. 2d DCA 2000). But, a stranger to the contract cannot recover attorney’s fees based on the contract. See HFC Collection Ctr., Inc. v. Alexander, 190 So.3d 1114, 1116-17 (Fla. 5th DCA 2016).

Here, the trial court found that the ARD was ineffective as to the Busches and did not encumber their property. “[W]here a motion for attorney’s fees is based on a prevailing-party provision of a document, the fact that a contract never existed precludes an award of attorney’s fees.” David v. Richman, 568 So.2d 922, 924 (Fla. 1990). Because the trial court found that no contract existed between Appellant and the Busches, the Busches were not entitled to attorney’s fees under the fee provision of the ARD. Thus, we reverse the order awarding attorney’s fees to the Busches and against Appellant pursuant to the ARD' and section 57.105(7).

2. The MRTA Case ■

The court awarded attorney’s fees pursuant to section' 712.08 in the MRTA case, concluding that the MRTA Preservation Notice was a false or fictitious claim. Appellant argues that this was error because (1) it is not a homeowners’ association within the meaning of chapter 712 and (2) it did not intentionally file a false or fictitious claim within the meaning of section 712.08.

A statute that awards attorney’s fees is in derogation of the common law rule that each party pay its own attorney’s fees and must be strictly construed. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla. 2003). The question before us is a matter of statutory interpretation, which we review de novo. Eg., Borden v. East-European Ins. Co., 921 So.2d 587, 591 (Fla. 2006); State v. Glatzmayer, 789 So.2d 297, 301 n.7 (Fla. 2001). Legislative intent is the polestar that guides our analysis regarding statutory interpretation. E.g., Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013); Bautista v. State, 863 So.2d 1180, 1185 (Fla. 2003); Patel v. State, 141 So.3d 1239, 1243 (Fla. 5th DCA 2014). To discern legislative intent, our analysis begins with the statute’s plain language. Eg., Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla. 2007); Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 5 (Fla. 2004); State v. Dugan, 685 So.2d 1210, 1212 (Fla. 1996); Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). “When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005). The statute’s plain and ordinary meaning must control unless this leads to an unreasonable result or a result clearly contrary to legislative intent. Id.

The Florida Legislature enacted MRTA to simplify and facilitate land transactions. See Blanton v. City of Pinellas Park, 887 So.2d 1224, 1227 (Fla. 2004). Section 712.05(1), Florida Statutes (2015), provides, in part: “[A] homeowners’ association desiring to preserve any covenant or restriction may preserve and protect the same from extinguishment by the operation of this act by filing for record, during the 30-year period immediately following the effective date of the root of title, a written notice .,.. ” Section 712.06, Florida Statutes (2015), sets forth the contents of the notice and must be carefully followed because pursuant to section 712.08, a person who files a false notice is liable to the owner for costs, attorney’s fees, and damages sustained by the owner:

Filing false claim.—No person shall use the privilege of filing notices hereunder for the purpose of asserting false or fictitious claims to land; and in any action relating thereto if the court shall find that any person has filed a false or fictitious claim, the court may award to the prevailing party all costs incurred by her or him in such action, including a reasonable attorney’s fee, and in addition thereto may award to the prevailing party all damages that she or he may have sustained as a result of the filing of such notice of claim.

§ 712.08, Fla. Stat. (2015) (emphasis added).

Thus, section 712.08 prohibits false filings by any “person.” It is irrelevant that Appellant was not a homeowners’ association as defined in section 720.301 or a homeowners’ association entitled to enforce use restrictions. As a corporation, Appellant is a “person” under the statute. See § 1.01(3), Fla. Stat. (2015) (“The word ‘person’ includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.”).

Second, and contrary to Appellant’s argument, section 712.08 does not require the filer to intentionally or knowingly file the false or fictitious claim. Rather, the statute’s plain language provides: “[I]f the court shall find that any person has filed a false or fictitious claim, the court may award to the prevailing party all costs incurred by her or him in such action, including a reasonable attorney’s fee ....”§ 712.08, Fla. Stat. (2015).

The statute does not define “false” or “fictitious.” Thus, we turn to a dictionary to ascertain the plain and ordinary meaning of these terms. See L.B. v. State, 700 So.2d 370, 372 (Fla. 1997) (“[A] court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term.”). “False” ordinarily means “not real or genuine,” “not true or accurate; especially: deliberately untrue : done or said to fool or deceive someone,” or “based on mistaken ideas.” False, Merriam-Webster Online Dictionary, http://www.merriam-webster. com/dictionary/false (last visited Dec. 27, 2016). “Fictitious” customarily means “not true or real.” Fictitious, Merriam-Webster Online Dictionary, http://www. merriam-webster.com/dictionary/fictitious (last visited Dec. 27, 2016). Since “false” or “fictitious” includes “mistaken ideas,” as well as “not real or genuine” and “not true or real” claims, section 712.08 provides a remedy in the trial court’s discretion when a claim is filed against another’s property and that claim is later determined to be untrue. It does not require deliberate untruthfulness. Melissa Scaletta, Marketable Record Title Act & Uniform Title Standards, in Fla. Real Prop. Title Examination & Ins. § 2:13 (Fla. Bar 7th ed., 2012) (“Anyone who files a false claim is liable to the owner for costs, attorneys’ fees, and damages sustained by the owner. F.S. 712.08.”). If the Legislature intended the trial court to find that the person intentionally filed a false or fictitious claim, it could have easily required such a finding, as the North Carolina legislature did in its similarly worded statute. Cf. N.C. Gen. Stat. § 47B-6 (2015) (“No person shall use the privilege of registering notices hereunder for the purpose of asserting false or fictitious claims to real property; and in any action relating thereto if the court shall find that any person has intentionally registered a false or fictitious claim, the court may award to the prevailing party all costs incurred by him in such action, including a reasonable attorney’s fee .... ”) (emphasis added). To read the word “intentionally” into the statute would make section 712.08 a penal statute, rather than a remedial statute that provides a remedy to a person who expends attorney’s fees to clear the title of a “false or fictitious claim” on his, her, or its real property. See Adams v. Wright, 403 So.2d 391, 394 (Fla. 1981) (“A remedial statute is ‘designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good.’ It is also defined as ‘(a) statute giving a party a mode of remedy for a wrong, where he had none, or a different one, before.’ ” (quoting Black’s Law Dictionary (5th ed. 1979))).

For these reasons, we affirm that portion of the order awarding the Busches attorney’s fees and costs in the MRTA case as well as costs in the ARD case. However, we reverse only that portion of the order awarding attorney’s fees to the Busches and against Appellant in the ARD case.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

COHEN, C.J., and HODGES, R.W., Associate Judge, concur.

      . Under the Marketable Record Titles Act ("MRTA”), any person with an interest in land may preserve that interest by filing a notice with the clerk of the circuit court. The notice must be filed during the thirty-year period following the effective date of the root of title. § 712.05, Fla. Stat. (2004).


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    DOCTORS COMPANY, Insurer, for Itself and for Annabell Torres, M.D., Appellants, v. Nancy PLUMMER, individually and as Personal Representative of the Estate of William Plummer, and on behalf of B.A.P. and L.J.P., Minors, Appellee.
    Case No. 5D15-1963
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 20, 2017

      Thomas E. Dukes, III and Philip F. Moring, of McEwan, Martinez, & Dukes, P.A., Orlando, and Mark Hicks and Dinah Stein, of Hicks, Porter, Ebenfíeld & Stein, P.A., Miami, for Appellants.
    Bryan S. Gowdy and Jessie L. Harrell, of Creed & Gowdy, P.A., Jacksonville, and Carlos Diez-Arguelles, Maria D. Tejedor, and Jack T. Cook, of Diez-Arguelles & Tejedor, P.A., Orlando, for Appellee.
   EVANDER, J.

Appellants Annabell Torres M.D. (“Dr. Torres”) and her malpractice insurer, Doctors Company, appeal a final judgment entered pursuant to a jury verdict in this wrongful death medical malpractice case. Judgment was entered in favor of Appel-lee, Nancy Plummer, individually, and as personal representative of the estate of William Plummer (“Decedent”). Because Appellee was permitted to present prejudicial, undisclosed expert testimony and because of certain erroneous evidentiary rulings, we are compelled to reverse and remand for a new trial.

On December 4, 2009, Decedent visited the Valentine Family Clinic in DeLand, Florida, complaining of ear pain that had persisted for two weeks. Decedent was seen by Dr. Lee Brown, who diagnosed a bilateral otitis media (a middle ear infection) and “sinusitis chronic with obstruction.” Dr. Brown wrote two prescriptions for Z-Pak antibiotics, and told Decedent to follow-up in two weeks. On December 18, 2009, Decedent returned to the Valentine Family Clinic and was seen by Dr. Torres, a board certified family physician. According to Dr. Torres’ notes, Decedent complained of chronic ear problems that persisted for one month. During this visit, Decedent’s chart failed to reflect that any ear exam took place. Although not reflected in Decedent’s chart, Dr. Torres later testified that it “usually would be within my standard to check into the ears.” Dr. Torres recommended that Decedent take a Medrol Dosepak, a steroid, to aid Decedent’s mild sinusitis. Additionally, Dr. Torres provided Decedent with samples of Levaquin, an antibiotic, given that the Christmas holiday was approaching and as a precaution in case Decedent’s sinusitis worsened over that period of time. At the bottom of the chart, Dr. Torres’ notes reflected instructions that Decedent follow-up in one month.

Decedent returned to the Valentine Family Clinic on February 25, 2010, when he complained of “intense right ear pain.” Dr. Torres examined Decedent’s ear and found a bulging tympanic membrane (ear drum). Dr. Torres diagnosed Decedent with right-ear otitis media once again. Upon her exam, Dr. Torres noted no redness of the ear, no pus in Decedent’s ear canal, nor discharge from the ear. Dr. Torres prescribed Decedent another Z-pak and pain medication. Dr. Torres did not refer Decedent to an ear, nose, and throat doctor for further consultation.

The next morning, on February 26, 2010, Decedent visited Atlantic Ear Nose & Throat, where he was seen by a physician assistant. Decedent complained of a four-month history of a clogged right ear with muffled hearing. The physician assistant noted Decedent had pus in the right ear, fluid behind his eardrum, as well as redness of the eardrum, and diagnosed Decedent with a middle and outer ear infection. The physician assistant advised Decedent to finish the current Z-pak and Medrol Dospak, and prescribed Ciprodex with an instruction to follow-up in ten days. The physician assistant did not note any signs of sinusitis.

Early the next morning, on February 27, 2010, Decedent collapsed at his home and was taken to Florida Hospital in De-Land. A CT scan of Decedent’s brain was ordered, and revealed “effacement of the cerebral hemispheric sulci as well as the basilar cisterns, concerning for cerebral edema.” The CT final report also noted: “Bone detail shows opacification of the right mastoid sinus and right middle ear” and bilateral ethmoid sinus disease (sinusitis). Following Decedent’s admission to the hospital, Dr. Daniel Rothbaum, a physician with Atlantic Ear Nose & Throat, surgically placed a tube in Decedent’s ear to relieve fluid buildup in the ear. Dr. Rothbaum later recalled his belief that Decedent’s ear infection had progressed to an infection of the brain, stating:

This was a patient who, from what I could gather, had had problems with an ear infection and had progressed to what appeared to be an infection of the brain. And so as part of that treatment for that, I thought it was important to try to maximally treat the ear infection, even if I couldn’t treat what was going on in the brain. And so to do that, I decided to try to drain any infection from behind the eardrum. The type of infection we’re talking here is one that’s in what’s called the middle ear, the area between the eardrum and the inner ear.

While completing the surgery, Dr. Rothb-aum observed that Decedent’s eardrum was “a little bit red and that there was fluid behind the eardrum.” Dr. Rothbaum did not recall seeing pus behind the eardrum or an abscess. During the surgery, a culture of the fluid found in Decedent’s ear was taken and revealed strep pneumonia, a bacteria likely resistant to Z-Pak antibiotics. Following the procedure, Dr. Rothb-aum diagnosed Decedent with Eustachian tube dysfunction, acute otitis media (middle ear infection) with meningitis/sepsis, and cerebral edema.

Subsequent to his hospital admission, Decedent stopped breathing and was placed on a ventilator. He ultimately passed away on March 2, 2010. The cause of death was meningitis.

In her initial complaint filed November 8, 2012, Appellee alleged that Dr. Torres breached her duty of care to Decedent by:

a. Negligently obtaining history from [Decedent];
b. Negligently failing to recognize the signs and symptoms of serious head and neck disease including acute and chronic, potentially fulminant otitis media and sinusitis with extension to the meninges and brain, bacterial meningitis and/or other brain infection;
c. Negligently failing to include the diagnosis of bacterial meningitis in the differential diagnosis;
d. Negligently failing to STAT refer [Decedent] to the hospital Emergency Department for complete laboratory evaluation including pan-cultures, CBC, sedimentation rate, imaging studies of the head and neck;
e. Negligently failing to obtain a STAT ENT consult and complete neurological evaluation to rule out serious life threatening disease;
f. Negligently ordering a Z-pak after [Decedent] presented with months of an ear infection and history of using a Z-pak in the past which did not resolve his symptomology.

Notably, the initial complaint did not allege that Dr. Torres was negligent in giving Levaquin samples to Decedent.

Appellee’s primary standard of care experts were Dr. Finley Brown, a family medicine expert, and Dr. Jerrold Dreyer, an infectious disease expert. Their deposition testimony supported the proposition that Dr. Torres breached her duty of care at the December 18, 2009 visit by: (a) misdiagnosing Decedent’s condition; (b) failing to take a complete history from Decedent; (c) failing to perform a proper physical exam of Decedent; (d) failing to culture Decedent’s ears to determine the type of germ he had; (e) failing to treat his ear infection; (f) failing to perform bloodwork; (g) failing to order imaging studies; and (h) failing to send Decedent to an ENT or the emergency room. Significantly, neither, retained expert testified that Dr. Torres had breached her duty of care by providing Levaquin samples to Decedent. Indeed, when asked about Dr. Torres’ decision to provide Decedent with Levaquin samples during the December 18, 2009, visit, Dr. Dreyer testified in his deposition that he did not believe her action was inappropriate.

As to the February 25, 2010, visit, Ap-pellee’s experts opined that Dr. Torres breached her duty of care in: (a) failing to do a culture; (b) failing to order lab work and imaging studies; (c) failing to refer Decedent to the emergency room; and (d) prescribing drugs that had already been proven ineffective for Decedent.

In September 2014, after the depositions of Dr. Brown and Dr. Dreyer had been taken, Appellee moved to amend the complaint. The asserted basis of the motion to amend was to ensure that a jury instruction would be given as to comparative negligence:

The Defendants have pled comparative negligence in this case. They recently withdrew their motion to withdraw their defense. The evidence in this case suggests that the [Decedent] was comparatively negligent.
WHEREFORE, the Plaintiff respectfully requests this court to amend the pleadings and/or to amend the pleadings to conform the evidence and provide a specific jury instruction on comparative negligence.

However, the amended complaint also set forth two additional alleged breaches of Dr. Torres’ duty of care. Specifically, the amended complaint alleged that Dr. Torres had “[negligently failed to record and keep appropriate records,” and had “[n]eg-ligently prescribed medications, such as steroids, which were contraindicated given [Decedent’s] presentation.”

The case proceeded to trial' in April 2015. Prior to trial, Appellee failed to disclose to Dr. Torres’ counsel her intent to present evidence that Dr. Torres’ decision to provide Levaquin to Decedent constituted a breach of her duty of care. Indeed, shortly before trial, Appellee filed a motion in limine to preclude Dr. Torres from presenting any evidence that Levaquin would have cured or eliminated the infection discovered during the December 18, 2009, visit. Appellee argued in her motion that the introduction of such evidence would constitute prejudicial, undisclosed expert testimony:

1. As a threshold matter, not a single witness or expert witness has rendered the opinion, or testified in their deposition that the Levaquin samples provided to WILLIAM PLUMMER on December 18, 2009, cured, eradicated, “killed” or otherwise eliminated the infection that was present on December 18, 2009. It would be improper and highly prejudicial for any witness to introduce this opinion now as it cannot be supported by the available facts. As Defendant’s experts have not rendered this opinion, doing such at trial would constitute a new opinion, and therefore, would be prohibited under Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1980) [sic] and its progeny.
3. Defendant, Defendant’s experts, and Defendant’s counsel have already indicated that they intend to advance a defense that Mr. PLUMMER’S infection on Feburary 25, 2010 (which resulted in his death), was an “acute” infection, and not the same infection Mr. PLUMMER had on December 18, 2009. Plaintiff anticipates that Defendant, Defendant’s experts and/or Defendant’s attorneys will attempt to support this theory by opinion, commenting, inferring and/or otherwise suggesting that Dr. TORRES’ administration of Levaquin samples on December 18, 2009 resulted in eradication and/or elimination of the infection that was present on that date.

During Appellee’s opening statement, Ap-pellee’s counsel advised the jury that Le-vaquin was not an FDA-approved drug for the treatment of ear infection and that Dr. Torres should not have given samples of the drug to Decedent:

But Levaquin is not an FDA approved drug for the treatment of ear infections. So she gives him the wrong drug. And then she gives him the wrong amount and the wrong dose. Because a reasonably careful and prudent doctor documents how much a patient is supposed to take, how often, for how long and how many milligrams. And give the patient the instructions and you document that in the record.
Because you do that so you know whether you gave the right amount, the right dose and the right amount that’s clinically indicated that the manufacturer tells you, this is what you need to give so that you can kill the bug.
If you give too little, you’re not going to kill it. If you give too much, you may make the patient resistant. She doesn’t document the dose, the administration, or how much.

Dr. Torres timely objected and argued that there had been no pretrial expert testimony regarding Levaquin and testimony regarding same would constitute an “unfair surprise” and “a new opinion.” Dr. Torres’ counsel further moved for a mistrial. After the trial court overruled Dr. Torres’ objection and denied her motion for mistrial, Appellee’s counsel went on to advise the jury that Dr. Torres failed to follow the manufacturer’s instructions when she gave Decedent the Levaquin.

So the package insert for Levaquin calls that you got the culture before you give the drug. And the reason for that is because it’s a strong drug. It’s got a lot of risk associated with it.
And it also says that you need to culture because you need to see if it’s the right drug for streptococcus. Because there are many different types of streptococcus and they don’t know if it’s fíne on Levaquin.
The manufacturer says you first culture, and then it will take a day or two to get the results. And when you get the results back, you adjust accordingly.
So the manufacturer—culture first, don’t give the antibiotic unless you culture first. Because if you give the antibiotic and you culture it next, that can give you a false negative.
So you culture first, give—you can give the patient antibiotics for a day or two and you get the cultures back in a day or two and susceptibility testing, you look at it, you say, is it the right antibiotic? Great. Keep them on it. If it’s not, the manufacturer says you’ve got to adjust.
The defendant in this case didn’t follow the manufacturer’s instruction when she gave the Levaquin, and because she gave the Levaquin without doing that, it was the wrong drug. And because it was the wrong drug, it didn’t do anything for the ear infection.

Consistent with counsel’s opening statement, and over Dr. Torres’ continued objection, Appellee’s two standard of care experts testified that Dr. Torres breached her duty by providing Decedent with Le-vaquin.

Dr. Finley Brown explained that Leva-quin became a generic drug in 2005, and that the FDA/manufacturer’s instructions on Levaquin do not indicate that it was intended for the treatment of otitis media or a middle ear infection. He further opined that a family practice physician would have the obligation to refer to, and know about, a prescription drug’s package insert prior to administering that medication. Dr. Brown stated that Levaquin’s package insert mentions obtaining a culture prior to prescribing the drug in order to determine whether an infection is bacterial.

According to the insert, culture and sensitivity testing were needed prior to prescribing Levaquin as a way to “reduce the development of drug-resistant bacteria and maintain the effectiveness of Levaquin and other antibacterial drugs.” Dr. Brown opined that the package insert’s language set the standard for the use of Levaquin and that no cultures or sensitivities were completed on the December 18, 2009, visit. When asked if there was a deviation from the standard of care and a deviation from accepted practice when Dr. Torres provided Decedent with Levaquin samples without taking a culture and susceptibility test, Dr. Brown answered in the affirmative.

Dr. Dreyer similarly testified that the standard of care requires a physician to be familiar with the package insert for any medication he or she prescribes. Pursuant to the insert’s language, Levaquin is not an FDA-approved drug for the treatment of otitis media or ear infections. According to Dr. Dreyer, the insert prescribed the proper dosage of Levaquin needed to treat sinusitis; however, Dr. Torres did not document the dosage she provided to Decedent or how long he was supposed to take the prescription. Such failures, according to Dr. Dreyer, constituted a breach of the standard of care. Dr. Dryer likewise confirmed that the Levaquin package insert recommended that a culture of the infection be performed prior to a physician prescribing the drug.

In closing argument, Appellee’s counsel again emphasized Dr. Torres’ use of Leva-quin and the Levaquin package insert:

Why do we know it’s important to take a culture? Because we saw from the manufacturer’s package insert on Leva-quin it’s not FDA approved for ear infections, but the manufacturer says this is a strong antibiotic. And if you’re going to use this antibiotic, physicians need to culture.
Why do they need to culture? Because culturing will tell you what the bug is. And when you know what the bug is, you can give the right antibiotic because you can’t be giving antibiotics willy-nilly because patients develop a resistance to it.

On appeal, Dr. Torres argues that she was unduly prejudiced by Appellee’s argument and evidence regarding Levaquin. We agree and conclude that the trial court erred in permitting Appellee to argue and present evidence that Dr. Torres breached her duty of care by providing Levaquin samples to Decedent and further erred by allowing the Levaquin package insert to be admitted into evidence.

In Binger v. King Pest Control, 401 So.2d 1810 (Fla. 1981), the Florida Supreme Court established a test that trial courts should employ when determining whether certain undisclosed testimony should be excluded as prejudicial to the opposing party:

[A] trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether the use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice, or similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case .... If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Id. (footnotes omitted). The Binger analysis has subsequently been applied to cases where an expert changes his or her opinion or gives a new opinion, which results in surprise and prejudice to the opposing party. See, e.g., Perryman, M.D. v. Crawford, 968 So.2d 88, 85-86 (Fla. 4th DCA 2007) (“We find it no stretch to conclude that the failure to disclose an expert witness’s opinion in compliance with a pretrial order and a proper discovery request should be analyzed under the principles announced in Binger and is ‘tantamount to permitting an undisclosed adverse witness to testify.’ ”).

Here, the record reflects that Dr. Torres was prejudiced by the surprise testimony and evidence presented at trial regarding Levaquin. Appellee first disclosed its intent to present evidence that Dr. Torres’ provision of Levaquin samples to Decedent constituted a breach of a duty of care during counsel’s opening statement at trial. As a result, Dr. Torres was denied the opportunity to conduct discovery on whether Decedent actually used the Leva-quin and, if so, the amount used, and whether such use would have adversely affected Decedent. Additionally, Dr. Torres was denied the opportunity to discover whether the package insert introduced at trial was authentic. Indeed, Dr. Brown stated that the Levaquin given by Dr. Torres was manufactured by Johnson and Johnson, yet the package insert shown to the jury was from manufacturer Janssen Ortho, LLC. Furthermore, although Dr. Torres testified that she gave the Leva-quin to treat sinusitis rather than an ear infection, her experts were deprived of the opportunity to fully respond to the claim that Levaquin samples should not have been provided to Decedent.

The trial court’s error was compounded by permitting the insert to be admitted into evidence (even assuming its authenticity). Although section 90.706, Florida Statutes (2014), permits statements of facts or opinion on a subject of specialized knowledge contained in a learned treatise, pamphlet, or other writing to be used in cross-examination of an expert witness, it does not permit those statements to be used as substantive evidence. Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So.3d 897, 901 (Fla. 5th DCA 2012). The rationale for this rule is, otherwise, an opposing party would be deprived of the opportunity to cross-examine or impeach the source of the statement of fact or opinion. Id.

Other courts have concluded that although a prescription drug package insert may have some significance in identifying a doctor’s standard of care in the administration and use of a prescription drug, it cannot be used as “stand-alone proof’ of the standard of care. See In re Richardson-Merrell, Inc. Bendectin Prods. Liab. Litig., 624 F.Supp. 1212, 1232 (S.D. Ohio 1985) (holding that drug manufacturer’s warnings are out-of-court statements offered to prove the truth of the matter asserted, therefore inadmissible hearsay); Spensieri v. Lasky, 94 N.Y.2d 231, 701 N.Y.S.2d 689, 723 N.E.2d 544, 548 (1999) (“The [Physicians’ Desk Reference] may have some significance in identifying a doctor’s standard of care in the administration and use of prescription drugs, but is not the sole determinant. ... The testimony of an expert is necessary to interpret whether the drug in question presented an unacceptable risk of the patient in either its administration or the monitoring of its use.”); Saccone v. Gross, 84 A.D.3d 1208, 1209, 923 N.Y.S.2d 878 (NY. App. Div. 2011) (holding that plaintiff was properly precluded from offering information from package insert as republished in Physicians’ Desk Reference into evidence because the proffered evidence constituted inadmissible hearsay).

We also hold that the trial court reversibly erred in excluding the deposition testimony of Dr. Kelley, the emergency room physician who treated Decedent when he arrived at the hospital on February 27, 2010. Dr. Kelley made certain observations of the patient that arguably supported Dr. Torres’ theory of defense. In excluding Dr. Kelley’s deposition, the trial court initially observed that the witness had not been subpoenaed. When Dr. Torres’ counsel appropriately argued that Florida Rule of Civil Procedure 1.330(a)(3)(F) expressly authorizes the use of a deposition by any party for any purpose if the court finds that the witness is an expert or a skilled witness, the trial court inexplicably declined to find Dr. Kelley was a skilled witness.

The trial court erred in declining to find Dr. Kelley was a skilled witness, particularly where it was uncontroverted that Dr. Kelley was a licensed and experienced emergency room physician, who was board certified in emergency medicine. As a result, it was error for the trial court to preclude Dr. Torres’ use of Dr. Kelley’s deposition. See, e.g., Castaneda v. Redlands Christian Migrant Ass’n, 884 So.2d 1087, 1093 (Fla. 4th DCA 2004) (holding that it was error of law for trial court to refuse to permit party to use depositions of opposing party’s employees where use was expressly authorized by Florida Rule of Civil Procedure 1.330). We reject Appellee’s suggestion that the exclusion of Dr. Kelley’s deposition was harmless. Although Dr. Kelley’s records were admitted into evidence, the jury was denied the opportunity to hear her qualifications and any statements made in her deposition that amplified and/or clarified the contents of her records.

We reject, without discussion, Appellants’ other issues raised on appeal.

REVERSED and REMANDED for new trial.

PALMER and BERGER, JJ., concur.

      . It should be noted that a juror specifically posed a question for Dr. Dreyer on the use of Levaquin: "If Levaquin is not for use in the treatment of ear infections, why does the doctor think that Dr. Torres, the ENT and the hospital gave or attempted to give [Decedent] Levaquin?''

      . Of course, the fact that the insert itself might not be admissible into evidence would not preclude an expert from discussing same if facts or data in the insert were "of a type reasonably relied upon by experts in the subject to support the opinion expressed.” See § 90.704, Fla. Stat. (2014).


author: RAY, J.

text:
    Christopher Dangelo WATTS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-1765
    District Court of Appeal of Florida, First District.
    Opinion filed January 23, 2017.
    Rehearing Denied February 28, 2017
    Christopher Dangelo Watts, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   RAY, J.

This petition for writ of habeas corpus alleging ineffective assistance of counsel requires us to examine the limits of appellate counsel’s responsibility to inform the Court of changes in the law that would present meritorious grounds for appeal. Appellate counsel has a duty to stay apprised of legal changes, especially those that are relevant to cases counsel is litigating. This duty is not indefinite, however, and under the particular facts of this case, we conclude that counsel was not ineffective.

Petitioner Christopher Watts was convicted of two counts of armed robbery and one count of sexual battery. He was sentenced to three concurrent terms of life imprisonment as a habitual felony offender, including three consecutive ten-year mandatory mínimums pursuant to section 775.087(2), Florida Statutes. At the sentencing hearing, the trial court concluded that it was required to run the mandatory mínimums consecutively in accordance with that statute. The Florida Supreme Court held otherwise in Williams v. State, 186 So.3d 989 (Fla. 2016), but not until after we had affirmed Watts’s convictions and sentences. Williams was pending at the same time as Watts’s appeal, but the Williams opinion was not released until after opinion and mandate had issued in Watts’s case.

In Watts’s appeal, counsel argued that consecutive mandatory minimum ten-year sentences are not required by section 775.087(2) for crimes committed in a single episode—the ultimate holding in Williams. Watts argues that appellate counsel was ineffective for failing to preserve the issue via the timely filing of a rule 3.800(b)(2) motion, although he concedes that the law in this district at the time of his appeal was that mandatory minimum sentences imposed pursuant to section 775.087(2) were to be imposed consecutively. See Smart v. State, 114 So.3d 1048, 1049 (Fla. 1st DCA 2013) (citing Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013) (en banc)). The State responds that even a timely filed rule 3.800(b)(2) motion would not have garnered Watts relief because Williams was not yet precedent at the time Watts’s appeal was decided.

While it is true that appellate counsel’s failure to preserve a meritorious sentencing issue via the timely filing of a rule 3.800(b)(2) motion may provide a basis for relief via a petition alleging ineffective assistance of appellate counsel, see, e.g., Busbee v. State, 187 So.3d 1266, 1271 (Fla. 1st DCA 2016), the State is correct that preservation of the sentencing issue would likely not have changed the result for Watts because Williams had not yet been decided and the law was otherwise settled in this district.

Generally, the law at the time of briefing controls the determination of whether appellate counsel was ineffective for failing to raise an issue. See Sanders v. Singletary, 707 So.2d 364, 365 (Fla. 1st DCA 1998); Thompson v. Wade, 603 So.2d 28, 29 (Fla. 1st DCA 1992). “Appellate counsel’s perfonnance must be measured in terms of the law in effect at the time of the appeal, and not in hindsight.” Smith v. Crosby, 872 So.2d 279, 281 (Fla. 4th DCA 2004) (citing Knight v. State, 394 So.2d 997, 1003 (Fla. 1981), Sanders v. Singletary, 707 So.2d 364 (Fla. 1st DCA 1998), and Thompson v. Wade, 603 So.2d 28 (Fla. 1st DCA 1992)).

However, under certain circumstances, we have held that appellate counsel was ineffective even after briefing was completed for failing to request supplemental briefing based upon a relevant change in law. See, e.g., Asberry v. State, 32 So.3d 718, 719 (Fla. 1st DCA 2010) (citing Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005)). Further, in Minnich v. State, 130 So.3d 695, 696 (Fla. 1st DCA 2011), we indicated that appellate counsel is under an obligation to file a motion to recall the mandate where a conviction and sentence are not final (for instance, because the appellant has sought supreme court review) when a change in the relevant law occurs and the opportunity to file the motion has not passed. In Minnich, we held that “because petitioner’s conviction was not yet final when this court issued the opinion in Montgomery [v. State, 70 So.3d 603 (Fla. 1st DCA 2009) ], the holding in that case applied to petitioner’s case.” 130 So.3d at 696. This was notwithstanding the fact that Montgomery was decided months after the Minnich opinion issued; because Minnieh had sought supreme court review of this Court’s decision, his conviction and sentence were not final, and Montgomery applied. “Under such circumstances, a motion to recall mandate in his direct appeal would have been appropriate, however, petitioner was unable to file such a motion because this court was no longer in the same term in which the mandate was issued.” Id. (citation omitted). That case was cited with approval in Mendenhall v. State, 82 So.3d 1153, 1154 (Fla. 5th DCA 2012), in similar circumstances. In both of those cases, relief was granted via habeas corpus because the term of court had expired and appellate counsel was not able to fíle a motion to recall mandate. However, both opinions speak to the obligation of appellate counsel to remain diligent and watchful for meaningful changes in the applicable law beyond the moment the initial brief is filed.

In Watts’s case, he did not seek supreme court review. Therefore, unlike Minnich’s, Watts’s convictions and sentences were final before the law in this district changed. Under these particular circumstances, we agree with the State that appellate counsel was not ineffective and Watts is not otherwise entitled to relief in this proceeding. We therefore deny the petition.

PETITION DENIED.

WOLF and MAKAR, JJ., CONCUR.


author: PER CURIAM.

text:
    Jyrone LUMPKIN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3431
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017.
    Candice Brower, General Counsel and Michael J. Titus, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Based on the State’s proper concession of error, we reverse and remand for resen-tencing in accordance with Williams v. State, 186 So.3d 989 (Fla. 2016), which held that consecutive mandatory minimum terms under the 10-20-Life statute are permissible, but not mandatory, where, as here, the defendant shot at multiple victims. In all other respects, we affirm.

AFFIRMED in part; REVERSED and REMANDED in part.

RAY, KELSEY, and WINOKUR, JJ., CONCUR.


author: CASANUEVA, Judge.

text:
    Doris THEWS, Appellant, v. WAL-MART STORES EAST, LP, a Foreign Limited Partnership, and Wesley Patterson, Appellees.
    Case No. 2D15-4208
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017.
    See also 560 FedAppx. 828.

      Billie Jo Belcher and Carolyn M. Sal-zmann of Legally Pink Law, PLLC, Winter Park, for Appellant.
    Thomas A. Valdez, Peter J. Molinelli, and Jeremy J. Jacobs of Quintairos, Prie-to, Wood & Boyer, P.A., Tampa, for Appel-lees.
   CASANUEVA, Judge.

Doris Thews appeals a final order dismissing with prejudice her suit against the Appellees, Wal-Mart Stores East and Wesley Patterson. The trial court dismissed her amended complaint based on the Appellees’ argument that the suit was barred by the doctrine of res judicata. We agree with Ms. Thews that the trial court erred in granting Wal-Mart East’s motion to dismiss with prejudice and reverse that portion of the order. However, we conclude that the trial court correctly dismissed the amended complaint against Mr. Patterson and affirm that portion of the order without discussion.

I. PROCEDURAL HISTORY

Ms. Thews originally sued Wal-Mart Stores, Inc., in the United States District Court in the Middle District of Florida, alleging that she sustained injuries on December 4, 2010, when she was struck by a shopping cart. That lawsuit proceeded to trial, the trial court granted Wal-Mart Stores, Inc.’s motion for judgment as a matter of law, and Ms. Thews’ lawsuit was dismissed. The dismissal of the federal lawsuit was affirmed on appeal. Thews v. Wal-Mart Stores, Inc., 560 Fed.Appx. 828 (11th Cir. 2014), cert. denied, _ U.S. _, 135 S.Ct. 448, 190 L.Ed.2d 830 (2014).

Thereafter, it was discovered that Wal-Mart Stores East, not Wal-Mart Stores, Inc., actually owned the store where the incident occurred. Ms. Thews then filed her present complaint against Wal-Mart Stores East in state court. In lieu of filing an answer and affirmative defenses, Wal-Mart Stores East filed a motion to dismiss based on the doctrine of res judicata. After a hearing, the trial court granted the motion and dismissed the case with prejudice. Ms. Thews appeals that ruling, arguing that the doctrine of res judicata does not preclude her state court action, because Wal-Mart Stores East is a separate and distinct legal entity from Wal-Mart Stores, Inc.

II. RES JUDICATA AS AN AFFIRMATIVE DEFENSE

Affirmative defenses such as res judicata must be typically raised in an answer, not in a motion to dismiss, unless the allegations of the complaint demonstrate that the action is barred by res judicata. Neapolitan Enters. LLC v. City of Naples, 185 So.3d 585, 589 (Fla. 2d DCA 2016). Further, this court reviews an order dismissing a complaint with prejudice using a de novo standard of review, because a motion to dismiss examines the legal sufficiency of the complaint, not factual determinations. Id. In ruling on the motion to dismiss, the trial court was required to accept the allegations of the amended complaint as true and was “limited to considering the four corners of the complaint along with the attachments incorporated into the complaint.” Id. We conclude that the trial court improperly granted the motion to dismiss, because the face of Ms. Thews’ amended complaint does not demonstrate that the action is barred by res judicata.

“The doctrine of res judicata applies when four identities are present: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.” Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004). The factor at issue in the present case is the identity of the parties. “For the purpose of res judicata, identity of parties is satisfied if the parties to the second action were either parties to the first action or in privity with those parties.” Mann v. Palmer, 713 F.3d 1306, 1311 (11th Cir. 2013). A nonparty may be in privity with a party to the prior action if:

(1) the nonparty agreed to be bound by the litigation of others; (2) a substantive legal relationship existed between the person to be bound and a party to the judgment; (3) the nonparty was adequately represented by someone who was a party to the suit; (4) the nonparty assumed control over the litigation in which the judgment was issued; (5) a party attempted to relitigate issues through a proxy; or (6) a statutory scheme foreclosed successive litigation by nonlitigants.

Griswold v. Cty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010).

Wal-Mart Stores East argues on appeal, as it did in the motion to dismiss, that it was in privity to Wal-Mart Stores, Inc., because it agreed to be bound by the federal litigation, a substantive legal relationship existed between the two corporations, and Wal-Mart Stores East was adequately represented by Wal-Mart Stores, Inc., in the federal action. We conclude that, although one or all of these factors may eventually be established, they were not established by the four corners of the amended complaint. We also note that there was no evidence presented by either party at the hearing on the motion to dismiss. Because the face of the complaint does not demonstrate that the action is barred by res judicata, the defense should have been raised in an answer to the complaint, not in a motion to dismiss. See Neapolitan Enters., 185 So.3d at 589.

III. FRAUD ■

Ms. Thews also argues that the doctrine of res judicata does not apply to the present case because the omission of Wal-Mart Stores East from the prior litigation was caused by fraud on the part of Wal-Mart Stores, Inc. We do not find merit in this argument because, as noted above, no evidence was presented at the hearing on the motion to dismiss. Therefore, there is no evidence at this point in the proceedings to support the argument that either Wal-Mart Stores, Inc., or Wal-Mart Stores East committed fraud.

IV. CONCLUSION

Accordingly, we reverse that portion of the order granting the motion to dismiss against Wal-Mart Stores East and affirm that portion of the order as it pertains to Mr. Patterson.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . Apparently, Wal-Mart Stores, Inc., never asserted in the federal proceedings that it did not own the store at issue.


author: WALLACE, Judge.

text:
    Lane A. HOUK, Appellant, v. PENNYMAC CORP., substituted as party plaintiff for CitiMortgage, Inc.; Shannon Houk; Belle Meade Owners Association, Inc., and Mortgage Electronic Registration Systems, Inc., Appellees.
    Case No. 2D15-2583
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017.

      Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant.
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller and Marc J. Gottlieb of Akerman LLP, Fort Lauder-dale; and Kathryn B. Hoeck of Akerman LLP, Orlando, for Appellee, PennyMac Corp.
    No appearance for remaining Appellees.
   WALLACE, Judge.

Lane A. Houk challenges a final summary judgment of foreclosure entered in favor of PennyMac Corp., an entity that was substituted as the party plaintiff in place of CitiMortgage, Inc., during the pendency of the litigation in the circuit court. Because a genuine issue of material fact exists regarding PennyMac’s standing to foreclose, we reverse.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On September 27, 2005, Mr. Houk executed a note for $584,800 in favor of Cherry Creek Mortgage Co., Inc. Mr. Houk and his wife executed a mortgage on real property in Lee County to secure payment of the note on the same day. A stamp with a signature appearing on a copy of the note indicates that Cherry Creek indorsed the note to the order of CitiMortgage.

On January 11, 2008, CitiMortgage filed a two-count complaint against Mr. and Mrs. Houk and other defendants. Count I of the complaint sought the foreclosure of the note and mortgage. Count II requested the reestablishment of the note that CitiMortgage alleged had been lost. In an affidavit of lost note that was subsequently filed in the case, a document control officer for CitiMortgage stated that the note had been lost or destroyed while it was in the possession of the law firm that was responsible for filing the foreclosure action.

On May 20, 2013, CitiMortgage filed an unsworn motion to substitute party plaintiff seeking the substitution of PennyMac as plaintiff. The motion stated, in pertinent part: “Subsequent to the filing of the present action, the underlying note and mortgage were transferred.” A copy of a recorded assignment of mortgage from Ci-tiMortgage to PennyMac was attached to the motion. The circuit court entered an order granting the motion on the same day that it was filed.

After the entry of the order of substitution, PennyMac filed a second amended verified complaint seeking both foreclosure and reestablishment of the lost note. In Count I, PennyMac alleged, in pertinent part:

4. CitiMortgage, Inc. subsequently transferred all rights in the note and mortgage to PennyMac Corp.
5,’ PennyMac Corp. is entitled to enforce the mortgage and mortgage note pursuant to Florida Statutes § 673.3011(3) as a person not in possession of the instrument who is entitled to enforce the instrument. PennyMac Corp. is entitled to enforce the instrument, but has lost'the Mortgage Note pursuant to Florida Statutes § 673.3091.

In paragraph 25 of Count II, PennyMac alleged, in pertinent part: “Plaintiff was in possession of the Note and entitled to enforce it when loss of possession occurred or Plaintiff has been assigned the right to enforce the Note.”

Mr. Houk filed an answer to the second amended complaint. In his answer, Mr. Houk generally denied the material allegations of the complaint. He also raised ten affirmative defenses, including the defense that PennyMac lacked standing and that CitiMortgage lacked standing to enforce the note when it filed the action.

PennyMac filed a motion for summary judgment with supporting affidavits. It subsequently filed an amended motion for summary judgment. In its motion, Penny-Mac sought both foreclosure of the mortgage and reestablishment of the note. On February 25, 2015, the circuit court held a hearing on the amended motion for summary judgment. There is no transcript of this hearing, and the parties have not prepared a statement of the proceedings in accordance with Florida Rule of Appellate Procedure 9.200(b)(4). At the conclusion of the hearing, the circuit court entered a final judgment of foreclosure. Strangely, the final judgment does not include a provision reestablishing the lost note. Mr. Houk filed a motion for rehearing that was denied. This appeal followed.

II. THE ISSUES ON APPEAL

On appeal, Mr. Houk raises two issues. First, he argues that the circuit court erred in entering the summary judgment because PennyMac failed to refute his affirmative defenses in its amended motion for summary judgment. Second, Mr. Houk contends that the entry of the summary judgment was error because PennyMac failed to establish its standing to foreclose. We need address only Mr. Houk’s second issue.

III. THE APPLICABLE LAW

Before considering the parties’ arguments regarding the issue of standing, it is appropriate to review what PennyMac was required to demonstrate in order to establish its entitlement to enforce the note. PennyMac had to establish that Citi-Mortgage had standing when the complaint was filed and its own standing when the final judgment was entered. See Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1040 (Fla. 4th DCA 2015). Section 673.3011, Florida Statutes (2012), addresses the question of how one may qualify as a person entitled to enforce an instrument:

The term “person entitled to enforce” an instrument means:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the rights of a holder; or
(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).
A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

In this case, PennyMac’s claim was that the note had been lost after it had been indorsed by Cherry Creek to the order of CitiMortgage. Therefore, PennyMac had to satisfy the requirements outlined in section 673.3091 in order to prevail. See Federal Nat’l Mortg. Ass’n v. McFadyen, 194 So.3d 418, 420 (Fla. 3d DCA 2016).

Section 673.3091 provides, in pertinent part, as follows:

(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument, If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument.

It was CitiMortgage—not PennyMac— that was entitled to enforce the note when it was lost. Therefore, PennyMac had to establish that it had directly or indirectly acquired ownership of the note from Citi-Mortgage. See § 673.3091(1).

In the Lamb case, the Fourth District outlined what a substituted plaintiff seeking to enforce an instrument indorsed to the original plaintiff must establish as follows:

“When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person.” § 673.2051(1), Fla. Stat. (2013). Where a bank is seeking to enforce a note which is specially indorsed to another, it may prove standing ‘through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.’ ” Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013) (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 939 (Fla. 2d DCA 2010)); see also Hunter v. Aurora Loan Servs., LLC, 137 So.3d 570, 573 (Fla. 1st DCA), review denied, 157 So.3d 1040 (Fla. 2014); Dixon [v. Express Equity Lending Grp., LLLP], 125 So.3d [965, 967 (Fla. 4th DCA 2013) ] (“ ‘[T]he plaintiff must submit the note bearing a special [[Indorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note.’ ”) (quoting Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012)). “A witness who testifies at trial as to the date a bank became the owner of the note can serve the same purpose as an affidavit of ownership.” Sosa v. U.S. Bank Nat’l Ass’n, 153 So.3d 950, 951 (Fla. 4th DCA 2014).

Lamb, 174 So.3d at 1040-41. With these principles in mind, we turn to the parties’ arguments about whether PennyMac established the nonexistence of a material fact about its entitlement to enforce the note.

IV. DISCUSSION

A. Introduction

Mr. Houk concedes that the affidavit of lost note with the copy of the note attached was sufficient to establish Citi-Mortgage’s entitlement to enforce the note when the complaint was filed. Instead, Mr. Houk contends that PennyMac failed to establish its entitlement to enforce the note at the time of the entry of the summary judgment of foreclosure. In response to Mr. Houk’s challenge to its entitlement to enforce the note, PennyMac raises five arguments. First, the absence of a transcript of the hearing on the motion for summary judgment “demands affirmance.” Second, the order substituting PennyMac as the party plaintiff was sufficient to give it standing to enforce the lost note. Third, the assignment of mortgage was sufficient to establish its standing to foreclose. Fourth, the allegations of the motion to substitute and the verified second amended complaint were sufficient to establish its entitlement to enforce the lost note. Finally, PennyMac had standing to foreclose as the servicer of the loan. We will consider PennyMac’s arguments separately below.

B. The Absence of a Transcript

PennyMac correctly notes that the record on appeal does not include a transcript of the hearing on the amended motion for summary judgment or a statement of the proceedings prepared in accordance with Florida Rule of Appellate Procedure 9.200(b)(4). “However, hearing transcripts ordinarily are not necessary for appellate review of a summary judgment.” Shahar v. Green Tree Servicing LLC, 125 So.3d 251, 254 (Fla. 4th DCA 2013). We join the Fourth District in agreeing with the Third District, which has addressed this question as follows:

It is the burden of the appellant to bring up a proper record for consideration of the issues presented on appeal. Where the appeal is from a summary judgment, the appellant must bring up the summary judgment record, that is, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion. Those are the portions of the record essential to a determination whether summary judgment was properly entered. However, the hearing on a motion for summary judgment consists of the legal argument of counsel, not the taking of evidence. Consequently, it is not necessary to procure a transcript of the summary judgment hearing, although it is permissible and often helpful to do so.

Seal Prods. v. Mansfield, 705 So.2d 973, 975 (Fla. 3d DCA 1998) (citations omitted); see also Inglis v. Casselberry, 200 So.3d 206, 212 (Fla. 2d DCA 2016) (citing Mansfield for the foregoing proposition with approval).

In this case, the record includes the operative complaint, Mr. Houk’s answer and affirmative defenses, the motion and the order for substitution of the plaintiff, the amended motion for summary judgment, and the supporting and opposing affidavits, including the affidavit of lost note. Thus we have all of the portions of the record necessary for us to determine whether the summary judgment was properly entered. Under these circumstances, a transcript of the hearing on the motion for summary judgment is not critical to a determination of this appeal.

C. The Sufficiency of the Order of Substitution

PennyMac asserts that it “became entitled to enforce the lost note when it was substituted as party plaintiff.” According to PennyMac, its standing derives from CitiMortgage, the holder of the note when it was lost or destroyed.

Mr. Houk concedes that CitiMortgage had standing to enforce the note when it filed the original complaint. But PennyMac also had to establish its standing to enforce the note at the time of the entry of judgment. See Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015). Here, the lost note had been specially indorsed to CitiMortgage. In order to establish its entitlement to enforce the lost note, PennyMac could establish standing “through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.” BAC Funding Consortium, 28 So.3d at 939. PennyMac’s filings in support of its motion for summary judgment did not present evidence of any of these things. In the absence of such evidence, the order of substitution standing alone was ineffective to establish PennyMac’s entitlement to enforce the lost note. See Geweye v. Ventures Trust 2013-I-H-R, 189 So.3d 231, 233 (Fla. 2d DCA 2016); Creadon v. U.S. Bank, N.A., 166 So.3d 952, 953-54 (Fla. 2d DCA 2015); Sandefur v. RVS Capital, LLC, 183 So.3d 1258, 1260 (Fla. 4th DCA 2016); Lamb, 174 So.3d at 1040-41.

In support of its argument that it has standing to enforce the lost note derived from CitiMortgage through the order of substitution, PennyMac relies on the decision in Brandenburg v. Residential Credit Solutions, Inc., 137 So.3d 604 (Fla. 4th DCA 2014). We find the decision in Brandenburg to be distinguishable because its facts are substantially different from the facts in this case. In Brandenburg, the Fourth District affirmed a final judgment of foreclosure in favor of Residential Credit Solutions, Inc. (RTS). Id. at 606,. The original plaintiff in the action and prior holder of the note was Amtrust Bank (Am-trust). Id. at 605. During the course of the litigation, RTS was substituted as the party plaintiff in place of Amtrust. Id. The issue before the Fourth District in Brandenburg was whether Amtrust had standing at the inception of the foreclosure action. Id The Fourth District concluded that the evidence established that Amtrust had standing to foreclose when it filed the complaint. Id at 605-06. In affirming the final summary judgment of foreclosure, the Fourth District specifically noted that RTS had standing because it had “acquired the note and mortgage from the prior holder.” Id. at 605. In Brandenburg, it was RTS’s acquisition of the note and mortgage from the prior holder—coupled with the order substituting it as party plaintiff—that enabled RTS to pursue the foreclosure to judgment. In the case before us, PennyMac failed to make a sufficient showing that it had acquired the note from the prior holder, CitiMortgage. Thus, unlike in Brandenburg, the order of substitution was unavailing to give PennyMac standing to enforce the note. It follows that PennyMac’s reliance on Brandenburg is misplaced.

D. The Assignment of Mortgage

PennyMac relies on the copy of the recorded assignment of mortgage that was attached to its motion to substitute plaintiff as being sufficient to establish its standing. According to PennyMac, “[t]he assignment of mortgage showed the mortgage was assigned ‘with all rights due or to become due thereon.’ This would include monies owed on the note. See § 701.01, Fla. Stat. [ (2012) ].” This argument falls short of the mark for several reasons.

First, the assignment transferred only the mortgage, not the note. “The mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment -of the debt creates no right in the assignee.” Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (citing Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So.3d 1130, 1133 (Fla. 4th DCA 2014)). PennyMac did not acquire standing to foreclose based on an assignment of only the mortgage. See Eaddy v. Bank of America, N.A., 197 So.3d 1278, 1280 (Fla. 2d DCA 2016); Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So.3d 1044, 1046 (Fla. 2d DCA 2016); Geweye, 189 So.3d at 233; Lamb, 174 So.3d at 1041.

Second, the only evidence of the assignment of the mortgage was the copy attached to the unsworn motion for substitution. Mr. Houk’s pleadings did not admit the genuineness of the assignment. The copy of the assignment was not a certified copy, and none of the affidavits filed by PennyMac attested to the authenticity of the document. “Merely attaching documents which are not ‘sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in [Florida Rule of Civil Procedure] 1.510(e).” Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997). In the absence of an admission or appropriate proof of the authenticity of the assignment, it could not properly be considered as evidence in support of PennyMac’s amended motion for summary judgment. See DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438, 439-40 (Fla. 2d DCA 2013); Bryson v. Branch Banking & Trust Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011); Toyos v. Helm Bank, USA, 187 So.3d 1287, 1290 (Fla. 4th DCA 2016); Rodriguez v. Tri-Square Const., Inc., 635 So.2d 125, 126-27 (Fla. 3d DCA 1994).

E. The Motion to Substitute and the Verified Complaint

PennyMac points out that “[b]oth the motion to substitute plaintiff and the veri-fíed [second] amended complaint stated Ci-tiMortgage transferred its interest in the note and mortgage to PennyMae.” Penny-Mac contends that the allegations in these papers were sufficient to establish its entitlement to enforce the lost note. We disagree for several reasons.

First, the motion to substitute was unsworn. Therefore, it was plainly insufficient as a basis for supporting a motion for summary judgment. See Fla. R. Civ. P. 1.510(e). However, PennyMac’s second amended complaint was verified. With regard to the sufficiency of a verified complaint to support a motion for summary judgment, this court has said:

We acknowledge that “[a] verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment.” “However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits.” Rule 1.510(e), in turn, provides that affidavits must be based on personal knowledge and shall “show affirmatively that the affiant is competent to testify to the matters stated therein.” A verification which is improperly based on information and belief is insufficient to entitle the verifying party to relief because the verification is qualified in nature.

Ballinger v. Bay Gulf Credit Union, 51 So.3d 528, 529 (Fla. 2d DCA 2010) (citations omitted). In this case, the verification of the complaint in accordance with Florida Rule of Civil Procedure 1.110(b) stated: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.” Where, as in this case, a verification of a complaint is based on knowledge and belief and fails to show that the affiant had personal knowledge of the matters stated in the complaint, the trial court cannot consider the verified complaint as a basis for the entry of summary judgment. See Ballinger, 51 So.3d at 530; Colon v. JP Morgan Chase Bank, N.A., 162 So.3d.195, 199 (Fla. 5th DCA 2015); see also Lindgren v. Deutsche Bank Nat’l Trust Co., 115 So.3d 1076, 1076 (Fla. 4th DCA 2013) (finding a verification based on “information and belief’ to be insufficient for purposes, of summary judgment).

Second, the allegations of the second amended complaint regarding PennyMac’s standing to enforce the note were conclu-sory in nature. The pertinent allegations did not state any facts regarding Penny-Mac’s claim that CitiMortgage had “transferred all rights in the note and mortgage to PennyMae Corp.” This conclusory statement was insufficient to sustain Penny-Mac’s burden for summary judgment. See Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So.2d 978, 980 (Fla. 2d DCA 2001) (holding that an affidavit containing “only conclusory statements of ultimate fact [was] insufficient to sustain the movant’s burden of demonstrating the absence of any genuine issue of material fact”); Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 1039, 1041 (Fla. 3d DCA 1981) (stating that general statements in an affidavit, which are framed only in conclusions of law, do not satisfy the movant’s burden on a motion for summary judgment).

Third, the allegations of the second amended complaint regarding PennyMac’s claim to entitlement to enforce the note are in hopeless conflict with one of the affidavits that PennyMae itself filed in support of its amended motion for summary judgment. PennyMae filed an Affidavit of Indebtedness sworn to by a “default specialist” for PennyMae Loan Services, LLC, the alleged servicer of the loan for Penny-Mac. In this affidavit, the default specialist stated that PennyMac “is the holder of said Note and Mortgage.” Thus Penny-Mac’s own affidavit undercut and contradicted the theory advanced in the complaint that it qualified under section 673.3011(3) as a person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 673.3091. Unquestionably, PennyMac could not meet its burden to establish the nonexistence of a material fact regarding its standing when the affidavit that it filed in support of its motion was in express and irreconcilable conflict with the theory of standing alleged in its operative complaint.

F. Standing as the Loan Servicer

Finally, PennyMac asserts that it “had standing as the loan servicer.” This argument is without merit. We recognize that “[a] servicer that is not the holder of the note may have standing to commence a foreclosure action on behalf of the real party in interest, but it must present evidence, such as an affidavit or a pooling and servicing agreement, demonstrating that the real party in interest granted the ser-vicer authority to enforce the note.” Rodriguez v. Wells Fargo Bank, N.A., 178 So.3d 62, 63 (Fla. 4th DCA 2015) (citing Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So.3d 14, 17 (Fla. 4th DCA 2012)). But in this case, two of the affidavits filed in support of the amended motion for summary judgment recite that the ser-vicer for Mr. Houk’s loan is PennyMac Loan Services, LLC, not the plaintiff, Pen-nyMac Corp. In making the argument about its purported standing as the loan servicer, PennyMac seems to have forgotten or ignored its own affidavits.

V. CONCLUSION

For the foregoing reasons, PennyMac failed to meet its burden of showing the nonexistence of a genuine issue of material fact regarding its entitlement to enforce the lost note. Accordingly, we reverse the final summary judgment of foreclosure and remand this case to the circuit court for further proceedings.

Reversed and remanded.

MORRIS and ROTHSTEIN-YOUAKIM, JJ„ Concur.

      . Counsel for PennyMac had no involvement in the loss of the note.

      . Because the note had been lost long before the alleged transfer from CitiMortgage, it would be a physical impossibility for Penny-Mac to be a holder of the note. " ‘Holder’ means: (a) The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession. ...” § 671.201(21)(a), Fla. Stat. (2012). "To hold a note under the Uniform Commercial Code ordinarily connotes possession of the document itself.” Phan v. Deutsche Bank Nat'l Trust Co., ex rel. First Franklin Mortg. Loan Trust 2006-FF11, 198 So.3d 744, 747 (Fla. 2d DCA 2016).


author: LaROSE, Judge.

text:
    IN the INTEREST OF A.F., a child. S.P.R., Appellant, v. Department of Children and Families and Guardian ad litem Program, Appellees. In the Interest of A.F., a child. B.F., Appellant, v. Department of Children and Families and Guardian ad litem Program, Appellees.
    Case Nos. 2D16-3011, 2D16-3394
    District Court of Appeal of Florida, Second District.
    Opinion filed February 10, 2017.

      Toni A. Butler of Alderuccio & Butler, LLC, Naples, for S.P.R.; and Valerie Lin-nen, Atlantic Beach, for B.F.
    Meredith K. Hall, Bradenton, for Appel-lee Department of Children and Families.
    Sara E. Goldfarb, Sanford, for Appellee Guardian ad Litem Program.
   LaROSE, Judge.

S.P.R. and B.F. (the parents) appeal the denial of their motions alleging ineffective assistance of counsel at the trial of the Department of Children and Families’ petition to terminate their parental rights to their infant daughter. The parents filed timely motions, which were deemed denied after the trial court failed to dispose of the motions within twenty-five days after filing. J.B. v. Fla. Dep’t of Children & Families, 170 So.3d 780, 794-795 (Fla. 2015). We affirm the denial of relief.

The Department presented uncontested evidence that between the ages of two and five months, the infant suffered fourteen fractures to fourteen different bones. When these injuries were discovered, they were at different stages of healing, demonstrating that they did not occur in a single traumatic event. The child had never been to daycare and never had a babysitter. Yet, the parents provided conflicting explanations for the cause of the fractures.

We have reviewed carefully the records on appeal. Based on the standard established by the supreme court in J.B., we conclude that trial counsel’s alleged deficiencies did not “so prejudice[ ] the outcome of the TPR proceeding that but for counsel’s deficient representation the parent’s rights would not have been terminated.” Id. at 792-93. Accordingly, we affirm the order terminating the parents’ rights to their daughter and the disposition of the motions alleging ineffective assistance of counsel.

Affirmed.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . We have consolidated these appeals.

      . The supreme court is in the process of adopting a rule of procedure for bringing and resolving claims of ineffective assistance of counsel in termination of parental rights cases. See Joint Report of the Select Committee on Claims of Ineffective Assistance of Counsel in the Termination of Parental Rights Proceedings, In re Amendments to Florida Rules of Juvenile Procedure and Florida Rule of Appellate Procedure 9.146, No. SC16-553 (Fla. Mar. 31, 2016).


text:
    Kenneth A. TONG, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-810
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Appellant challenges his judgments and sentences in St. Johns County Circuit Court case numbers 2015-CF-324 and 2015-CF-547. We affirm the judgments and sentences but remand the case to correct a scrivener’s error. Appellant pled no contest, but the amended judgments in both cases, and the amended order of drug offender probation in case number 2015-CF-324, indicate that he entered a plea of guilty. Therefore, we remand the case to the trial judge to correct the judgments in both cases and the order of probation in case number 2015-CF-324 to reflect Appellant’s no contest pleas.

AFFIRMED AND REMANDED WITH DIRECTIONS.

WALLIS, and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    George RAY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-0187
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    Leon B. Cheek, III, Assistant Regional Counsel, Office of Regional Criminal Conflict & Civil Regional Counsel, 5th District, Casselberry, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 23, 2016 judgment and sentence in Case No. 2016-CF-1654-B, in the Circuit Court in and for Seminole County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., and BERGER, J., and JACOBUS, B.W., Senior Judge, concur.


text:
    Anthony Ditaniel GREEN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4462
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    Anthony Ditaniel Green, Milton, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 28, 2015, judgment and sentence in Case No. 2014-CF-17231-A-0 in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER and LAMBERT, JJ., concur.


text:
    Bruce UNDERHILL, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4447
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    Bruce Underhill, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the December 17, 2014, judgment and sentence in Case No. 2012-CF-009721, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA and EVANDER, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Richard V. FLETCHER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D16-4306
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    Richard V. Fletcher, Clermont, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 23, 2015, order denying Petitioner’s pro se motion for posteonviction relief, filed in Case No. 2009-CF-2479-A, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER, and EDWARDS, JJ., concur.


text:
    Kandice DINGEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3326
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017
    Kandice Dingey, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant appeals the order summarily denying her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, she alleged two grounds of ineffective assistance of counsel. The trial court properly addressed claim one but did not address the second claim. The second claim alleges that Appellant’s attorney was ineffective for failing to move to suppress her confession based on the argument that she was too intoxicated to waive her constitutional rights properly.

We affirm as to claim one. Because the trial court failed to address claim two, we reverse that part of the order summarily denying that claim and remand this case for attachment of the record that refutes the claim or for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, BERGER, and WALLIS, JJ., concur.


text:
    Armen J. PILAFJIAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-4057
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 10, 2017

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Armen Pilafjian appeals following his conviction for burglary of an occupied dwelling. Pilafjian correctly asserts that the trial court erred in denying a requested jury instruction. We therefore reverse.

Pilafjian was previously arrested on allegations of domestic violence against his former girlfriend Anne Minetti. As a condition of his release, he signed a “domestic violence pretrial release no contact order.” Despite the no contact order, Pilafjian located Minetti at the residence of Cary Sparks and went there to confront her. Pilafjian entered Sparks’s residence, without invitation and without knocking, and grabbed Minetti by the arm. Although the circumstances would seem to indicate an unwelcome entry, Sparks testified at trial that it was “fine” for Pilafjian to be in the residence on the day in question, and that other than Pilafjian’s encounter with Mi-netti that day, Pilafjian “was always welcomed at [his] house.” Sparks also testified that when Pilafjian started to argue with Minetti, he asked Pilafjian to leave, but Pilafjian refused. Sparks further testified that Pilafjian threatened Minetti and stated that “if he had to come back and get her that he would kill her.”

Pilafjian does not dispute that he battered Minetti or that he violated the no contact order. Pilafjian argues instead that he cannot be convicted of burglary because he had permission to be at Sparks’s residence on the day in question. He contends that the trial court erred in failing to give a requested jury instruction on the issue of licensed or invited entry, which he sought to establish as an affirmative defense to the burglary charge. We review the failure to give a jury instruction for an abuse of discretion, although that discretion is limited in criminal cases. See Wagers v. State, 199 So.3d 1116, 1117 (Fla. 5th DCA 2016).

Burglary is defined as entering a dwelling, structure, or conveyance with the intent to commit an offense “unless the premises are at the time open to the public or the defendant is licensed or invited to enter.” See § 810.02(l)(b), Fla. Stat. (2015). Licensed or invited entry into the dwelling or structure is an affirmative defense to a burglary charge. See State v. Hicks, 421 So.2d 510, 510-11 (Fla. 1982); see also § 810.015, Fla. Stat. (2015). If a defendant meets his burden of production, he or she is entitled to have the jury instructed on the affirmative defense. See Fla. Std. Jury Instr. (Crim.) 13.1; In re Standard Jury Instructions in Criminal Cases-Report No. 2014-08, 176 So.3d 938, 945-46 (Fla. 2015). The instruction requires the jury, in order to convict a defendant of burglary, to find that the defendant was not invited or licensed to enter the premises. See Fla. Std. Jury Instr. (Crim.) 13.1; In re Standard Jury Instructions, 176 So.3d at 945-46.

To establish license or invitation, a defendant may demonstrate that “(1) the premises were open to the public, (2) the defendant was a licensee, or (3) the defendant was an invitee.” Delgado v. State, 776 So.2d 233, 236 (Fla. 2000). As long as there is any evidence on the issue of consensual entry, upon request, the trial court must instruct the jury accordingly. Cf. Bryant v. State, 102 So.3d 704, 707 (Fla. 1st DCA 2012) (noting that if there is any evidence of invited or licensed entry presented, defendant is entitled to have the jury instructed on the defense, and “matters of weight and credibility are solely for the jury, not the judge”); see also Valls v. State, 159 So.3d 234, 238 (Fla. 3d DCA 2015).

Sparks’s testimony provided sufficient evidence to warrant the requested jury instruction on the issue of license or invitation to enter the premises. He testified that it was “fine” for Pilafjian to be in his residence and that Pilafjian was “always welcomed” at his house. Because there was some evidence supporting the affirmative defense, the question of whether Pilafjian was licensed or invited to enter Sparks’s residence was a jury question. Cf. Bryant, 102 So.3d at 705, 707. Thus, the trial court abused its discretion in denying the requested instruction on the affirmative defense.

We therefore vacate Pilafjian’s conviction for burglary and remand for a new trial. We affirm Pilafjian’s convictions for the misdemeanor charges of battery and violation of a pretrial release condition.

AFFIRMED IN PART; VACATED IN PART; and REMANDED.

COHEN, C.J., PALMER and WALLIS, JJ., concur.

      . Pilafjian was also convicted of battery and violating a pretrial release condition. However, he does not challenge those convictions, and we affirm as to those two charges.

      . Because we find the issue of licensed or invited entry dispositive, we decline to address Pilafjian’s alternative contention that the trial court erred in failing to instruct the jury under a theory of "remaining in." See § 810.02(l)(b), Fla. Stat. (2015); In re Standard Jury Instructions in Criminal Cases-Report No. 2014-08, 176 So.3d 938, 945-46 (Fla. 2015).

      . Pilafjian also asserts that the trial court erred in denying his motion for judgment of acquittal. However, conflicting evidence was presented at trial, and the State presented evidence on each element of the burglary charge. There was sufficient evidence from which the jury could conclude that a conviction for burglary was warranted; thus, the motion for judgment of acquittal was properly denied. Cf. Jones v. State, 790 So.2d 1194, 1198 (Fla. 1st DCA 2001) (finding trial court properly denied motion for judgment of acquittal because although some evidence supported inference that defendant had consent to enter residence, victim’s testimony that she did not invite defendant to residence was sufficient to rebut that defense to burglary).