author: EVANDER, J.

text:
    Sandra Anderson NUNEZ-MILLER, Appellant, v. Terrence MILLER, Appellee.
    Case No. 5D16-356
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 13, 2017

      Delaila Estefano, Coral Gables, for Appellant,
    Shannon L. Akins, of Law Offices of Shannon L. Akins, P.A., Orlando, and Lauren Roderick Brusca, of The Roberts Family Law Firm, P.A., Orlando, for Appellee.
   EVANDER, J.

Sandra Anderson Nunez-Miller (“Former Wife”) appeals the trial court’s non-final order denying her Motion to Transfer Case to Miami-Dade County, Florida for Improper Venue and Pursuant to Florida’s Forum Non Conveniens Statute. We need not address Former Wife’s forum non con-veniens argument because we hold that the trial court should have dismissed Terrence Miller’s (“Former Husband”) Verified Petition to Register a Foreign Decree Order in Florida and his Amended Supplemental Petition to Modify Final Judgment of Dissolution of Marriage for improper venue.

The parties were married in Miami on May 28, 2005. They lived in Miami until December 21, 2006, at which time they moved to Germany. The parties separated while living in Germany. Former Husband relocated to Seminole County and Former-Wife subsequently relocated to Miami-Dade County. Prior to relocating to the United States, Former Wife obtained a final judgment of dissolution of marriage in Germany on December 18, 2014. The final judgment awarded her “sole parental custody” of the parties’ minor child.

On January 16, 2015, Former Husband filed a petition for dissolution of marriage in Seminole County. On that same date, he also filed, ex parte, his Emergency Verified Motion for Majority Time-Sharing, to Suspend or Restrict Respondent’s Time-Sharing, for Sole Parental Responsibility Including School Designation, and Revocation of the Minor Child’s Passport and his Emergency Motion for Child Pick-Up Order. Pursuant to the subsequently entered ex parte emergency pick-up order, the minor child was removed from Former Wife’s custody in Miami-Dade County and placed with Former Husband in Seminole County. Former Wife immediately filed her own emergency motion to have the child placed back in her custody.

On January 26, 2015, the parties tentatively resolved their competing emergency motions by entering a stipulation providing for a temporary time-sharing arrangement. On that same date, Former Husband also filed his Verified Petition to Register a Foreign Decree Order in Florida and his Amended Supplemental Petition to Modify Final Judgment of Dissolution of Marriage. In response, Former Wife subsequently filed her motion to transfer the case to Miami-Dade County, as well as her affidavit in support thereof. After a non-evidentiary hearing, the trial court denied Former Wife’s motion.

Section 47.011, Florida Statutes (2015) applies to actions to establish a foreign divorce decree as a Florida judgment. See Ruscoe v. Ruscoe, 327 So.2d 93, 94 (Fla. 4th DCA 1976). That statute provides that “[ajctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” § 47.011, Fla. Stat. (2015). Accordingly, Florida courts have determined that an action to establish a foreign divorce decree as a Florida judgment is to be filed in the county where the responding party resides. See McIntire v. McIntire, 352 So.2d 142, 143 (Fla. 1st DCA 1977) (“[W]hen a complaint to establish a foreign decree is brought, F.S. 47.011 controls and the action should be brought in the county where the responding party resides.”); Ruscoe, 327 So.2d at 94 (holding that in action to establish foreign divorce decree as Florida judgment, the only venue alternative under section 47.011 was county where respondent resided). Because Former Wife resides in Miami-Dade County, that county was the proper venue for Former Husband’s petition to register a foreign decree order in Florida.

Furthermore, pursuant to section 61.13(2)(d), Florida Statutes (2015), the proper venue in Florida for Former Husband’s Amended Supplemental Petition to Modify Final Judgment of Dissolution of Marriage was in Miami-Dade County. Section 61.13(2)(d) provides that the proper venue for an action to modify a parenting plan is “[t]he circuit court in the county in which either parent and the child reside or the circuit court in which the original order approving or creating the parenting plan was entered.” Here, the original parenting plan was entered by a German court and the minor child resides with Former Wife in Miami-Dade County.

Finally, we reject Former Husband’s suggestion that Former Wife waived her venue argument by failing to raise a venue objection at the time she filed her emergency motion for return of the minor child. Former Wife’s emergency motion was filed in response to the Seminole County circuit court exercising emergency jurisdiction over the minor child. Indeed, her motion was filed prior to the filing of Former Husband’s petition to register the German judgment in Florida and his amended supplemental petition to modify. In response to those petitions, Former Wife filed her motion challenging Former Husband’s venue selection. See Beckles v. Grover, 496 So.2d 993, 994 (Fla. 2d DCA 1986) (holding that mother’s failure to challenge venue at same time she filed emergency motion to continue an unauthorized hearing did not constitute waiver).

On remand, the trial court is directed to dismiss Former Husband’s Verified Petition to Register a Foreign Decree Order in Florida and his Amended Supplemental Petition to Modify Final Judgment of Dissolution of Marriage because venue was improper in Seminole County.

REVERSED and REMANDED.

SAWAYA and WALLIS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GENUINELY LOVING CHILDCARE, LLC, Allyson M. Geggatt and Nicol E. Rocci, Appellants, v. BRE MARINER CONWAY CROSSINGS, LLC, Appellee.
    Case No. 5D15-4168
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 13, 2017
    Rehearing Denied February 10, 2017

      Benjamin S. Boutty, of The Boutty Law Firm, P.A., Winter Park, and James W. Markel, of James Wayland Markel, P.A., Winter Park, for Appellants.
    Meghan O. Serrano, Jaime Austrich and Duane A Daiker, of Shumaker, Loop, & Kendrick, LLP, Tampa, for Appellee.
   PER CURIAM.

Genuinely Loving Childcare, LLC (Tenant) and its joint owners, Allyson M. Geg-gatt and Nicol E. Rocci (Guarantors), appeal the final summary judgment rendered by the trial court in favor of Bre Mariner Conway Crossings, LLC (Landlord), which enforced a commercial lease by granting Landlord possession of the premises and damages for past and future rent. We affirm, in part, and reverse, in part. Although the trial court properly granted Landlord summary judgment on the issue of possession of the premises, its grant of summary judgment on the issue of Tenant’s liability for past and future rent was erroneous as Landlord has failed to conclusively negate or demonstrate the legal insufficiency of four of Tenant’s affirmative defenses, wherein a genuine issue of material fact exists as to the element of foreseeability.

Tenant and Landlord executed a five-year commercial lease for two store spaces, consisting of 2800 square feet, in the Conway Crossings Shopping Center in Orlando, Florida. Simultaneously, Geggatt and Rocci executed personal guarantees of the lease. Section 5.01 of the lease stated that Tenant could use the premises “solely for the purpose of the operation of a child day care center” for up to thirty-five children between the ages of six weeks and five years. Tenant was required to comply “with all applicable government codes and licensing requirements.” Sections 2.01(b) and 2.01(c) of the lease limited the leased premises to indoor areas, and section 22.11 of the lease required Tenant to use its best efforts to keep the children inside the premises and prevent them from loitering outside in the common areas of the shopping center.

In Florida, the operation of a child cai-e center that cares for more than five children requires a license from the Department of Children and Families (Department) that is subject to annual renewal. §§ 402.308(1), 402.312(1), Fla. Stat. (2013). The Legislature has set minimum standards for licensure, including that the child care center have at least forty-five square feet of outdoor play space per child, which must be fenced and free of various hazards. § 402.305(6)(b), Fla. Stat. (2013); Fla. Admin. Code R. 65C-22.002(4) (2013). Drop-in childcare centers and urban child care centers are exempt from the outdoor play space requirement. §§ 402.302(6), 402.305(5), (6)(b), (14), Fla. Stat. (2013); Fla. Admin. Code 65C-22.002(4)(g) (2013). The urban child care center designation, which permits the substitution of indoor play space for outdoor play space, requires written documentation from the local governing body that the area where the child care center is located has been declared urban, and consultation with the Department to verify that outdoor play space does not exist adjacent to the facility and cannot be added to the premises. Fla. Admin. Code R. 65C-22.001(l)(e)l. (2013). The Department may issue a provisional license of six months duration, renewable only once, if the child care center does not meet all of the minimum standards. § 402.309(1), (3), Fla. Stat. (2013).

In her affidavit opposing summary judgment, Rocci stated that a lease was required before Tenant could apply for a license from the Department to operate the child care center. Rocci noted that Tenant informed Landlord it was unwilling to sign the lease until it had assurances from the Department it would receive the urban designation. Rocci asserted that Tenant received written documentation from Orange County that the geographical area was urban, consulted with the Department about the unavailability of outdoor play space on the premises, and was granted the urban designation by the Department before signing the lease.

According to Rocci’s affidavit, Tenant applied for the child care center license on December 9, 2013. In January 2014, the Department denied Tenant a permanent license because it did not believe the child care center was in an urban area, but it approved a provisional license with the understanding that outdoor play space would be needed for a permanent license. Tenant opened the child care center on the premises in February 2014. According to Rocci, Tenant notified Landlord in June 2014 that it would vacate the premises if it could not obtain a permanent license. Tenant abandoned the premises in February 2015, only one year into the five-year commercial lease, when its provisional license to operate a child care center on the leased premises expired and no further renewals were permitted by law. See § 402.309(3), Fla. Stat. (2013).

The entry of summary judgment by a trial court is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1116-17 (Fla. 2d DCA 2011) (quoting Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006)). The burden is on the party moving for summary judgment to demonstrate the absence of any genuine issues of material fact. See, e.g., Holl v. Talcott, 191 So.2d 40, 43-44 (Fla. 1966) (citing Humphrys v. Jarrell, 104 So.2d 404 (Fla. 2d DCA 1958)). The summary judgment evidence must be taken in the light most favorable to the non-moving party. See Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000) (citing Walsingham v. Dockery, 671 So.2d 166 (Fla. 1st DCA 1996)).

In addition to showing there is no genuine issue of material fact, the moving party also has the further burden of factually refuting any affirmative defenses raised by the non-moving party or establishing that they are legally insufficient. See T-Quip of Fla., Inc. v. Tietig, 207 So.3d 958, 2016 WL 7174344, 41 Fla. L. Weekly D2740 (Fla. 5th DCA Dec. 9, 2016); Taylor, 74 So.3d at 1116-17. Tenant raised six affirmative defenses in its answer. Landlord did not file a reply, waiving avoidance of Tenant’s affirmative defenses, and thus, they were deemed denied. See Fla. R. Civ. P. 1.100(a); Frisbie v. Carolina Cas. Ins. Co., 162 So.3d 1079, 1080-81 (Fla. 5th DCA 2015) (quoting Lazar v. Allen, 347 So.2d 457, 458 (Fla. 2d DCA 1977)); Burton v. Linotype Co., 556 So.2d 1126, 1128 (Fla. 3d DCA 1989) (citing Moore Meats, Inc. v. Strawn, 313 So.2d 660, 661-62 (Fla. 1975)). When affirmative defenses are denied rather than avoided, an affidavit may still refute the affirmative defense, but the affidavit is insufficient to do so when it merely supports the allegations in the complaint and fails to address the affirmative defenses. Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784, 786-87 (Fla. 5th DCA 2003) (citing Elkins v. Barbella, 603 So.2d 726 (Fla. 4th DCA 1992)).

Landlord’s affidavit and its argumentation in its motion for summary judgment did not conclusively refute Tenant’s affirmative defenses of impossibility, impracticality, frustration of purpose, and commercial frustration of purpose. See Mehdi, 854 So.2d at 786-87 (citing Elkins, 603 So.2d at 726); see also Tietig, 207 So.3d at 960-61, 2016 WL 7174344, 41 Fla. L. Weekly D2740-D2741. The common thread between these four affirmative defenses is foreseeability at the inception of the lease. See Shore Inv. Co. v. Hotel Trinidad, Inc., 158 Fla. 682, 29 So.2d 696, 697 (1947) (citing Ellwood v. Nutex Oil Co., 148 S.W.2d 862 (Tex. Civ. App. 1941)); Restatement (Second) of Contracts § 266 (Am. Law Inst. 1981). If a risk was foreseeable at the inception of the lease, then there exists an inference that the risk was either allocated by the contract or was assumed by the party. See Am. Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So.2d 809, 810 (Fla. 4th DCA 1998) (citing City of Miami Beach v. Championship Sports, Inc., 200 So.2d 583 (Fla. 3d DCA 1967)). Generally, foreseeability in the context of contractual defenses is an issue of fact precluding summary judgment. See Walter T. Embry, Inc. v. LaSalle Nat’l Bank, 792 So.2d 567, 570 (Fla. 4th DCA 2001) (finding that foreseeability was a question of fact precluding summary judgment in the context of an impossibility defense to the enforcement of a contract); F & B Ceco, Inc. of Fla. v. Galaxy Studios, Inc., 201 So.2d 597, 598 (Fla. 3d DCA 1967) (“[I]f men could reasonably differ over the objective facts concerning whether appellant should have foreseen appellee’s loss, then the issue should be left to the jury.”).

Landlord argues that Tenant’s affirmative defenses are legally insufficient because the risk Tenant would not obtain a license was foreseen and allocated by the lease to Tenant. However, the provisions of the lease do not explicitly allocate the risk that the Department would deny Tenant the urban designation and, consequently, a permanent license without outdoor play space. Additionally, Landlord’s affidavit in support of summary judgment did not address the intent of the parties to the lease as to the allocation of the risk. See Mehdi, 854 So.2d at 786-87. In contrast, Rocci’s affidavit states that Tenant was granted the urban designation by the Department before signing the lease, and Landlord was aware that Tenant was unwilling to sign the lease due to the lack of outdoor play space without assurances Tenant would receive the urban designation from the Department.

Based on Rocci’s undisputed statements in her affidavit opposing summary judgment, there remains a genuine issue of material fact as to whether it was foreseeable at the inception of the lease that the Department would deny Tenant the urban designation and require outdoor play space for licensure. Accordingly, we reverse the final summary judgment entered by the trial court and remand for further proceedings to the extent that it held Tenant liable for damages for past and future rent due. We affirm the entry of summary judgment to the extent that it awarded possession of the premises to Landlord based on Tenant’s abandonment. See 159 E. Inc. v. Margolis, 702 So.2d 286, 287 (Fla. 4th DCA 1997) (citing Rodeway Inns of Am. v. Alpaugh, 390 So.2d 370, 372 (Fla. 2d DCA 1980)).

AFFIRMED, in part, REVERSED, in part, and REMANDED.

PALMER, EVANDER and BERGER, JJ., concur.

      . Tenant also argues that there were genuine issues of material fact as to the date Tenant abandoned the premises and the method Landlord used to calculate the damages. Contrary to Tenant's assertions, there was no genuine issue of material fact as to these issues. The difference between the dates of abandonment alleged by Tenant and Landlord is so slight that the issue is not material, and Tenant did not offer any facts challenging Landlord’s calculation of damages.


text:
    Dustin K. GROOMS, DC#C02329, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D13-5794
    District Court of Appeal of Florida, Second District.
    January 18, 2017
    Geoffrey R. Cox, of Cox & Associates, Attorneys at Law, P.A., Wesley Chapel, for Appellant.
    Dustin K. Grooms, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

The prior opinion dated October 5, 2016, is withdrawn, and the attached opinion is issued in its place, essentially identical to the original opinion except for the addition of Geoffrey R. Cox as attorney of record.

Affirmed.

SILBERMAN, BLACK, and BADALAMENTI, JJ., Concur.


author: WINSOR, J. MAKAR, J.,

text:
    David LAYCOCK, Petitioner, v. TMS LOGISTICS, INC., Respondent.
    CASE NO. 1D15-5518
    District Court of Appeal of Florida, First District.
    Opinion filed January 19, 2017.

      Michelline H. Ruth, William W. Kurtz, Jr., Denise M. Stocker, and Ryan E. Thompson of Ronald E. Sholes, P.A., Jacksonville, for Petitioner.
    Peter D. Webster and Christine Davis Graves of Carlton Fields, Tallahassee, for Respondent.
   WINSOR, J.

There was a truck accident, there was a personal injury lawsuit, and there was a multimillion-dollar jury verdict. Then there were allegations of juror misconduct, which led to an order allowing juror interviews, which led to the certiorari petition we now address.

David Laycock, the plaintiff who obtained the verdict below, seeks a writ of certiorari to stop planned juror interviews before they begin — juror interviews that the defendant sought in connection with its pending motion for new trial. Because any harm Laycock might face can be remedied on appeal, we dismiss the petition.

I.

Alleging injuries from a 2012 accident, Laycock sued TMS Logistics, Inc., whose employee drove the tractor-trailer involved in the crash. In 2015, a jury attributed ninety-five percent fault to TMS’s driver and five percent to Laycock. The jury found total damages just over $3.5 million, inclusive of medical expenses and pain and suffering.

At a hearing days after the verdict, the trial court announced that a juror had contacted the court and spoken- to the judge’s assistant. TMS then announced that one of its attorneys, too, had spoken to jurors. According to an affidavit that attorney later submitted, two jurors approached her as she left the courthouse. They offered opinions on the case generally, along with specific details on jury deliberations. One juror “kept repeating that the jurors agreed not to follow the Court’s instructions.” TMS then sought more information.

Over Laycock’s objection, the trial court ordered a limited interview of one juror. Laycock filed no certiorari petition to stop it, and the interview went forward. After that, the trial court considered TMS’s motion to interview additional jurors. The court ultimately concluded that TMS “established by sworn factual allegations and the testimony of [the juror already interviewed] a prima facie case of juror misconduct.” That misconduct, the court continued, would require a new trial if found to be tru,e, unless Laycock could “demonstrate there is no reasonable possibility that the juror misconduct affected the verdict.” Accordingly, the court ordered that it would contact the remaining five jurors and schedule the interviews.

II.

Laycock challenges the trial court’s decision, which he contends misapplied the standard for permitting post-verdict juror interviews. But before we consider the merits of this argument, we must first determine whether Laycock has shown “a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.3d 344, 351 (Fla. 2012); accord Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla. 1998); AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010). Because this is a threshold jurisdictional question, we cannot grant the writ without such a showing — no matter how wrong the trial court might have been.

Laycock acknowledges the irreparable-harm requirement, and he argues the trial court’s order will cause that harm “by needlessly extending litigation in this matter, exploring the subjective motives of jurors, and invading the privacy of the jury deliberation room.” Pet. at 11; accord id. at 30-31 (explaining that “litigation would be extended in this matter without legal justification, the sanctity of the jury room would be violated, decades of jurisprudence and public policy would be eroded, and jurors would be unnecessarily harassed”). These harms, even if demonstrated, cannot provide a basis for our jurisdiction.

A.

The first asserted harm — needless continuation of litigation — requires little discussion. The Florida Supreme Court has made clear that “the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm.” Rodriguez v. Miami-Dade County, 117 So.3d 400, 405-06 (Fla. 2013); accord AVCO Corp., 30 So.3d at 601 (“We have repeatedly declined to grant certiorari review to orders that petitioners claim will cause irreparable harm due to payment of unnecessary litigation and defense expenses.”). Where that is the asserted injury, “the use of certiorari review is improper.” Rodriguez, 117 So.3d at 405.

B.

The second asserted harm — injury to jurors or the sanctity of their process— presents a more complicated question. Other district courts’ decisions have found this sufficient, most notably in Pesci v. Maistrellis, 672 So.2d 583 (Fla. 2d DCA 1996). In Pesci, the court exercised certio-rari jurisdiction based on perceived harm to the “sanctity of jury deliberations.” Id. at 585. The court noted the longstanding rule of “prohibiting litigants or the public from invading the privacy of jury deliberations,” and it concluded that without cer-tiorari review of juror-interview orders, “the continuing vitality of this fundamental principle would be irreparably and materially harmed.” Id. The Fifth District followed that same path, albeit with less detailed justification. In Orange County v. Piper, 585 So.2d 1182 (Fla. 5th DCA 1991), the court disagreed with the trial court’s decision to allow juror interviews and announced that it “grant[ed] certiorari to prohibit invasion of the sanctity of jury deliberations.” Id. at 1182. It did not otherwise address the irreparable-harm jurisdictional threshold.

The problem with relying on harm to jurors or the jury process is that “it is settled law that, as a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.” Jaye, 720 So.2d at 215 (emphasis added); accord San Perdido Ass’n, 104 So.3d at 353 (certiorari unavailable unless “the party will suffer irreparable harm”) (emphasis added); Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 455 (Fla. 2012) (certiorari unavailable “[i]f the party seeking review does not demonstrate that it will suffer material injury of an irreparable nature”) (emphasis added). Neither alleged harm to “the sanctity of jury deliberations,” Pesci, 672 So.2d at 585, nor any ethereal injury to “the civil trial process,” Pet. at 12, equals harm to Laycock.

We acknowledge that all five Florida district courts, including this one, have addressed the merits of certiorari petitions dealing with juror interviews. See Penalver v. Masomere, 178 So.3d 533 (Fla. 3d DCA 2015); Naugle v. Philip Morris USA, Inc., 133 So.3d 1235 (Fla. 4th DCA 2014); State v. Monserrate-Jacobs, 89 So.3d 294 (Fla. 5th DCA 2012); Hannon v. Shands Teaching Hosp. & Clinics, Inc., 56 So.3d 879 (Fla. 1st DCA 2011); Harbour Island Sec. Co. v. Doe, 652 So.2d 1198 (Fla. 2d DCA 1995). But these cases did not address — or even mention — the irreparable-harm component, and we cannot view these as holding that irreparable harm to “the party seeking review,” Bd. of Trs. of Internal Improvement Tr. Fund, 99 So.3d at 455, is not required when it comes to juror interviews. Cf. Gretna Racing, LLC v. Dep’t of Bus. & Prof'l Regulation, 178 So.3d 15, 23 (Fla. 1st DCA 2015) (rejecting argument that earlier decision “implicitly held” that which it “didn’t even mention”), review granted sub nom. Gretna Racing, LLC v. Fla. Dep’t of Bus. & Prof'l Regulation, SC15-1929, 2015 WL 8212827 (Fla. Dec. 1, 2015); Hargrett v. Toyota Motor Sales U.S.A., Inc., 705 So.2d 1009, 1009 (Fla. 4th DCA 1998) (rejecting reliance on certiorari decision that presented “similar circumstances” but “did not explain ... how the order would cause irreparable harm which could not be cured by final appeal”). Like the United States Supreme Court, we recognize that one court’s addressing an issue on the merits without discussing jurisdictional limitations does not constitute a holding that jurisdiction existed. See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011) (“When a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed.”); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (noting that “drive-by jurisdictional rulings” have no precedential effect).

For similar reasons, the Florida Supreme Court’s decision in Baptist Hospital of Miami, Inc. v. Maler, does not guide us on this issue. 579 So.2d 97 (Fla. 1991). In Baptist, the supreme court did approve a Third District decision granting certiorari and halting juror interviews, but it did so without ever addressing irreparable harm. The jurisdictional prerequisite for certiora-ri jurisdiction was not at issue: The court granted review to resolve a certified inter-district conflict regarding the applicable standard for determining whether to allow juror interviews in the first place — an issue distinct from the irreparable-harm inquiry. See id. at 100 (‘We hold that an inquiry is never permissible unless the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial .... ”). Indeed, the case creating the certified conflict— Preast v. Amica Mutual Insurance Company, 483 So.2d 83 (Fla. 2d DCA 1986)—was a direct appeal, not a certiorari proceeding.

It is perhaps tempting to view the Florida Supreme Court’s Baptist decision as creating a special exception to the irreparable-harm-to-the-petitioner requirement, essentially eliminating it in juror-interview cases. The court did, after all, approve a decision that granted certiorari, without breathing a word about such harm. But long before Baptist, the Florida Supreme Court established an exacting standard for certiorari review, always requiring irreparable harm to the petitioner. See, e.g., Chambers v. St. Johns County, 94 Fla. 814, 114 So. 526, 527 (1927) (“The proceedings complained of do not show such vital irregularity with irremediable injury to the petitioners as to justify the issuing of a writ of certiorari.”); Am. Ry. Express Co. v. Weatherford, 84 Fla. 264, 93 So. 740, 742 (1922) (“Generally stated, a writ of certio-rari may, in the discretion of the court, be issued where it is duly made to appear, at least prima facie, that the record of a lower court shows that the proceedings in a cause have violated established principles of law, or that the adjudication in the case is a palpable miscarriage of justice, and that the result is a substantial injury to the petitioner, who has no other remedy, and seeks a writ of certiorari.”). And the court has consistently reminded lower courts and litigants that it does not overrule itself without saying so. See Puryear v. State, 810 So.2d 901, 905 (Fla. 2002) (“[Tjhis Court does not intentionally overrule itself sub silentio.”); see also Roberts v. Brown, 43 So.3d 673, 683 (Fla. 2010) (“Had we intended to overrule our prior declaration ..., we would have done so in a more definite and express manner.”). We therefore cannot interpret Baptist to modify longstanding precedent it did not address.

III.

Finally, Laycock argues that there are substantial policy benefits of our having interlocutory review of orders like the one at issue. But “the writ of certiorari cannot be used simply because strong policy reasons support interlocutory review.” San Perdido Ass’n, 104 So.3d at 353. Instead, policy matters are considered when the supreme court — not this court — determines which categories of non-final orders warrant immediate review under rule 9.130. Id. at 348 (noting that Florida Supreme Court “weighs the importance of having interlocutory review in light of potential drawbacks, such as increased appellate workload and concomitant delay in the resolution of the case”); cf. also Keck v. Eminisor, 104 So.3d 359, 366 (Fla. 2012) (rejecting expansion of certiorari review for denials of individual immunity but ordering change to rule 9.130 to allow appeal of those non-final orders). Certiorari “should not be used to circumvent the interlocutory appeal rule,” which the supreme court has carefully limited. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla. 1987), superseded by statute on other grounds, as stated in Williams v. Oken, 62 So.3d 1129, 1134 (Fla. 2011); see also San Perdido Ass’n, 104 So.3d at 348 (noting that list of appealable non-final orders is “carefully created”).

If the interviews go forward and lead to an order granting a new trial, then Lay-cock can appeal that order. See Fla. R. App. P. 9.110(a)(3) (authorizing appeal of order granting new trial). That makes his harm (if any) quite reparable. Because Laycock has not shown irreparable harm to himself, and because we cannot base our jurisdiction on harm to the “sanctity of jury deliberations,” Pesci, 672 So.2d at 585, we lack jurisdiction. We therefore dismiss the petition without reaching the merits, but we certify conflict with Pesci v. Maistrellis, 672 So.2d 583 (Fla. 2d DCA 1996).

DISMISSED; CONFLICT CERTIFIED.

OSTERHAUS, J., concurs; MAKAR, J., concurs in part and dissents in part with opinion.

MAKAR, J.,

concurring in part, dissenting in part.

For at least twenty years, Florida trial and appellate courts have followed the principle that because post-verdict interviews of jurors are potentially disruptive of the secrecy and sanctity of juror deliberations, immediate appellate review via a writ of certiorari is available to protect the decision-making process from unwarranted meddling. See Pesci v. Maistrellis, 672 So.2d 583, 585-86 (Fla. 2d DCA 1996) (Florida appellate courts “have traditionally utilized the writ of certiorari to review the propriety of a trial court order granting a motion for jury interview to ensure that such an order will not result in a breach of the sanctity of jury deliberations.”); see also State v. Monserrate-Jacobs, 89 So.3d 294, 296 (Fla. 5th DCA 2012) (“In recognition of this sound public policy [against invasion of the privacy of jury deliberations], Florida courts have traditionally utilized the writ of certiorari to review the propriety of a trial court order granting a motion for juror interview, so as to ensure that such an order will not result in a breach of the sanctity of jury deliberations.”).

The writ of certiorari has been deemed a necessary exercise of judicial power to protect the long-standing public policy of shielding juries from unchecked and unwarranted inquiries into their deliberations. As the Second District said in Pesci, if review of a trial court’s order allowing a jury interview had to await direct appeal, it:

would mean that an appellate court would be powerless to prevent a trial court .,. from abusing its discretion by conducting an unwarranted intrusion into the private thought processes of jurors to determine what motivated them to return their verdict. To accept such a proposition could open up a “Pandora’s box” of unchecked postverdict jury inquiries based on nothing more than speculation and conjecture in clear violation of the rule, which, as we have previously noted, “was not intended to authorize broad hunting expeditions or fishing excursions.”

672 So.2d at 585-86 (citation omitted). Thus, as a matter of judicial policy, it makes sense to allow certiorari review to protect against improper intrusions into jury deliberations before they occur.

Litigants challenging juror interview orders are not required to pursue immediate appellate relief, but they oftentimes do so, which may explain why fewer cases exist where juror interview orders have been reviewed on direct appeal. For example, in Simon v. Maldonado, 65 So.3d 8 (Fla. 3d DCA 2011), the appellant prevailed on direct appeal, establishing that a juror interview should not have occurred, the Third District stating, the “affidavit submitted in support of the motion for juror interview was based factually on speculation, alleging only that there was a ‘possibility” of juror misconduct. Such speculation is not sufficient to warrant the trial court to order a juror interview.” Id. at 11. Had the appellant pursued relief via a certiorari petition, the result would have been the same, but the intrusive juror interview would have been avoided. See City of Winter Haven v. Allen, 589 So.2d 968, 969 (Fla. 2d DCA 1991) (on direct appeal, affirming grant of new trial where trial court “had a reasonable concern, supported by credible information, that the jury’s verdict had been influenced by extrinsic factual matters disclosed in the jury room”); Dover Corp. v. Dean, 473 So.2d 710 (Fla. 4th DCA 1985) (on direct appeal, reversing grant of new trial where motion for jury interviews was legally insufficient). The point is that allowing review of jury interview orders via writ of certiorari or, alternatively on direct appeal, has not proven to be problematic as a matter of judicial administration.

Although it makes some sense to require a showing of irreparable injury to litigants opposing jury interviews to establish the basis for certiorari review (after all, that is what cases not involving jury interviews generally say), the judicial system’s longstanding reverence for protecting juries from unwarranted, irremediable intrusions is based on sound reasoning and has created a bright line that trial and appellate courts have followed for decades. For these reasons, I concur in certifying conflict, but would adopt the rationale of Pesci and other districts that have permitted review of jury interview orders via petitions for writs of certiorari.

      . This court stayed the lower court's order pending resolution of this petition.

      . In San Perdido Association, Inc., after noting that it had "never held that requiring a party to continue to defend a lawsuit is irreparable harm for the purposes of invoking the jurisdiction of an appellate court to issue a common law writ of certiorari,” the Florida Supreme Court articulated the far-reaching consequences of an opposite rule: "To hold otherwise would mean that review of every non-final order could be sought through a petition for writ of certiorari. Under such a ruling, appellate courts would be inundated with petitions to review non-final orders and trial court proceedings would be unduly interrupted.” 104 So.3d at 353.

      . Direct appeals frequently address orders that granted juror interviews. See, e.g., Simon v. Maldonado, 65 So.3d 8 (Fla. 3d DCA 2011); Ray Cooke Enters., Inc. v. Parsons, 627 So.2d 1267 (Fla. 4th DCA 1993); City of Winter Haven v. Allen, 589 So.2d 968 (Fla. 2d DCA 1991); Dover Corp. v. Dean, 473 So.2d 710 (Fla. 4th DCA 1985).

      . The Fourth District treats petitions for writs of certiorari as appeals from jury interview orders. See, e.g., Travent, Ltd. v. Schecter, 678 So.2d 1345, 1347 (Fla. 4th DCA 1996) (defendant "filed a petition for a writ of common law certiorari, which we treat as an appeal from the [jury interview] order”); Ray Cooke Enter., Inc. v. Parsons, 627 So.2d 1267 (Fla. 4th DCA 1993) (same).


author: LUCAS, Judge.

text:
    Anabel ROMERO, Appellant, v. WELLS FARGO BANK, N.A., as Trustee for the Certificateholders of Carrington Mortgage Loan Trust, Series 2006-OPT1, Asset Backed Pass-Through Certificates, Appellee.
    Case No. 2D15-5270
    District Court of Appeal of Florida, Second District.
    Opinion filed January 20, 2017

      Tonya Willis Pitts and Medisa Memic of McIntyre Thanasides Bringgold Elliott Grimaldi & Güito, P.A., Sarasota, for Appellant.
    Kimberly S. Mello and Laura J. Bassini of Greenberg Traurig, Tampa, for Appel-lee.
   LUCAS, Judge.

Anabel Romero appeals the circuit court’s order denying her motion to vacate a final judgment of foreclosure, a judgment she claims was procured through extrinsic fraud upon the court. Because her motion was filed more than one year after rendition of the judgment, the circuit court was precluded from ruling on the motion’s merits. Under the law, the circuit court could only dismiss the untimely motion, and for that reason we must vacate the court’s order.

Wells Fargo obtained a final judgment of foreclosure against Ms. Romero on August 6, 2012, when she failed to appear at the scheduled nonjury trial. On March 30, 2015, more than a year and a half later, Ms. Romero moved to vacate the final judgment under Florida Rule of Civil Procedure 1.540(b)(3). In her motion, Ms. Romero alleged that her failure to attend the trial was the result of Wells Fargo’s counsel’s misrepresentation to the presiding judge that she and her attorney were not present in the court when her case was called. Ms. Romero argued that this misrepresentation amounted to fraud upon the court, which allowed Wells Fargo to improperly obtain a final judgment in her absence. The circuit court held a hearing on Ms. Romero’s motion to vacate, and, on October 29, 2015, denied the motion without elaboration.

Rule 1.540(b)(3) permits a trial court to relieve a party from a final judgment for “fraud ..., misrepresentation, or other misconduct of an adverse party.” A rule 1.540(b)(3) motion “shall be filed ... not more than [one] year after the judgment ... was entered.”

Florida case law applies this rule as a jurisdictional boundary for a trial court. Ordinarily, once a final judgment is entered, “the trial court loses jurisdiction over the case except to enforce the judgment.” Bank One, Nat’l Ass’n v. Batronie, 884 So.2d 346, 348 (Fla. 2d DCA 2004). “[T]he one exception to the rule of absolute finality is rule 1.540, ‘which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.’ ” Bane v. Bane, 775 So.2d 938, 941 (Fla. 2000) (quoting Miller v. Fortune Ins. Co., 484 So.2d 1221, 1223 (Fla. 1986)). “Among those circumstances ... is compliance with the time limit of rule 1.540(b)(3), which, like other jurisdictional time limits such as the time for filing a notice of appeal or a motion for new trial, may not be extended for any reason.” Batronie, 884 So.2d at 349 (citing Fla. R. Civ. P. 1.090(b)). “Once beyond the reach of rule 1.540(b), the final judgment of foreclosure ‘pass[es] into the unassailable realm of finality.’ ” Id. (quoting Holm v. Demetree, 681 So.2d 868, 869 (Fla. 5th DCA 1996)).

Here, the final judgment of foreclosure was entered in August 2012. Ms. Romero’s motion was not filed until over one and a half years later. The circuit court was without jurisdiction to entertain her motion on its merits; it could do nothing more than dismiss Ms. Romero’s motion as untimely. Cf. Miller, 484 So.2d at 1223-24 (“[A]U rules of jurisdiction inherently provide authority for the court to assume jurisdiction for the limited purpose of determining whether a basis exists for the court to proceed further.”). Accordingly, we must vacate the order denying Ms. Romero’s motion with instructions to enter an order dismissing Ms. Romero’s motion as untimely filed under rule 1.540(b)(3).

Vacated and remanded with instructions.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . Although neither party raised this issue on appeal, a circuit court’s lack of jurisdiction "may be considered independently by the appellate court, even if the issue was never raised in the trial court.” Stone v. Stone, 873 So.2d 628, 630 n.1 (Fla. 2d DCA 2004); cf. Wright v. Scott, 658 So.2d 1215, 1215 (Fla. 1st DCA 1995) (holding that the failure to comply with the jurisdictional time limit of rule 1.540(b) was "fundamental error which can be raised for the first time on appeal”).


text:
    Kelvin FRAZIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5244
    District Court of Appeal of Florida, Second District.
    Opinion filed January 20, 2017
    Kelvin Frazier, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Kelvin Frazier appeals the order summarily denying his motion seeking to vacate his sentence under Florida Rule of Criminal Procedure 3.850(b)(2) (providing an exception to the two-year time limit for newly established constitutional rights that have been held to apply retroactively). We reverse.

In his motion, Frazier alleged that he was entitled to relief under the Florida Supreme Court’s recent cases interpreting Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because the trial court sentenced him to life imprisonment with the possibility of parole for a first-degree murder committed in 1985 when he was a juvenile. See Falcon v. State, 162 So.3d 954 (Fla. 2015); Horsley v. State, 160 So.3d 393 (Fla. 2015). But those cases did not address the issue of whether juveniles convicted of murder and sentenced to life imprisonment with the possibility of parole were entitled to resen-tencing under Miller. Because then-existing case law held that such juveniles were not entitled to relief, the postconviction court denied Frazier’s motion. See, e.g., McPherson v. State, 138 So.3d 1201, 1202 (Fla. 2d DCA 2014), quashed, 41 Fla. L. Weekly S578 (Fla. Oct. 28, 2016). However, the supreme court recently addressed the issue raised by Frazier when it quashed Atwell v. State, 128 So.3d 167 (Fla. 4th DCA 2013). In Atwell v. State, 197 So.3d 1040, 1041 (Fla. 2016), the court concluded “that Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional.” The court held that juveniles sentenced to life with the possibility of parole are entitled to resentencing in conformance with chapter 14-220, Laws of Florida. Id. at 1050 (citing Horsley, 160 So.3d at 399); see also Landy v. State, 41 Fla. L. Weekly D2555 (Fla. 2d DCA Nov. 16, 2016) (reversing Landy’s life sentence for murder pursuant to Atwell and remanding for resentencing under chapter 14-220).

Accordingly, we reverse the order denying Frazier’s postconviction motion and remand for resentencing in conformance with chapter 14-220, Laws of Florida, as codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes (2014).

Reversed and remanded.

CASANUEVA, CRENSHAW, and SALARIO, JJ., Concur.


author: LAMBERT, J.

text:
    PALM GARDEN OF HEALTHCARE HOLDINGS, LLC, Palm Garden Healthcare Management, LLC and Palm Garden of Orlando, Appellants, v. Valerie HAYDU as Power of Attorney for James Yongue, Appellee.
    Case No. 5D16-2568
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 20, 2017

      Kristen K. Ullman and Amy D. Prevatt, of Lewis Brisbois Bisgaard & Smith, LLP, Tampa, for Appellants.
    Ian P. Depagnier and Jason A. Paul, of Paul & Perkins, P.A., Orlando, for Appel-lee.
   LAMBERT, J.

Palm Garden of Orlando, LLC, and Palm Healthcare Management, LLC, (collectively “Appellants”) appeal the trial court’s nonfinal order denying their motion to compel arbitration against Appellee, Valerie Haydu (“Haydu”), as Power of Attorney for James Yongue (“Yongue”). The court, following an evidentiary hearing, found that there had not been a “sufficient showing” to establish that either Yongue or Haydu, acting on behalf of and with the consent of Yongue, had entered into a binding arbitration agreement. We affirm.

On January 8, 2015, Yongue was released from an Orlando hospital to be directly admitted to the Palm Garden of Orlando nursing home facility. The following day, Haydu executed an agreement prepared by Appellants, admitting Yongue as a resident to the nursing home. Contained within this admissions agreement was an optional arbitration agreement, waiving Yongue’s right to a trial by jury and agreeing to binding arbitration.

On January 11, 2015, Yongue suffered a “major aspirational event” at the nursing home and was transported to a local hospital. Yongue never returned to the nursing home. Haydu subsequently obtained power of attorney from Yongue and filed suit on his behalf against Appellants, alleging that this hospitalization and Yongue’s injuries and damages were proximately caused by Appellants’ negligent care and treatment of Yongue while a resident at the nursing home. In response, Appellants moved to compel arbitration, arguing that Yongue gave verbal and written consent to Haydu to sign the admissions agreement containing the arbitration agreement on his behalf, thereby binding Yongue to resolve his claims against Appellants through arbitration.

The evidence presented at the hearing on the motion to compel arbitration consisted of the depositions of Haydu and Jasper Buzón (“Buzón”), the admissions director for the nursing home, a few documents, including the admissions agreement, and live testimony from Buzón. Yon-gue did not testify nor was he deposed prior to the hearing because, as acknowledged by the parties, the “aspirational event” he suffered on January 11, 2015, prohibited him from verbally communicating. In the order on appeal, the trial court discussed the evidence presented from both parties and, in denying the motion, held that a binding agreement for arbitration had not been entered into by Yongue or by Haydu on Yongue’s behalf.

Appellate review of whether a trial court erred in denying a motion to compel arbitration presents “a mixed question of law and fact.” Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005) (quoting Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 283 (Fla. 1st DCA 2003)). “Orders denying motions for arbitration are reviewed de novo, except that factual findings are reviewed for support by competent, substantial evidence.” Fi-Evergreen Woods, LLC v. Estate of Vrastil, 118 So.3d 859, 862 (Fla. 5th DCA 2013) (citing Best v. Educ. Affiliates, Inc., 82 So.3d 143, 145 (Fla. 4th DCA 2012)).

Three elements are considered by the court under the Revised Florida Arbitration Code when ruling on a motion to compel arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999) (citation omitted). Here, only the first element is at issue. Appellants, as the proponents of arbitration, have the burden of establishing an enforceable written agreement to arbitrate. See Steve Owren, Inc. v. Connolly, 877 So.2d 918, 920 (Fla. 4th DCA 2004) (citing Shearson Lehman Hutton, Inc. v. Lifshutz, 595 So.2d 996, 997 (Fla. 4th DCA 1992)).

The evidence before the trial court on whether there was an enforceable agreement to arbitrate and the circumstances surrounding the execution of the admissions agreement was conflicting. Haydu acknowledged that she signed the agreement but testified that she did so only after a telephone conversation with Buzón, during which Buzón advised her that the agreement would be left in Yongue’s room and needed to be executed for Yongue to continue receiving his medication and treatment. Haydu also testified that she advised Buzón that she had no power of attorney or other authority given to her by Yongue to execute the agreement on his behalf. In contrast, Buzón testified that he would have explained the admissions agreement to both Yongue and Haydu and that Yongue gave verbal consent for Hay-du to sign the agreement on his behalf, as evidenced by Yongue’s signature on the document directly above Haydu’s and Bu-zon’s signatures as witnesses, acknowledging that he had given verbal consent to Haydu to sign the admissions agreement on his behalf. Haydu, however, testified that: (1) she did not recognize the signature on the agreement to be that of her father’s; (2) when she signed the agreement in her father’s dimly-lit room, Buzón was not present, and Yongue was either sleeping or falling asleep; and (3) she did not know why Yongue did not sign the agreement.

What is undisputed and found by the court is that Yongue was competent to decide whether to give Haydu the authority to execute the admissions agreement on his behalf. In the order on appeal, the court found the evidence was insufficient to establish that Yongue had entered into a binding agreement for arbitration. However, even if Yongue did not sign the agreement, a nonsignatory to an arbitration agreement is bound to the agreement “when the signatory ... is authorized to act as the agent of the person sought to be bound.” Stalley v. Transitional Hosps. Corp. of Tampa, Inc., 44 So.3d 627, 630 (Fla. 2d DCA 2010); see also Fi-Evergreen Woods, LLC v. Estate of Robinson, 172 So.3d 493, 495 (Fla. 5th DCA 2015). In addressing whether Haydu was authorized by Yongue to execute this agreement, the trial court found that it was undisputed that Haydu did not have a legal power of attorney from Yongue to execute documents on his behalf. While accurate, this is not dispositive because the appropriate analysis in determining whether the non-signatory (Yongue) is bound by the actions of the signatory (Haydu) is dictated by “ordinary principles of contract law and agency.” Stalley, 44 So.3d at 630 (quoting Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, Inc., 778 So.2d 1089, 1090 (Fla. 4th DCA 2001)). As explained by the court in Stalley:

An agency relationship can arise by written consent, oral consent, or by implication from the conduct of the parties. See Thomkin Corp. v. Miller, 156 Fla. 388, 24 So.2d 48, 49 (1945). An agency by implication, or apparent agency, arises only when there has been (1) a representation by the principal that the actor is his or her agent, (2) reliance on that representation by a third party, and (3) a change in position by the third party in reliance on that representation. See Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla. 1995).

Id.

Although Appellants presented evidence suggesting that Haydu was acting as Yongue’s agent when she signed the admissions agreement, there was also evidence before the court that: (1) Yongue did not sign this agreement, (2) Haydu was not authorized by nor did Yongue give his consent to Haydu to execute this agreement on his behalf, (3) Haydu specifically advised Appellants that she had no authority to sign documents on behalf of Yongue, and (4) Buzón has no independent recollection of either Yongue or the execution of the admissions agreement. The trial court specifically found that the admissions agreement “was not explained to Mr. Yon-gue nor was his consent requested” and that no legal authority had been given by him to Haydu to make decisions regarding arbitration. “[Wjhen there has been no representation of authority by the principal, no apparent or implied agency arises,” and “[tjhe acts of the agent, standing alone, are insufficient to establish that the agent is authorized to act for the principal.” Id. (citing Smith v. Am. Auto. Ins. Co., 498 So.2d 448, 449 (Fla. 3d DCA 1986) (additional citations omitted)).

Thus, while the trial court’s order analyzed the evidence in the context of the lack of a power of attorney, rather than the existence of an agency relationship between Yongue and Haydu, there is sufficient record evidence that supports the court’s express finding in the appealed order that no binding arbitration agreement exists. Cf. Sovereign Healthcare of Tampa, LLC v. Estate of Yarawsky, ex. rel. Yarawsky, 150 So.3d 873, 876-78 (Fla. 2d DCA 2014) (holding that an arbitration provision included in a resident admission and financial agreement was not enforceable against the resident’s estate where the resident did not sign the agreement and the resident’s wife, who signed the agreement only in her capacity as the responsible party, did not have the authority to sign the agreement on her husband’s behalf); see also Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (stating that the “tipsy coachman” doctrine “allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record’ ” (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla. 1999))).

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

      . Yongue's dominant arm and hand were immobilized in a cast due to injuries he had sustained in an earlier fall.

      . Buzon's position was renamed to Director of Guest Services.

      . Chapter 682, Florida Statutes (2015).

      . Yongue eventually gave Haydu power of attorney to act on his behalf, but this occurred well after Yongue left the nursing home.


author: SILBERMAN, Judge.

text:
    Carol Jordan DELISSER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5648
    District Court of Appeal of Florida, Second District.
    Opinion filed January 27, 2017.
    Joseph Thye Sexton, Assistant Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SILBERMAN, Judge.

Carol Delisser seeks review of her judgment and sentences for false verification of ownership to a pawnbroker and dealing in stolen property. We affirm the judgment and sentences but remand with directions for the court to correct a scrivener’s error on the written judgment and order of probation. The information, jury instructions, and verdict form reflect that Delisser was charged, found guilty of, and sentenced for false verification of ownership to a pawnbroker in violation of section 539.001(8)(b)(8)(a), Florida Statutes (2014). However, the judgment and order of probation reflect a conviction for false verification of ownership to a secondhand dealer in violation of section 538.04(4)(a), Florida Statutes (2014). These two documents must be corrected to reference the correct crime and section 539.001(8)(b)(8)(a).

Affirmed and remanded.

CRENSHAW and SALARIO, JJ., Concur.


text:
    Gina D. HELLER a/k/a Gina Heller, Appellant, v. BANK OF AMERICA, NA, successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing LP, Appellee.
    Case No. 2D14-3530
    District Court of Appeal of Florida, Second District.
    Opinion filed January 27, 2017.

      Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellant.
    Clive N. Morgan, Jacksonville, and Bryan S. Kessler of Law Offices of Bryan S. Kessler, P.A., Venice, for Appellee.
   SILBERMAN, Judge.

After a bench trial, Gina D. Heller appeals a final judgment of foreclosure in favor of Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing LP (the Bank). Two issues require discussion. First, because the trial court erred in admitting a copy, rather than the original, of the promissory note into evidence over an objection based on the best evidence rule, we reverse the final judgment and remand for a new trial. Second, we address the trial court’s error in allowing inadmissible hearsay when the Bank’s representative testified based on business records that were not admitted into evidence.

In its complaint for foreclosure, the Bank alleged that Federal National Mortgage Association (Fannie Mae) owned the note. The Bank alleged that it was the servicer of the loan, the holder of the note, and authorized by Fannie Mae to bring the action. Attached to the complaint is a copy of the note with the lender listed as Bank of America, N.A. The copy of the note contains an undated, blank endorsement by Bank of America, N.A. Heller filed affirmative defenses, and in one of her defenses she asserted that the Bank could not produce the original note that allegedly obligated her and “dispute[d] that any document now or hereafter filed with this Court is the original Note and demands strict proof thereof.”

At trial, the Bank offered a copy of the note into evidence. Defense counsel objected pursuant to section 90.953, Florida Statutes (2014), commonly known as the best evidence rule, because the note was a copy rather than the original. The Bank’s counsel made an unsworn representation that the original had been submitted to the clerk’s office several days earlier for filing. Defense counsel asserted that it was necessary to submit the original for review by the trial court as the trier of fact. The trial court stated that because the original had been filed with the clerk, the copy would be received into evidence. Defense counsel asserted prejudice by the original not being present in the courtroom because he had observed in other cases instances where the notice of filing the original actually attached a copy.

The trial court advised defense counsel that the clerk was in the building and that counsel had the opportunity to go look at the documents himself. The court added that it assumed that counsel had waived his right to do so. Defense counsel persisted that he had not waived his right for the trier of fact to review the original note.

One representative of the Bank testified at trial. He testified that the copy of the note he reviewed did not indicate when the endorsement was made or when the Bank had taken possession of the note. Bank of America, N.A., originated the note but sold it at some point to Fannie Mae as an investor. He said the sale “absolutely” would have been sometime before the lawsuit was filed. The representative admitted that he did not have any evidence as to the location of the note when Fannie Mae took ownership or while the Bank’s predecessor, BAC Home Loans Servicing, LP, serviced the loan.

During his testimony the representative was asked who owned the note and who serviced the note. The representative stated that based on his employer’s business records, including “custodial” records, the Bank was the servicer of the loan and Fannie Mae had a beneficial interest in the note as the investor. Based on these records, the representative stated that “the original note was lent by Bank of America” and that he believed the original note was placed in a Bank of America vault “two days after origination.” Defense counsel objected to the admission of this hearsay testimony, asserting that the Bank failed to lay any foundation for this testimony and that the alleged business records were not in evidence or otherwise before the court. The trial court overruled defense counsel’s multiple hearsay objections and allowed the testimony.

At the close of the Bank’s evidence, defense counsel moved to dismiss the case based on the insufficiency of the evidence pursuant to Florida Rule of Civil Procedure 1.420(b). Among other things, counsel argued that the Bank failed to introduce sufficient evidence that it possessed the original note, in violation of section 90.953, and that the Bank failed to introduce sufficient evidence of when the endorsement was placed on the note. The trial court denied the motion on these grounds and entered judgment in favor of the Bank.

Although a trial court’s decision on the admissibility of evidence is reviewed for an abuse of discretion, that discretion is limited by the rules of evidence. See Sottilaro v. Figueroa, 86 So.3d 505, 507 (Fla. 2d DCA 2012). We apply a de novo standard of review to the extent that the trial court’s ruling is an interpretation of the evidence code and case law construing the code. See id.

The Florida Evidence Code provides that an original of a writing is required to prove the contents of the writing, unless otherwise provided by statute. § 90.952. Section 90.953 allows for the admission of a duplicate “to the same extent as an original” unless certain exceptions apply. The exception relevant here is when the document is a negotiable instrument, See § 90.953(1). A promissory note is a negotiable instrument, see Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013), and thus the evidence code requires that the original be produced at trial, see § 90.953(1); see also Fair v. Kaufman, 647 So.2d 167, 168 (Fla. 2d DCA 1994) (recognizing that in a foreclosure action the original promissory note must be introduced into evidence at trial “.or a satisfactory reason must be given for failure to do so”). Further, section 702.015(4), Florida Statutes (2014), requires that the original note be filed with the court before entry of a foreclosure judgment or a judgment on the note.

Because a promissory note is a negotiable instrument, it is necessary to surrender the original note to remove it from the stream of commerce and prevent the negotiation of the note to another person. See Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So.3d 58, 61 (Fla. 4th DCA 2012); Perry v. Fairbanks Capital Corp., 888 So.2d 725, 727 (Fla. 5th DCA 2004). In addition, “possession of the original note is a significant fact in deciding whether the possessor is entitled to enforce its terms.” Clarke, 87 So.3d at 61.

The Bank argues that Clarke supports an affirmance, but Clarke is distinguishable. In that case, the bank provided a copy of the note at trial because “[t]he original note had been filed with the clerk of court and was in the court file in preparation for an earlier scheduled summary judgment hearing.” Id. at 59. Although the defense did not make a contemporaneous best evidence objection, it did argue at the close of evidence that the bank had failed to prove a prima facie case because it did not present the original note as evidence, Id. at 60. The Fourth District held that the bank “satisfied the requirements of the best evidence rule and Florida case law by having surrendered-the original note to the court file prior to the time it offered the copy in evidence at trial.” Id. at 59. In doing so, the court concluded that because there was no dispute that the copy and the original note were precisely the same and that the original had been surrendered to the court file, the trial judge’s admitting the copy into evidence “was tantamount to taking judicial notice that the note had been surrendered to the court file and that the rationale underlying the best evidence rule was satisfied.” Id. at 62.

In contrast, Heller disputed in her affirmative defenses that the Bank could produce the original to file with the court. There was nothing more than the representation of counsel to establish that the original had indeed been surrendered to the clerk of court and no indication that the trial court had made a comparison of the copy to the original. Moreover, the trial court’s suggestion that defense counsel visit the clerk’s office to verify that the original had been filed cannot be said to be “tantamount to taking judicial notice that the note had been surrendered to the court file.” Id.

The parties did not stipulate that the document in the court file was, in fact, the original note. Without a stipulation by the parties, the trial court cannot rely on an unsworn statement of counsel to make a factual determination. Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So.2d 838, 840 (Fla. 2d DCA 1994). And neither a trial court nor an appellate court can consider as fact an unproven statement that is documented only by counsel. Id.; see also Deutsche Bank Nat’l Trust Co. v. Huber, 137 So.3d 562, 564 (Fla. 4th DCA 2014) (stating that the court could not make a leap of faith that a note surrendered to the clerk was the original when such a determination was not supported by the record before it in which only a copy of the note was admitted in evidence).

The Bank, as the proponent of the evidence, failed to carry its burden of proof. See Mazine v. M & I Bank, 67 So.3d 1129, 1131-32 (Fla. 1st DCA 2011). The trial court had before it only the copy of the note and counsel’s unsworn statement as to the filing of the purported original note. Because the trial court improperly admitted the copy of the note over objection in violation of section 90.953(1), we reverse and remand for a new trial. See Sas v. Fed. Nat’l Mortg. Ass’n, 112 So.3d 778, 780 (Fla. 2d DCA 2013) (reversing when evidence was improperly admitted over objection to prove the amount of the debt and remanding for further proceedings to properly establish amounts due and owing).

In addition, we address the trial court’s admission of hearsay testimony by the Bank’s representative. Without personal knowledge, the representative testified regarding when the Bank possessed the note based on business records that were not introduced into evidence. The trial court improperly allowed the Bank’s representative to testify over a hearsay objection to the contents of business records that had not been admitted into evidence. See Sas, 112 So.3d at 779.

Accordingly, we reverse the final judgment of foreclosure and remand for a new trial.

Reversed and remanded.

SLEET and SALARIO, JJ., Concur.


text:
    Norris PALMER, Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D16-2955
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 31, 2017
    Norris Palmer, Live Oak, pro se.
    Barbara Debelius, Tallahassee, for Ap-pellee, Department of Corrections.
    No appearance for Appellee, State of Florida.
   PER CURIAM.

AFFIRMED. See Edwards v. Crews, 124 So.3d 422, 423 (Fla. 1st DCA 2013).

PALMER, ORFINGER and EVANDER, JJ., concur.


text:
    Karen Lee CHAGNON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2813
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 31, 2017

      James S. Purdy, Public Defender, and Glendon George Gordon, Jr., Assistant Public Defender, Daytona Beach, for Appellant.
    Karen Lee Chagnon, Ocala, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Moore v. State, 882 So.2d 977 (Fla. 2004).

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


text:
    IN the INTEREST OF B.K., a child. S.K., Petitioner, v. K.K., Department of Children and Families, and Guardian Ad Litem Program, Respondents.
    Case No. 2D16-4542
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2017.
    S.K., pro se.
    Mary Jennifer Arena and Cynthia Lake-man of the Law Offices of Cynthia Lake-man, P.A., Tampa, for Respondent K.K.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mary Soorus, Assistant Attorney General, Tampa, for Respondent Department of Children and Families.
    Matthew C. Wilson, Sanford, for Respondent Guardian ad Litem Program.
   PER CURIAM.

Dismissed in part and denied in part.

CASANUEVA, KELLY, and SLEET, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Fannye WILSON, Appellant, v. CITY OF TAMPA, Appellee.
    Case No. 2D15-3953
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2017

      Thomas A. Burns of Burns, P.A., for Appellant.
    Julia C. Mandell, City Attorney, and Kristin Serafín Ottinger, Assistant City Attorney, City of Tampa, for Appellee.
   CASANUEVA, Judge.

Fannye Wilson challenges the trial court’s order dismissing with prejudice her complaint against the City of Tampa (hereinafter “the City”). The trial court determined that prior to the commencement of her civil action, Ms. Wilson failed to comply with the statutory requirement of pre-suit notice demanded by section 768.28(6), Florida Statutes (2011). Ms. Wilson advances two contentions of trial court error: first, the trial court erred as a matter of law by determining that her presuit notice did not comport with the requirements of section 768.28(6) and, next, should this court conclude that the trial court did not err, its subsequent dismissal of her action with prejudice was an abuse of discretion and therefore error.

We conclude that Ms. Wilson’s first contention is meritorious and hold that the trial court erred in its conclusion of noncompliance. Accordingly, it is unnecessary to reach the second contention’s merits.

I. FACTUAL BACKGROUND

Ms. Wilson filed suit against the City on March 12, 2015, alleging that on April 7, 2011, she was picking up trash in her yard at 1420 Jean Street' in Tampa when a storm drain in the custody and control of the City suddenly and unexpectedly broke, causing her to fall into the sewer and become seriously injured.

Importantly, Ms. Wilson’s complaint asserted that she properly filed the notice of claim as required by section 768.28. Through a motion to dismiss, the City challenged this assertion, contending the statutory notice requirement had not been met. The City claimed the notice was deficient in three respects: first, it did not provide a specific address for the storm drain’s location; second, it did not state the time the incident occurred; and, finally, the notice failed to properly address the sex of Ms. Wilson. At the hearing on the motion to dismiss, the City abandoned the latter two bases of the motion. Therefore, the issue in this appeal is whether the notice was insufficient due to its failure to specify an exact street address.

II.NOTICE OF CLAIM

Before instituting her action, on March 30, 2012, Ms. Wilson provided a written notice of claim by certified mail to the City’s Risk Management Department. The notice provides her name, date of birth, and other identifying information. It also states that Ms. Wilson was injured when she was “clearing grass out of the yard,” she stepped on a storm drain grate, and the grate broke. Regarding the location of the accident, the notice states:

“Place of Accident: Jean St., Tampa, Hillsborough County, FL on 4/7/2011.”

III.SECTION 768.28

Section 768.28 is entitled, in part, “Waiver of sovereign immunity” and provides the process by which a sovereign may be sued for damages. Particularly, section 768.28(6)(a) provides:

An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, .., within 3 years after such claim accrues and ... the appropriate agency denies the claim in writing ....

It is not disputed that notice was provided in a timely manner in writing to the City. Rather, it is the sufficiency of the written notice that is at issue.

IV.STATUTORY CONSTRUCTION

When interpreting legislative waivers of sovereign immunity, courts must strictly construe such waivers. Metro. Dade Cty. v. Reyes, 688 So.2d 311, 313 (Fla. 1996). The polestar that guides our analysis regarding the construction and application of a statute is legislative intent. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013). “Our statutory analysis begins with the plain meaning of the actual language of the statute, as we discern legislative intent primarily from the text of the statute.” Id.

The actual language of the statute, pertinent here, is the requirement that the “claimant presents the claim in writing.” No other express requirement is demanded by subsection (6)(a). The plain language of the statute requires that written notice of a claim be given. This court has held that “at a minimum, the written notification must contain language notifying the agency of a claim; that is, a demand for compensation for an injury.” Smart v. Monge, 667 So.2d 957, 959 (Fla. 2d DCA 1996). Here, the notice does not lack a claim for compensation nor does the City assert the same is lacking.

This court also noted in Smart that “the statute lacks specificity as to what is required to present a notice of claim.” Id. This lack of specificity was again recognized in LaRiviere v. South Broward Hospital District, 889 So.2d 972, 974 (Fla. 4th DCA 2004). As of this date, no amendment to the statute has been enacted to elaborate further the requirements of notice and, therefore, we conclude the legislature has said what it meant and meant what it said. In accordance with the requirement that strict compliance with the statute is required, Vargas v. City of Fort Myers, 137 So.3d 1031, 1034 (Fla. 2d DCA 2014), we hold that to strictly comply with the statutory notice demanded of section 768.28(6)(a), two express requirements must be met. First, the claim must be in writing, and second, it must assert a claim for compensation.

Therefore, in accordance with the plain language of the statutory text, we hold that Ms. Wilson’s Notice of Claim has satisfied the two statutory requirements.

V. PREVIOUS INTERPRETATIONS OF SECTION 768.28

We would be remiss if we did not observe that over the years appellate case law has sought to give body to the legislative skeleton. This court in Vargas observed that “[t]he notice ‘must be sufficiently direct and specific to reasonably put the department on notice of the existence of the claim and demand.’ ” Vargas, 137 So.3d at 1034 (quoting LaRiviere, 889 So.2d at 974). The occurrence should be described so that the defendant may investigate the claim. Id.

However, the lack of a precise address does not render the presuit notice defective. In Otero v. City of Hialeah, 731 So.2d 116, 117 (Fla. 3d DCA 1999), for example, the Third District stated, “[I]t is of no moment that the address on the notice, the Immaculate Conception Catholic Church, was not the precise location of the incident; rather, the incident occurred in front of the Immaculate Conception School.” This notice, the court determined, was sufficient to permit the City of Hialeah to investigate or to request more information.

In Otero, relying on Magee v. City of Jacksonville, 87 So.2d 589, 591-92 (Fla. 1956), the court noted that a strained construction of the statute ought not to be used to preclude a claim. 731 So.2d at 117. “[T]he imposition of requirements for minute detail” is not required by the state. Id. (quoting Magee, 87 So.2d at 592). In summary, decisional law requires that the notice be reasonable and that it must be substantially compliant with the statutory purpose. Here, we conclude both were met.

Reversed with directions to reinstate the action.

SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: KELLY, Judge.

text:
    Nick DILORENZO and Cheryl Dilorenzo, Appellants, v. Kevin LAM, D.P.M. and Family Foot and Leg Center, Appellees.
    Case No. 2D15-2122
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2017
    Scott S. Liberman, Sean F. Thompson, and Kelley B. Stewart of Krupnick Campbell Malone Buser Slama Hancock Liber-man, P.A., Fort Lauderdale, for Appellants.
    Pamela R. Masters and Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, for Appellees.
   KELLY, Judge.

Nick and Cheryl DiLorenzo appeal from the nonfinal order compelling arbitration of their medical malpractice claims against Kevin Lam, D.P.M. We agree with the DiLorenzos that the arbitration agreement at issue is unenforceable because, as explained by the supreme court in Franks v. Bowers, 116 So.3d 1240, 1248 (Fla. 2013), it “seeks to enjoy the benefits of the arbitration provisions under the [Medical Malpractice Act]” without adopting all its provisions. Specifically, as did the agreement in Franks, the agreement here incorporates the statutory cap on damages without also adopting the concession of liability provision of the Act. Further, for the same reasons Franks concluded the provision at issue in that case was not severable, we conclude that the provision here is likewise not severable. See id. at 1248-49. Accordingly, we reverse the order compelling arbitration and remand this case to the trial court for further proceedings.

Reversed and remanded.

WALLACE and SALARIO, JJ., Concur.

      . See chapter 766, Fla. Stat. (2014).


author: KHOUZAM, Judge.

text:
    STATE of Florida, Appellant, v. Edward DRAKE, Appellee.
    Case No. 2D14-4916
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Gillian N. Leytham, Assistant Attorney General, Tampa, for Appellant.
    Jeanine L. Cohen of Cohen & DePaul, P.A., Tampa, for Appellee.
   KHOUZAM, Judge.

The State appeals the circuit court’s order discharging Edward Drake on speedy trial grounds. We affirm. We write only to explain why the State is not entitled to a recapture period under Florida Rule of Criminal Procedure 3.191(p)(3).

The record shows that the 175-day speedy trial period began when Drake was arrested on May 23, 2013, and therefore ended on November 14, 2013. The State filed the information on June 6, 2013, within the speedy trial period. But upon filing, the information was immediately sealed by the Clerk’s office. Neither Drake nor his counsel could access the information. Drake was still in custody at the time. Several pretrial hearings were held, making the State aware that Drake was in custody. Yet Drake was not notified that the information had been filed. Indeed, defense counsel stated that she checked the docket for it on a weekly basis, to no avail. She and Drake did not become aware that it had been filed until it was unsealed in open court on December 3, 2013, after the speedy trial period had already expired. Drake moved for discharge because he had not been brought to trial within the speedy trial period as required by rule 3.191(a). The State sought a recapture period under rule 3.191(p)(3). The trial court correctly granted Drake’s motion and found that the State was not entitled to a recapture period.

It is well established under Florida law that the State is not entitled to a recapture period if it fails to file charges until after the speedy trial time has run. See State v. Williams, 791 So.2d 1088, 1091 (Fla. 2001); State v. Clifton, 905 So.2d 172, 176 (Fla. 5th DCA 2005). In other words, “the [S]tate may not circumvent the purpose and intent of the speedy trial rule by ... taking no action after the defendant is arrested and waiting until after the speedy trial period has expired to file formal charges.” Clifton, 905 So.2d at 176. This is because, under these circumstances, “the [S]tate has essentially abandoned the prosecution and the recapture provisions of the rule do not apply, with the result that the defendant must be discharged.” Id.

This rule has been applied to require immediate discharge where actions of the State and the Clerk’s office combine to give the defendant the misimpression that the prosecution had been abandoned. In Puzio v. State, 969 So.2d 1197 (Fla. 1st DCA 2007), a series of miscommunications between the State Attorney’s office, the Clerk’s office, and the defendant’s attorney misled the defendant into believing that the charges against him had been dropped. The First. District noted that “[w]hile neither the State nor the Clerk’s office may have intended to mislead the defendant or conceal information from him, the fact remains that this is what happened.” Id. at 1201. To allow the State a recapture period in this situation would eviscerate the speedy trial rule because “[njotifying a defendant that charges have been filed against him is essential, not only to his due process rights, but to his ability to exercise his speedy trial rights.” Id. at 1202. Where a defendant could not have known that he needed to file a notice of expiration because the information was concealed from him, immediate discharge is appropriate. Id.; see also State v. McCullers, 932 So.2d 373, 375 (Fla. 2d DCA 2006) (“The State’s fight to recapture must be understood as linked to the defendant’s ability to exercise the right to file a notice of expiration when the 175-day period has run.’’).

Here, immediate discharge was appropriate, because the information was inaccessible to Drake during the speedy trial period and he was not notified of the charges against him until after the speedy trial period had already expired. Under these circumstances, he could not have known that he needed to file a notice, of expiration. Even though it was the Clerk, not the State, who sealed the information, the State .nevertheless was aware that Drake was in custody and failed to notify him that the information had been filed. And regardless of the intent behind the actions of the Clerk and the State, the result was the same: the information was concealed from Drake. To allow the State a recapture period on these facts would defeat the purpose of rule 3.191.

We also note that this case is factually distinguishable from State v. Devard, 178 So.3d 41 (Fla. 2d DCA 2015), and State v. McCullers, 932 So.2d 373 (Fla. 2d DCA 2006), on which the State relies. In those cases, this court held that the State was entitled to a window of recapture where the information had been filed within the speedy trial period but the defendant had not actually been notified until after the speedy trial period had expired. Devard, 178 So.3d at 44-45; McCullers, 932 So.2d at 376. But in both of those cases, the information was accessible to the defendants during the speedy trial period. They were not actually notified because they were not' in custody and the State had not located them. They became aware of the charges only when they were rearrested. Devard, 178 So.3d at 42-43; McCullers, 932 So.2d at 373-74. Here, in contrast, Drake could not access the information because it was sealed immediately upon being filed. His attorney was unaware that the information had been filed, even though she checked the docket for it on a weekly basis. And because Drake was in custody since May 23, 2013, he could have easily been located and notified before the speedy trial period expired on November 14, 2013, though regrettably he was not.

We conclude that the trial court was correct in finding that Drake was entitled to immediate discharge and the State was not entitled, to a recapture period.

Affirmed.

WALLACE and CRENSHAW, JJ., Concur.

      . The State claims that the trial court miscalculated the speedy trial period by starting from May 23, 2013. But the record shows that the State not only failed to dispute but affirmatively agreed that, for the purpose of speedy trial, Drake had been arrested on that date.


text:
    Ricky GIPSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4671
    District Court of Appeal of Florida, Second District.
    Opinion filed February 3, 2017
    Ricky Gipson, pro se.
   PER CURIAM.

Ricky Gipson appeals the order denying his motion to withdraw plea. We reverse and remand with directions to dismiss the motion for lack of jurisdiction.

Mr. Gipson pleaded guilty in two separate cases. The trial court entered judgments and sentences. Several days later, Mr. Gipson filed a notice of appeal. Thereafter, he filed a pro se motion to withdraw plea, asserting that his pleas were involuntary. See Fla. R. Crim. P. 3.170(l). The trial court summarily denied the motion, finding that no relief was warranted.

The trial court erred in denying the motion to withdraw plea; the notice of appeal divested the trial court of jurisdiction. See Mingo v. State, 914 So.2d 1070, 1070 (Fla. 2d DCA 2005) (“Because Mingo filed his pro se motion to withdraw plea after he filed his notice of appeal, the trial court was without jurisdiction to consider that motion.”); Wilson v. State, 814 So.2d 1203, 1204 (Fla. 2d DCA 2002) (“[B]y filing his notice of. appeal, Wilson divested the trial court of jurisdiction to enter any further rulings in the case, including a ruling on Wilson’s subsequently filed motion to withdraw his plea.”). By denying Mr. Gip-son’s motion, the trial court “inaccurately implied] that it entered a substantive ruling on the merits of the motion.” Mingo, 914 So.2d at 1070-71.

Accordingly, we reverse the order denying Mr. Gipson’s motion to withdraw his pleas and remand for the trial court to dismiss the motion for lack of jurisdiction. Our decision is without prejudice to any right Mr. Gipson may have to pursue timely relief under Florida Rule of Criminal Procedure 3.850. See Sharp v. State, 884 So.2d 510, 512 (Fla. 2d DCA 2004).

Reversed and remanded with directions.

NORTHCUTT, LaROSE, and SALARIO, JJ., Concur.


text:
    George HOGAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1191
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Gonzalez, 121 So.3d 625 (Fla. 4th DCA 2013) (holding prosecutor has discretion to charge defendant under general crime even though more specific crime exists).

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Zameena Zeenat BARSIS, Appellant, v. El Houcine BARSIS, Appellee.
    Case No. 5D16-2768
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 3, 2017
    Andrew F. Nickolaou, of Bernal-Mora & Nickolaou, Winter Park, for Appellant.
    El Houcine Barsis, Orlando, pro se.
   LAMBERT, J.

Zameena Zeenat Barsis (“Former Wife”) appeals a nonfinal “Order Regarding Custody and Support.” Concluding that this order was entered in violation of Former Wife’s right to due process, we reverse.

In July 2015, a final judgment was entered dissolving the marriage between Former Wife and El Houcine Barsis (“Former Husband”). The judgment ratified an agreed parenting plan submitted by the parties, which provided that they share the parental responsibility for all major decisions involving their three minor children. The parties agreed to an equal division of timesharing with their children, with the exchange of the children taking place each Sunday. Former Husband was also ordered to pay Former Wife $367 per month in child support.

In March 2016, Former Husband filed a motion asking the trial court to designate a specific location where the parties would exchange their children for timesharing. Former Husband alleged that the parenting plan did not specify the location of the parties’ exchange of their minor children, and due to a recent incident, he requested that the court enter an order directing that all future timesharing exchanges occur at the Family Ties, a facility that provides a monitored program for such exchanges. Former Husband set his motion for hearing, providing proper notice to Former Wife.

For reasons irrelevant to the resolution of this appeal, Former Wife failed to attend this hearing. The trial court thereafter entered the order on appeal, in which the court, upon its own motion, awarded Former Husband sole timesharing of the parties’ children and limited Former Wife’s contact with the children to “as allowed” by Former Husband. The court also abated Former Husband’s monthly child support obligation. Following the trial court’s denial of Former Wife’s motion for rehearing, this appeal ensued.

Former Wife argues that the trial court’s order 'violated her due process rights by significantly modifying her time-sharing with her children when the only matter scheduled to be addressed at the hearing was the location for the timeshar-ing exchange. We agree. “It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Golden v. Bass, 194 So.3d 1080, 1082 (Fla. 1st DCA 2016) (quoting Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003)). “A court violates due process when it ‘modifies visitation, changes primary residence, or alters child support when the notice of hearing does not include this issue.’ ” Id. (quoting Moody v. Moody, 721 So.2d 731, 734 (Fla. 1st DCA 1998)). Furthermore, no emergency was alleged by Former Husband in his motion necessitating the action taken by the trial court.

Accordingly, we reverse the order on appeal and remand this case to the trial court for further proceedings.

REVERSED and REMANDED.

TORPY and EDWARDS, JJ., concur.


text:
    Christopher J. CHESNEY, Appellant, v. JPMORGAN CHASE BANK, N.A., and Pennymac Corp., Appellees.
    Case No. 2D16-2830
    District Court of Appeal of Florida, Second District.
    Opinion filed February 3, 2017
    Matthew D. Ellrod of Matthew D. Ell-rod, P.A., New Port Richey, for Appellant.
    Nancy M. Wallace and Michael J. Larson of Akerman LLP, Tallahassee; and William P. Heller of Akerman LLP, Fort Lauderdale, for Appellee JPMorgan Chase Bank, N.A.
    No appearance for the remaining Appel-lee.
   PER CURIAM.

Dismissed as an appeal from a nonfinal, nonappealable order.

SILBERMAN, CRENSHAW, and SLEET, JJ., Concur.


author: WINSOR, J.

text:
    Chris HUDSON, Appellant, v. Darlene HUDSON, Appellee.
    CASE NO. 1D16-364
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017.
    Kerry Adkison, Chipley, for Appellant.
    John Y. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
   WINSOR, J.

In this dissolution-of-marriage appeal, we reverse the trial court’s award of past-due rent, but we affirm the trial court’s decision as to the majority time-sharing of the parties’ minor child.

I.

After their dissolution proceedings began, Chris and Darlene Hudson — then husband and wife — entered into a partial mediated settlement agreement. Among other things, the agreement provided that the wife “shall assume the exclusive ownership and possession of the marital home.” But despite the agreement, the husband continued to live with her in the marital home nearly four more years — all the way up until the final dissolution hearing.

At the final hearing, the wife asked the court to award her rent for the time the husband continued to live in the home. She testified that she had repeatedly asked him to move out, but that he had repeatedly refused. She said she had even turned to law enforcement seeking his removal, but to no avail. Testifying in response, the husband admitted he lived in the home but said she never asked him to leave. He insisted he owed no rent.

In its final judgment, the court held that the wife was “entitled to an award of reasonable rent” for the time the husband “resided in the home over [her] objection.” Accordingly, the court ordered the husband to pay the wife $23,500 ($500 per month x 47 months ) in four quarterly payments.

On appeal, the husband argues that the trial court never should have considered the rent issue because the wife failed to properly plead it. He correctly notes that the issue was not even raised until six days before the final hearing, when the wife filed an amended financial affidavit listing as a contingent asset the $23,500 in “[r]ent owed.” In a dissolution-of-marriage case, “an issue is properly before the court when it is raised in the pleadings or when it is raised and considered by the court without objection.” Clark v. Clark, 147 So.3d 655, 657 (Fla. 5th DCA 2014). Here, the wife never amended her petition to include a specific request for past-due rent, and her amendment to the financial affidavit was insufficient to put the issue before the court. Cf. id. at 657-68 (“Wife contends that the issues of alimony and attorney’s fees were listed in her pretrial compliance putting Husband on notice. However, this document is not a substitute for amending the complaint.”). Therefore, the trial court could consider the issue only if it was tried by express or implied consent. See id.; cf. also Burkhart v. Burkhart, 620 So.2d 225, 226 (Fla. 1st DCA 1993) (holding that trial court erred in awarding wife temporary spousal support because the wife’s motion “contained] no request for spousal support, nor [was] there any indication that the wife’s entitlement to same was tried by consent of the parties”).

Although the wife argues otherwise with some force, we are unconvinced that the rent issue was tried by consent. But we need not ultimately resolve that issue. Either way, the trial court should not have awarded rent. The wife’s only argument in support of her entitlement to unpaid rent was based on the parties’ settlement agreement, but that agreement does not obligate the husband to pay rent for the time he was there. While there are conceivable arguments supporting a damages award under these circumstances, cf., e.g., Kish v. McDonald’s Corp., 564 So.2d 1177, 1180 (Fla. 4th DCA 1990) (“[Reasonable rental value .... is a proper measure of damages where a trespass has occurred and the trespasser has refused to remove itself after notification by the owner.”), the wife did not raise them. On remand, the trial court should amend the final judgment to remove the $23,500 award.

II.

Next, the husband argues that the trial court erred in awarding the wife majority time-sharing of the parties’ minor child. He argues that there was insufficient evidence to support the trial court’s decision. We conclude, however, that the trial court properly considered all the necessary factors, relied on sufficient evidence, and did not abuse its broad discretion. Cf. Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003) (“It is well settled that a trial court has broad discretion in child custody matters, and its decision in that regard is reviewed for an abuse of discretion.”).

AFFIRMED in part, REVERSED in part, and REMANDED.

WINOKUR and JAY, JJ., CONCUR.

       The wife testified that she was requesting $23,500 and that $500 was a reasonable monthly rent. There was no other evidence about the rental value.


text:
    Joseph H. TEALE, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0093
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017
    Joseph H. Teale, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as untimely. See Fla. R. App. P. 9.141(d)(5).

This Court retains jurisdiction to address the imposition of sanctions.

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


text:
    Robert E. BANKS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0032
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017
    Robert E. Banks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

This court retains jurisdiction to address the imposition of sanctions.

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


text:
    Kent W. EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4506
    District Court of Appeal of Florida, First District.
    Opinion filed February 7, 2017
    Kent W. Edwards, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the November 25, 2014, judgment and sentence rendered in Santa Rosa County Circuit Court case number 2014-000022-CF-MXAX. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


text:
    Robert Aaron STEPHENS, Petitioner, v. WILMINGTON TRUST, NATIONAL ASSOCIATION, as Successor Trustee to Citibank, N.A., as Trustee for Bear Stearns Alt-A Trust 2007-2, Mortgage Pass-Through Certificates, Series 2007-2, Citibank, N.A., Successor in Interest to Citibank, Federal Savings Bank, Rosemary Beach Property Owners Associations, Inc., Unknown Parties in Possession # 1, Unknown Parties in Possession # 2, et al., Citibank, N.A., as Trustee for the Certificate Holders of Structured Asset Mortgage Investments II Inc., Bear Stearns Alt-A Trust, Mortgage Pass-Through Certificates, Series 2007-2, JP Morgan Chase Bank, National Association, mistakenly Identified as JP Morgan Chase & Company, and EMC Mortgage Corporation, Respondents.
    CASE NO. 1D16-2609
    District Court of Appeal of Florida, First District.
    Opinion filed February 10, 2017
    Daniel W. Uhlfelder, Santa Rosa Beach, for Petitioner.

      Michael E. Riley of GrayRobinson, Tallahassee; Elliot B. Kula, W. Aaron Daniel, and William D. Mueller of Kula & Associates, P.A., Miami, for Respondent Wilmington Trust, National Association, as Successor Trustee to Citibank, N.A., as Trustee for Bear Stearns ALT-A Trust 2007-2, Mortgage Pass-Through Certificates, Series 2007-2
    Amy A. Perry of Pleat & Associates, Destín, for Respondent Rosemary Beach Property Owners Association, Inc.
   PER CURIAM.

The petitioner has failed to demonstrate irreparable harm necessary to obtain cer-tiorari relief. As such, we lack jurisdiction, and the petition is dismissed. See generally, CQB, 2010, LLC v. Bank of N.Y. York Mellon, 177 So.3d 644, 645 (Fla. 1st DCA 2015) (citing Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454-55 (Fla. 2012)).

DISMISSED.

ROBERTS, C.J., WINOKUR and JAY, JJ., CONCUR.