author: WTNSOR, J.

text:
    LLANO FINANCING GROUP, LLC, Appellant, v. Theodore F. PETIT, Appellee.
    CASE NO. 1D16-3168
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017.
    Rehearing Denied November 30, 2017

      Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for Appellant.
    Roberto M. Ureta of Quintarios, Prieto, Wood & Boyer, PA, Miami, for Appellee.
   WTNSOR, J.

We must decide when the statute of limitations commences on a lender’s negligent appraisal claim. We hold that when a lender funds a loan relying on a faulty appraisal, claims based on that faulty appraisal and subject to section 95.11(3)’s four-year statute of limitations accrue immediately. We therefore affirm the trial court’s order dismissing appellant’s claims.

I.

Theodore Petit was an appraiser. His job was to provide real estate appraisals to lenders, who relied on appraisals in approving mortgage loans. Way back in 2004, Petit prepared an appraisal for a home on Jacksonville’s Autumn River Road. He valued that home at $216,000, and SunTrust Mortgage relied on that appraisal when it loaned $172,000 for the home’s purchase. That was the end of that, at least until nearly ten years later.

In 2014, Llano Financing Group, LLC (“Llano” for short) discovered it had been harmed by Petit’s 2004 appraisal. In the decade between the appraisal and this discovery, there were a few pertinent events. First, SunTrust sold the loan to an investment trust, which, through a series of transactions, effectively transferred to Llano claims related to the loan. Second, the borrower defaulted. Third, the investment trust filed a foreclosure action in 2011 and acquired a certificate of title in 2014. And finally, in 2014, it sold the property at a loss, then first realizing that it had suffered harm.

In 2015, Llano sued Petit, alleging that Petit’s appraisal undervalued the property, that SunTrust never would have made the loan but for the bad appraisal, that the investment trust never would have bought the loan but for the bad appraisal, and that Petit was therefore liable for any loss the investment trust suffered. Llano asserted claims of professional negligence, negligent misrepresentation, and false information negligently supplied for the guidance of others. Petit moved to dismiss, arguing that the statute of limitations precluded any such claims. The trial court granted the motion. This is Llano’s appeal.

II.

The relevant statute of limitations is four years. See § 95.11(3)(a), Fla. Stat. (2004) (providing four-year limitation for “[a]n action founded on negligence”). The separate two-year limitations period for most professional malpractice actions is inapplicable because it is “limited to persons in privity with the professional.” Id. § 95.11(4)(a). We reject Llano’s argument that the investment trust and appraiser were in privity as successors to SunTrust Mortgage, see Baskerville-Donovan Eng’rs, Inc. v. Pensacola Exec. House Condo. Ass’n, 581 So.2d 1301, 1303 (Fla. 1991) (holding that “‘privity’ as used in section 95.11(4)(b) means “direct contractual privity”), and we conclude that the four-year period applied to each of Llano’s claims. The question is when that four-year period began. If it began when Petit provided the appraisal or when SunTrust funded the loan, Llano’s suit is far too late. If it began at the foreclosure sale or later, Llano’s suit beats the deadline.

The legal starting point for a limitations period is the point “when the last element of the cause of action occurs.” Davis v. Monahan, 832 So.2d 708, 709 (Fla. 2002); see also § 95.031(1), Fla. Stat. (2004). Llano contends the last element of its causes of action—damages—did not exist until the property was sold at a loss, some ten years after the appraisal. There is some force to this argument; after all, if the borrower had repaid his loan as promised, the investment trust might have had no complaints about the appraisal—even if it had grossly undervalued the property. But although some courts have adopted Llano’s approach, see, e.g., Vision Mortg. Corp., Inc. v. Patricia J. Chiapperini, Inc., 307 N.J.Super. 48, 704 A.2d 97, 100 (N.J. Super. Ct. App. Div. 1998), aff'd, 156 N.J. 580, 722 A.2d 527 (1999), Florida law compels a different result.

As soon as the original home loan closed, SunTrust owned a loan secured by the home Petit appraised. The loan and mortgage had a value, and that value was “obviously based largely on the value of the real property [providing] the security for the note.” Kellermeyer v. Miller, 427 So.2d 343, 346 (Fla. 1st DCA 1983). If SunTrust made the loan relying on an undervalued appraisal, it was harmed when the loan closed: SunTrust essentially spent more on its new assets (the note and mortgage) than it should have. “This diminution in value, if proximately caused by the alleged negligence ..., supplied the damage element essential to the accrual of a cause of action.” Id.; accord TCF Nat’l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 710 (8th Cir. 2016) (“[F]rom the moment that TCF made a mortgage loan that it would not have made but for the inflated real estate value provided by Market, TCF held debts that were under secured.”).

It may well be that when the loan funded—when the cause, of action first accrued—the precise quantity of damages could not yet be determined. But that doesn’t matter because the general .rule “is that where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once.” Kellermeyer, 427 So.2d at 346 (quoting City of Miami v. Brooks, 70 So.2d 306, 308 (Fla. 1954)). There was an injury (again accepting the amended complaint’s factual allegations) when SunTrust funded the loan based on a faulty appraisal. Nobody had to wait for a foreclosure to address that injury. Cf. TCF Nat'l Bank, 812 F.3d at 710 (noting that “[i]f,‘ for limitation purposes, ‘some’ damage does not occur until foreclosure, a lender could be prevented from bringing suit for decades after realizing a value estimation it received was performed negligently”).

This situation is unlike those in the two Florida Supreme Court cases on which Llano principally relies. In Peat, Marwick, Mitchell and Company v. Lane, the court held that the limitations period for an accounting malpractice claim began not when an accountant gave bad advice but when the tax court entered judgment showing the advice was bad. 565 So.2d 1323, 1325-26 (Fla. 1990). Until the underlying tax-court proceeding was complete, there was no action for malpractice. Id. at 1326. In fact, “[ujntil the tax court determination, both the Lanes and Peat Marwick believed that the accounting advice was correct.” Id. It wasn’t that damages were uncertain; it was that the parties had to wait for the tax-court ruling to determine whether the accountant was negligent in the first place. Similarly, in Blumberg v. USAA Casualty Insurance Company, a homeowner’s claim alleging an insurance agent negligently failed to secure coverage did not accrue until the underlying dispute with the insurer was over. 790 So.2d 1061, 1065 (Fla. 2001) (applying Peat, Marwick). The agent maintained that there was coverage, so until the court determined otherwise, there was no cause of action. Id. Here, on the other hand, a court did not need to wait on any other litigation to discern whether Petit undervalued the home. That was as easily discernable in 2004 (indeed, probably more easily discernable) than in 2014. Accordingly, neither Peat, Marwick nor Blumberg. helps Petit here. See Peat, Marwick, 565 So.2d at 1327 (finding Kellermeyer distinguishable).

Finally, we address Llano’s argument that starting the clock at the time of funding is bad public policy. Llano suggests that our' 'holding “would encourage the filing of premature, unripe, and unnecessary lawsuits against appraisers” and “will inflexibly shield truly negligent appraisers” from" claims. But our job is not to say what the law should be—another branch of government ■ has that responsibility. The Legislature surely balanced various considerations in-enacting various limitations periods for various claims. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001) (“[Fjixed limitations on actions are predicated on public .policy and are a product of modern legislative, rather than judicial, processes.”); see also generally Ch. 95, Fla. Stat. (2004) (establishing limitations for periods ranging from one year to twenty). Llano’s preferred rule would leave' appraisers potentially on the hook for decades (imagine a foreclosure suit twenty-nine years into a thirty-year mortgage), and the Legislature might find such a rule inconsistent with the general purpose behind limitations periods. Major League Baseball, 790 So.2d at 1075 (noting that statutes of limitations “ ‘afford parties needed protection against the necessity of defending claims which, because of their antiquity, would place the defendant at a grave disadvantage’ ” (quoting Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976))). At any rate, if the Legislature seeks a new rule, it can enact one.

The statute of limitations began to run when SunTrust relied on the appraisal to fund the loan. That was in 2004, so Llano’s 2015 suit was far too late. The trial court correctly dismissed it.

AFFIRMED.

MAKAR, J., CONCURS; LEWIS, J., CONCURS IN RESULT.

      . We gather our facts from the amended complaint. Because we review the trial court’s order granting a motion to dismiss, we must accept all the well-pleaded facts as true. Locker v. United Pharm. Grp., 46 So.3d 1126, 1128 (Fla. 1st DCA 2010).

      . We recognize that in some instances, even a significant appraisal error may not affect the value of a mortgage or note. For example, if a $100,000 note is secured by a $2 million property that was negligently appraised at $5 million, a lender’s security—and therefore the value of the note—might not be meaningfully undermined. But those are not the facts alleged here.

      . Although it does not affect our decision, we note that the full extent of the damages perhaps could have been determined years ago. SunTrust sold its interest shortly after closing, as originating lenders frequently do. To the extent any negligent appraisal' reduced the market value of the note and mortgage, that could have been determined then. Consider this example: An appraiser negligently appraises a $100,000 house at $150,000. A buyer reasonably relies on that negligent appraisal and buys the $100,000 house for $150,000. The buyer’s damages ($50,000) are easily determined 'immediately after the sale. Those damages would be the same whether the buyer promptly sold the home at a loss, lived in it forever,' or sold it for $200,000 after decades of market appreciation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony R. BAKER, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0603
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Rehearing Denied November 28, 2017
    Anthony R. Baker-Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response'to the Court’s order of June 9, 2017, the Court has’ determined that the Order Denying Defendant’s Motions to Dismiss is not an appealable order. Fla. R. App. P. 9.140(b). Therefore, the Court lacks appellate jurisdiction. Furthermore, the Court declines appellant’s request to review the order by petition for writ of certiorari because appellant has failed to demonstrate that the ruling results in harm that cannot be remedied on appeal from a final judgment. Cf. Callins v. State, 747 So.2d 453 (Fla. 4th DCA 1999). Accordingly, the appeal is dismissed.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR. .


text:
    Kevin WALSH, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3419
    District Court of Appeal of Florida, First District.
    Opinion filed September 28, 2017.
    Rehearing Denied November 28, 2017

      Kevin Walsh, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ROBERTS, KELSEY, and JAY, JJ., CONCUR.


author: LEWIS, J. WINSOR, J.,

text:
    HEARTLAND EXPRESS, INC. OF IOWA, Appellant/ Cross-Appellee, v. Mark FARBER, as Limited Guardian of the Property of Juan Torres, Appellee/ Cross-Appellant.
    CASE NO. 1D15-1157/16-1356
    District Court of Appeal of Florida, First District.
    Opinion filed September 29, 2017
    Rehearing Denied November 28, 2017

      James H. Wyman, Hinshaw & Culbertson LLP, Coral Gables, for Appellant/Cross-Appellee.
    Dennis R. Schutt and Jeffrey D. Devon-chik of Schutt, Schmidt, & Noey, Jacksonville, for Appellee/Cross-Appellant.
   LEWIS, J.

Appellant, Heartland Express, Inc. of Iowa, appeals a final judgment entered in favor of Appellee, Mark Farber, as Limited Guardian of the Property of Juan Torres, and the trial court’s order granting a new trial. Appellant contends that the trial court erred in granting summary judgment on the issues of negligence and contributory negligence, in denying its motion for a directed verdict on the issues of negligent training and ratification, the grounds upon which Appellee sought punitive damages against Appellant, and in granting a new trial on the issues of wantonness and punitive damages. In his cross-appeal, Cross-Appellant/Appellee contends that the trial court erred in denying his motion for a directed vérdict ón the issue of wantonness and in denying his motion for attorney’s fees filed pursuant to Florida’s offer of judgment statute, section 768.79, Florida Statutes, For the following reasons, we reverse the order -granting a new trial but affirm the order denying Cross-Appellant’s fee motion. We otherwise affirm the final judgment without further, comment.

In 2007, Juan Torres filed a negligence action against Appellant in Florida,'alleging that Willie 'Jones, one of Appellant’s' drivers at the time, operated his tractor-trailer in a negligent manner when he collided with the disabled van in which Torres was a passenger while the van was being towed on a highway in Alabama. In June 2010, both sides filed a proposal for settlement upon the other party, neither of which was accepted, In July 2010, Appellant successfully moved for summary judgment as .to the issue of choice of law. Appellant asserted, and the trial court, agreed, that Alabama law should be applied to the issues of liability in the case given' that Alabama had the most' significant relationship with the parties. In 2014, Appellee moved in limine to limit the testimony of Trooper Jason Black, arguing that his deposition testimony was based exclusively on photographs of the accident scene that he could not verify, hearsay statements from unknown witnesses concerning-the actions taken -by Torres in the disabled van just prior to the collision with Jones, and a limited inspection of the scene where no measurements were taken and no accident reconstruction was performed. The trial court granted the motion in limine, setting forth in' part, “Should [Appellant] seek admission of such testimony, .it, must proffer the testimony at trial and establish the proper predicate for its admission under Alabama law.” Prior to trial, the -trial court ruled that while the issue of duty and breach of duty for purposes of the negligence claim had been decided through summary judgment, the issue of proximate causation would be decided-by the jury.

During trial, portions of the videotaped depositions of Mr. Jones, the tractor-trailer driver, were played for the jury. Jones described the accident, testifying that he first saw the van in which Mr. Torres was a passenger as the van, which was being towed by a pickup truck, was “[c]oming onto the interstate.” Jones, who had been traveling at .his top speed of sixty-three miles per hour when he first saw the slow-moving van, looked to the left but was unable to move into the left lane. He affirmatively responded when asked if he slowed down- a little, if he had nine-tenths of a mile to slow down but could not do so, and if- he thought he was in danger of getting into an accident with the van. Jones slammed on his brakes when he realized he was about to hit the van. When asked if he did not engage in “an emergency braking” until he was less than a car-length away from the van, he replied, “Correct, correct,” When asked- if he should have applied his brakes harder, he replied, “Yes, sir.” After the impact with the tractor-trailer, the van became disconnected from the pickup truck and hit a tree, causing injury to Torres.

Appellee later called Walter Ansel Kennedy, a forensics accident reconstructionist, who testified that Jones “could have applied light braking, moderate braking and 'heavy braking and been able to' decrease his speed from 60 to 45 ... at a point before the point of impact so that the tractor would not impact the van.” Kennedy saw no evidence that the individual who was driving the pickup truck that was towing the van did anything to cause the accident.

Appellant’s counsel later read portions of the deposition of Mark Lee Edwards, a human factors engineer, into evidence. Edwards testified that Jones’s “performance” matched what he would expect"'from an alert and attentive driver. He disagreed with any assessment that Jones failed to keep a safe and prudent “lookout.” .

After the trial court ruled that Trooper Black could testify as to his opinions' regarding the positioning of the vehicles pri- or to the accident, Appellant played the videotaped deposition of Black for the jury. Black, who was a road trooper when the accident occurred, was also a traffic homicide investigator/reconstructionist. Black went to the accident scene in order to assist another trooper. When asked if he had an independent recollection of the accident, he replied in part, “I remember going out there. I didn’t actually firsthand investigate the crash. When I arrived on scene, Trooper Lashley, he had a lot going on, so he asked me to take some photographs ... We also spoke with the people who were out there When asked if it was clear that Jones rear-ended the van in the van’s lane, Black testified that it appeared “from where [he] looked at it out there” that the van “snatched” or jackknifed prior to the collision with the tractor-trailer. He further testified:

As they were traveling along, if the van were to try to steer to this direction, if he was not connected, he would be able to steer away. But if you steer that way, it’s going to cause the front of the towing vehicle, the truck, to go out into the other lane. Then as the towing vehicle recorrects, that’s going to go ahead and it’s going [to] bring the back of the van out into the other travel lane, into the fast lane.

When asked where the impact occurred, Black replied, “I would have to go out there and look and .check the pictures and everything, but I believe it happened right there on the—just about on the dotted line, where the impact occurred.” After testifying that Trooper Lashley determined that the point of impact was in the slow lane, Black testified that, based upon his experience, that was “probably incorrect.” Black further testified that the van and pickup truck impacted one another prior to the collision with the tractor-trailer.

Following Black’s testimony, the trial court ruled that, “to be fair,” it would permit Appellee’s counsel, who “did not know about [the court’s] ruling as to Mr. Black ... until [the court] made it,” to call Walter Kennedy in rebuttal to testify “about the physical evidence of impact pri- or to collision with the tractor-trailer.” When later asked by Appellee’s counsel whether his analysis or any accident, photographs or evidence showed that there was any movement of the van and the pickup truck prior to the impact by the tractor-trailer, Kennedy replied, “No, sir; there were not.”

In ■ its verdict, the jury found that Jones’s negligence was a cause of the accident and Torres’s injuries and damages. The jury awarded Torres $888,417.57 for past and future medical and life care expenses and past and future pain and suffering. The jury found that Torres had not proven that Jones’s conduct was wanton. Given that finding, the jury did not determine, for purposes of awarding punitive damages, whether Appellant implicitly approved or ratified any wanton conduct on the part of Jones or whether Appellant used Jones’s services without proper instruction with a disregard for the rights and safety of others. -

Following entry of the final judgment, the trial court denied Appellant’s amended motion for judgment notwithstanding the verdict and for a new trial. It also denied Appellee’s motion for attorney’s fees, which was filed pursuant to the proposal for settlement filed by Appellee in 2010. The trial court found that the resolution of the case was controlled by Southeast Floating Docks, Inc. v. Auto-Owners Insurance Company, 82 So.3d 73 (Fla. 2012), in which the supreme court held that section 768.79 does not apply in situations where the parties have agreed to be governed by the substantive law of another jurisdiction. The trial court noted that the parties in this case had stipulated multiple times that Alabama law applied to the substantive issues in the case' and that Florida law applied to the procedural issues. The trial court also noted that several of the stipulations occurred after Southeast Floating Docks, Inc. was issued.

The trial court granted Appellee’s motion for new trial as to the issues of wantonness and punitive damages based upon its determination that it erred in allowing Trooper Black to testify without a proffer and without the necessary predicate, that Black’s testimony was impermissibly based upon his subjective beliefs and speculation, and that Black’s testimony unfairly and prejudicially surprised Appellee’s counsel. This appeal and cross-appeal followed.

The abuse of discretion standard of review is generally applicable to a ruling on a motion for new trial. State Farm Mut. Auto. Ins. Co. v. Williams, 943 So.2d 997, 999 (Fla. 1st DCA 2006). However, when a motion for new trial addresses issues of law, the standard of review is de novo. Id. In Bulkmatic Transport Company v. Taylor, 860 So.2d 436, 444 (Fla. 1st DCA 2003), we determined that because the trial court did not base its new trial order on a finding that the verdict was contrary to the manifest weight of the evidence, but instead based it upon four grounds that were essentially legal in nature, the trial* court was not entitled to the broad deference generally afforded to trial courts when they rule on a motion for new trial. We further set forth, “[A] trial court’s error in the acceptance or rejection of evidence does not necessarily constitute harmful error.... It is only ‘when a substantial right of the party is adversely affected that a trial court may grant a new trial on this basis.’” Id. at 447 (citation omitted). When a trial court is asked to grant a new trial on .the basis of evidentia-ry errors, the court, in essence, sits as an appellate court and “can only reverse itself if the error was substantially prejudicial.” Id. at 447-48.

Contrary to Appellant’s argument, the trial court was correct in determining that Trooper Black’s testimony should not have been admitted into evidence. Not only did Black testify that he did not “actually firsthand investigate the crash,” but also when he was later asked if he thought Trooper Lashley’s determination that the crash occurred in the “slow lane' basically” was incorrect, he replied, “Based on my experience, I would say it’s probably incorrect.” While Appellant relies upon Black’s statement that it' “appealed] from where [he] looked at it out there” that the van and pickup truck jackknifed, his answer was based upon the theory that Torres had steered the disabled van. Yet, any mention of Torres steering the vehicle came from statements made by unknown van occupants. Moreover, when ’he was asked if the impact occurred in the non-fast lane, Black testified, “I would have to go out there and look and check the pictures' and everything, but I believe it happened ... just about on the dotted line ....” As the trial court found in its order granting a new trial, Black’s testimony was primarily based upon hearsay and speculation and should have been ruled inadmissible. See Perez v. Bell S. Telecomm., Inc., 138 So.3d 492, 499 (Fla. 3d DCA 2014) (noting that under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), an expert’s subjective belief and unsupported speculation are inadmissible).

With that said, we agree with Appellant that admitting Black’s testimony did not substantially prejudice Appellee and entitle him to a new trial on the issues of wantonness and punitive damages. Under Alabama law, wantonness is defined as the “conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.” Ex parte Essary, 992 So.2d 5, 9 (Ala. 2007). While negligence is usually characterized as inattention, thoughtlessness, or .heedlessness, implicit in wantonness is a conscious act with knowledge of danger. Id. Black’s testimony had no relevance to the issue of wantonness. In arguing wantonness to the jury, Appellee’s counsel focused on Jones’s state of mind, while asserting that Jones never had the conscious intent that he needed to slow down. Specifically, counsel argued, “And that’s why we say Willie Jones was wanton. Willie Jones’ conduct was wanton because he knew there was a problem, he knew he had to take action, he knew,, if he didn’t take action, someone was going to get hurt.” Appellee’s counsel did not mention Black’s testimony in the context of wantonness, but instead argued that Black was not called to the scene to conduct an accident reconstruction.

Appellee contends on appeal that in light of the fact that Jones himself testified as to all of the elements of wantonness, “there really is no other explanation other than .Black’s theory as to why the jury- would come ‘to such an erróneous opinion, which was- contrary to the established facts ....” In our opinion, however, Appellee’s “explanation” is based upon speculation and conjecture as to why the jury found no wantonness on Jones’s part. It is entirely possible that the jury accepted Jones’s testimony as to what occurred but simply did not find that his actions rose to the level of a reckless or conscious disregard of the safety of others, especially given Appellant’s expert’s testimony that Jones acted as an alert and attentive driver would have. Had Jones testified that he.made no attempt to move into the left lane while knowing that he was quickly approaching a vehicle, the jury may have found that his conduct was wanton. It is not reasonable though to assume that it was Black’s testimony that led to the jury’s verdict on a lack of wantonness. Given that the testimony pertained to causation, an acceptance of such would have precluded a finding that Jones was a cause of the accident. Yet, the jury in this case did, in fact, make such a finding. 'While Appellee’s counsel may have been surprised that the trial court allowed Black’s deposition to be played, that surprise does not equate to substantial prejudice, particularly where the trial court permitted Ap-pellee to call Kennedy in rebuttal. Kennedy testified that nothing he saw in the evidence showed that either the pickup truck or the van moved prior to the accident, which contradicted Black’s testimony that the van and pickup truck jackknifed prior to the collision with the tractor-trailer. Because Appellee was not substantially prejudiced by the admission of Black’s testimony, he is not entitled to a new trial on the issues of wantonness and punitive damages. We, therefore, reverse the order granting a new trial.

■ Turning to the cross-appeal; Cross-Appellant contends that the trial court erred in denying his motion for attorneys’ fees filed pursuant to section 768.79(1), Florida Statutes, which provides:

In any civil action for damages filed in the courts of this state, if a ... plaintiff files a demand for judgment which is not accepted by the defendant ... and the plaintiff recovers a judgment in an amount at least 26 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. ■

In ruling that Cross-Appellant Was not entitled to fee's under section 768.79, the trial court correctly found Southeast Floating Docks, Inc. v. Auto-Owners Insurance Company, 82 So.3d 73 (Fla. 2012), controlling, Jn that case, the Florida Supreme Court answered in the negative the certified question of whether “section 768.79 applies] to cases that are governed by the substantive law of another jurisdiction and, if so, is this statute applicable even to controversies in which the parties have contractually agreed to be bound by the substantive laws of another jurisdiction.” The supreme court held that “because an award of attorney’s fees under Florida’s offer of judgment statute is a substantive right, section 768.79' will not apply in instances where the parties have agreed to be governed by the substantive law of another jurisdiction.” Id. at 81. Applying its holding to the facts of the case before it, the supreme court concluded that “Southeast” was not entitled to costs .and fees under section 768.79 “because Southeast and Auto-Owners have contractually agreed to be bound by the substantive laws of Michigan.” Id. at 82.

As for the stipulation itself in this case, Cross-Appellant argues that while a stipulation can be comparable to a contract in certain instances, both sides invoked section 768.79 when exchanging proposals for settlement in June 2010. According to Cross-Appellant, this exchange served as ■an acknowledgment by both sides that Florida law would govern the issue of attorney’s fees. The problem with this argument, however, is that the parties, according to the language used in multiple motions and memoranda filed after June 2010, stipulated that Alabama law would govern the substantive issues in the case. On appeal, Cross-Appellant acknowledges the stipulation' language and represents that it was unfortunate that “the erroneous language [concerning a stipulation] would ... be copied and pasted into various pleadings in the future by both [Cross-Appellee] and Torres ....” According to Cross-Appellant, the phrase “all substantive issues” as used in those various motions and memoranda should be interpreted to mean -issues of liability. However, the language used by Cross-Appellant’s counsel was not that narrowly tailored. Instead, Alabama law was to apply to the substantive issues “in the case.” We find it telling, as did the trial court, that Cross-Appellant’s counsel continued to use the same stipulation language after the issuance of Southeast Floating Docks, Inc., which made clear that attorney’s fees awarded under section 768.79 are substantive in nature. Based upon such, we affirm the trial court’s order denying Cross-Appellant’s attorney’s fee motio.n.

AFFIRMED in part; REVERSED in part; and REMANDED for the reinstatement of'the jury’s verdict on the issue of wantonness.

ROBERTS, J., CONCURS; WINSOR, J., CONCURS IN JUDGMENT WITH OPINION.

WINSOR, J.,

concurring in judgment.

Under the Alabama law applicable here, Heartland Express could be liable for punitive damages only if the plaintiff proved Heartland- Express either (i) “knew or should have known of the unfitness- of the [driver] and employed him or continued to employ him, or used his services without proper instruction with a disregard of the rights or safety of others,” or (ii) “ratified [its driver’s] wrongful conduct.” Ala. Code 6-ll-27(a). Because the plaintiff did not present evidence from which any reasonable jury could find in his favor on this issue, the plaintiff is'not entitled to a new trial on punitive damages, and we need not consider whether the trial court should have excluded the disputed testimony.

There was no evidence that Heartland Express knew or should have known of its employee’s purported unfitness to drive. The plaintiff did introduce evidence that Heartland Express subjected the driver to a written skills test it never bothered to grade. But an ungraded test does not .prove a driver’s unfitness, much less an employer’s knowledge of it.. Nor.is the accident itself sufficient to show Heartland Express knew or should have known of its driver’s unfitness before the accident.

As to ratification, the plaintiff contends Heartland Express ratified, the driver’s conduct by not properly investigating the accident, But to. show ratification, the plaintiff must show .that the employer “expressly adopted” or. “implicitly approved of’ the tortious conduct. See Mardis v. Robbins Tire & Rubber Co., 669 So.2d 885, 889 (Ala. 1995). Although in some circumstances Alabama law considers a party’s failure to investigate when evaluating the ratification issue, see, e.g., id., the facts of this case could not support a finding of ratification.

Once the accident occurred, there was nothing . Heartland Express could do to stop it. This was not a case where the employer’s action after the tortious conduct contributed to the harm or benefited the employer. Indeed, after the accident, Heartland Express took action by immediately suspending its driver, who never drove for Heartland Express again. Cf. Ex parte Atmore Cmty. Hosp., 719 So.2d 1190, 1195 (Ala. 1998) (“[Wjhere the specific tor-tious conduct stops after corrective action by the employer, [the. Alabama Supreme] Court has held that the corrective action is adequate as a matter of law.”); Joyner v. AAA Cooper Transp., 477 So.2d 364, 365 (Ala. 1985) (concluding that employer did not ratify sexual harassment when it told offending employee that another incident would result in dismissal and no further incidents occurred). Therefore, even if Alabama law required -Heartland Express to take corrective actions to avoid ratifying its driver’s conduct, Heartland Express did enough. It is unclear what more plaintiff would have had Heartland Express do.

Because the plaintiff presented no evidence to support an award of punitive damages, there was no need to grant a new trial on the issue of punitive damages. As to the issue of attorney’s fees, I agree with the majority: the parties stipulated that Alabama substantive law would apply to all issues, so the plaintiff cannot recover attorney’s fees under Florida’s substantive law.

       The supreme court disapproved of both BDO Seidman, LLP v. British Car Auctions, Inc., 802 So.2d 366 (Fla. 4th DCA 2001), and Bennett v. Morales, 845 So.2d 1002 (Fla. 5th DCA 2003), where the Fourth and Fifth Districts held that section 768.79 applied to all civil actions for damages brought in Florida "even where the substantive law of another jurisdiction is applied” and that section 768.79 mandated "the application of the statute irrespective of the parties’ choice of applicable substantive law,” 82 So.3d at 82. In BDO Seidman, LLP, the Fourth District explained that "the parties in the malpractice case had agreed that Tennessee law governed the case. 802 So.2d at 367. In Bennett, the Fifth District noted that the parties to the securities fraud case had agreed that the substantive law of Virginia applied to the case. 845 So.2d at 1004.

       This statute, which the parties agree controls, also provides for punitive damages if the employer authorized the wrongful conduct or, under certain circumstances, if the employee’s acts were calculated to or did benefit the employer. The plaintiff does not contend that those provisions apply here.


text:
    Brandon B. WILSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2740
    District Court of Appeal of Florida, First District.
    Opinion filed October 3, 2017
    Rehearing Denied November 29, 2017
    Brandon B. Wilson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR.


text:
    Ricky Paul LOMBARDI, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3903
    District Court of Appeal of Florida, First District.
    Opinion filed October 3, 2017
    Rehearing Denied November 29, 2017
    Ricky Paul Lombardi, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR.


text:
    James V. HARRELSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1471
    District Court of Appeal of Florida, First District.
    Opinion filed October 6, 2017
    Rehearing Denied November 28, 2017
    James V. Harrelson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits.

The Court notes that petitioner has unsuccessfully challenged the judgment and sentence in Bay County Circuit Court case number 95-0563-G ten times in this Court in case numbers 1D01-2522, 1D02-0986, 1D03-2167, 1D05-1599, 1D05-5251, 1D07-3830, 1D07-5005, 1D08-1328, 1D09-1066, and 1D10-2564. Petitioner is warned that any future filings that this Court determines to be frivolous may result in the imposition of sanctions, including a prohibition against any further pro se filings in this Court and a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2016) (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections). Fla. R. App. P. 9.410.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


author: OSTERHAUS, J.

text:
    Rachel D. DUKES, f/k/a Rachel D. Griffin, Former Wife, Appellant, v. Timothy R. GRIFFIN, Former Husband, Appellee.
    CASE NO. 1D16-4883
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017
    Rehearing Denied November 29, 2017
    Cynthia Stump Swanson of Swanson Law Center, P.A., Gainesville, for Appellant.

      Timothy R. Griffin, pro se; Appellee.
   OSTERHAUS, J.

In this family law case, Rachel D. Dukes appeals on multiple grounds a final judgment modifying primary residency and the terms of time-sharing with respect to the parties’ minor child. We affirm on all the issues, including the claim that the trial court committed reversible error by failing in the final judgment, to set forth specific steps by which Ms. Dukes might reestablish majority time-sharing for the child. Section 61.13(3), Florida Statutes, provides a way for parents like Ms. Dukes who are dissatisfied with a parenting plan’s time-sharing provisions to have them modified. Outside of satisfying the statute’s requirements, however, the law doesn’t authorize courts, much' less require them, to set forth another way, or other steps, for parents to'modify unsatisfactory time-sharing schedules. And so we affirm the final judgment below.

I.

After the parties in this case were divorced in 2010, they created their own parenting plan for their child, sharing parental responsibility. The child would primarily reside with Ms. Dukes, but spend' alternate weekends and some holiday and summer time with Appellee Timothy Griffin, the former husband. The next six years proved rocky for that parenting and timesharing plan. The parties petitioned the trial.court again-and-again' to resolve time-sharing issues, contempt motions, modification petitions, and the like. Among these filings, Mr. Griffin sought in March 2016 to have the trial court permanently award him majority tifte-sharing. This was after contempt orders had been entered against Ms. Dukes for failing to abide by the established time-sharing schedule and after the court had admonished Ms. Dukes that her failure to abide by the schedule could lead to a modification of the child’s primary residence and time-sharing schedule. The trial court held a hearing on Mr. Griffin’s modification petition and ultimately granted it. It found a substantial, material, unanticipated, and permanent change in the parties’ circumstances and that the child’s best interest (based on the factors listed in § 61.13(3), Florida Statutes) would be served by a change in primary residence and time-sharing arrangements. The court awarded shared parental responsibility. But flipping the script, it awarded primary residence and majority time-sharing to Mr. Griffin and pared Ms,Dukes’ time-sharing to weekends,, holidays, and summers. This appeal followed after the court denied Ms. Dukes’ rehearing, motion.

II.

The appellate court reviews the modification of a final dissolution of marriage judgment, including changes to primary residence and majority time-sharing, for abuse of discretion. See Jannotta v. Hess, 959 So.2d 373, 374 (Fla. 1st DCA 2007). In this case, we affirm on all the issues raised by Ms. Dukes’ appeal and write only to address her claim that the trial court committed reversible error by failing to set forth steps in the final judgment by which Ms. Dukes could reestablish majority time-sharing.

Ms. Dukes is correct that other district courts in similar modification cases have required trial courts to set forth specific steps and requirements by which a parent can restore reduced time-sharing and eliminate time-sharing restrictions. See, e.g., Perez v. Fay, 160 So.3d 459, 466-67 (Fla. 2d DCA 2015); Witt-Bahls v. Bahls, 193 So.3d 35, 38-39 (Fla. 4th DCA 2016). But we can find no statutory basis for requiring trial courts to do so. Ms. Dukes’ argument and the cases she identifies cite no underlying law requiring trial courts to enumerate steps for dissatisfied parties to re-modify time-sharing schedules, alleviate time-sharing restrictions, or regain primary residence and majority time-sharing. What is more, vesting authority in the courts to establish such steps appears contrary to § 61.13(3), Florida Statutes, which sets forth its own specific requirements for modifying parenting plans, including time-sharing schedules. The trial court below entered final judgment in accordance with this very statute. And it isn’t this court’s place to undercut the statute by introducing a parallel, judicially created process or means by which dissatisfied parents can require courts to re-modify a parenting plan or time-sharing schedule.

So here, for instance, Ms. Dukes can seek to modify the present plan, including the time-sharing schedule for her child, by filing a petition under § 61.13(3) and satisfying the statute’s conditions. This is exactly how Mr. Griffin had the previous parenting plan modified in this case. But short of filing such a petition and meeting the statute’s requirements, we cannot conclude that Ms. Dukes is owed a list of alternative steps, created ad hoc by the trial court, to facilitate her quest to reestablish majority time-sharing.

We recognize that our holding is at odds with some other district court cases. So we certify conflict with Perez, 160 So.3d 459, Witt-Bahls, 193 So.3d 35, and other cases addressing this issue.

III.

The final judgment 'entered below is AFFIRMED.

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

      , See, e.g., Whissell v. Whissell, 222 So.3d 594 (Fla. 4th DCA 2017); Davis v. Lopez-Davis, 162 So.3d 19, 21 (Fla. 4th DCA 2014); Grigsby v. Grigsby, 39 So.3d 453, 457 (Fla. 2d DCA 2010); Ross v. Botha, 867 So.2d 567, 571 (Fla. 4th DCA 2004). Some older cases also get cited as precedent for the rule discussed in this opinion, but address a different issue along the lines of.requiring that orders be specific and unambiguous when they impose time-sharing limitations. See, e.g., Hunter v. Hunter, 540 So.2d 235, 238 (Fla. 3d DCA 1989); Wheeler v. Wheeler, 501 So.2d 729, 730 (Fla. 1st DCA 1987); Beaman v. Beaman, 393 So.2d 19, 20 (Fla. 3d DCA 1980). These older cases do . not hold that final judgments modifying time-sharing arrangements must include court-specified steps for dissatisfied parents to regain more favorable terms.


author: DOUGLAS, WESLEY R., Associate Judge.

text:
    SILVER BEACH TOWERS PROPERTY OWNERS ASSOCIATION, INC., Silver Beach Towers East Condominium Association, Inc., and Silver Beach Towers West Condominium Association, Inc., Appellants, v. SILVER BEACH INVESTMENTS OF DESTIN, L.C., and The Club at Silver Shells, Inc., Appellees.
    CASE NO. 1D16-4555
    District Court of Appeal of Florida, First District.
    Opinion filed October 18, 2017.
    Rehearing Denied November 29, 2017

      Daniel M. Schwarz of Cole Scott & Kis-sane, P.A., Plantation, for Appellants.
    Philip J. Padovano and Joseph T. Eagle-ton of Brannock & Humphries, Tallahassee, and Bruce P. Anderson, Destín, for Appellees.
   DOUGLAS, WESLEY R., Associate Judge.

On appeal from the final judgment entered September 30, 2016, Appellants challenge the earlier order on cross-motions for partial summary judgment entered by the trial court on July 6, 2015, and determining liability, as well as the final judgment determining damages. As provided by article V, section 4(b)(1) of the Florida Constitution, and rule 9.110(h), Florida Rules of Appellate Procedure, this Court’s authority and scope of review includes review of the partial summary judgment.

Appellants assert reversible error in the trial court’s ruling that an amendment to the condominium declaration was invalid and that Appellants remained liable for certain assessments after that purported amendment. The trial court based its determination , on the finding that the amendment procedures used by Appellants violated the terms of the declaration and section 718.110(4), Florida Statutes. Because we reverse the partial summary judgment regarding the amendment and its effect on the duration of liability for the contested assessments, we need not address Appellants’ other challenges to the final judgment.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). “This court reviews both orders granting summary judgment and interpretations of condominium declarations de novo.” Shores of Panama Club, LLC v. Shores of Panama Resort Cmty., 204 So.3d 541, 543 (Fla. 1st DCA 2016). Because it “assumes some of the attributes of a covenant running with the land,” a declaration of condominium is more than a “mere contract spelling out mutual rights and obligations of the parties thereto,” and thus must be strictly construed. Id.

The declaration of condominium for the real properties owned'at the time by Silver Beach Investments of Destín, L.C., was filed in the Official Records of Okaloosa County on July 6, 2001. See §§ 718.104(2), 718.105, Fla. Stat. As defined in the declaration, appellee Silver Beach Investments of Destín, L.C., is the “Developer”; appellant Silver 'Beach Towers Property Owners Association, Inc., is the “Master Association”; and the other two appellants, Silver Beach Towers East Condominium Association, Inc. and Silver Beach Towers West Condominium Association, Inc., qualified as “Members.” Members were condominium associations “or the Developer,” and individual condominium unit owners were “Owners.”

The declaration governed the owners’ easements and rights- to enjoy “common properties” as defined in the declaration. In addition, article 2, section 2.9 of the declaration provided that each unit owner “shall automatically become a non-equity member of The Club at Silver Shells, Inc.” (the second appellee in this action). Unit owners were prohibited from terminating their .membership until the unit was conveyed to another owner, but the Club was authorized to terminate an owner’s membership without notice to the owners. Although the, Club property and facilities were not, contiguous to the condominium properties but were located approximately a mile away, section 2.9(a) stated that each unit owner’s “membership in the Club shall be appurtenant to the Unit upon which it is based.” Section 2.9 also provided that, unlike the common properties of the condominium, the clubhouse property would be retained by “Silver Shells Corporation and not conveyed to- the Master Association or the Owners at the time of Turnoyer.” And while the clubhouse property was “intended primarily for the benefit of the Owners and Occupants of Units,” Silver Shells Corporation was allowed to make the Club facilities “available to the general public.” Finally, section 2.9(d) provided that the Master Association was responsible for collecting the Club dues and fees payable by the unit owners and that the amount of dues and fees could be changed solely at the Club’s discretion without prior notice.

The date of “turnover,” as defined by the declaration in article l(y) and as described in section 718.301(4), Florida Statutes, was not definitively established. However, the parties agreed that by 2008 turnover from the Developer to the associations involved in this action had been completed. Accordingly, title to the common properties and control of Silver Beach Towers Property Owners Association, Inc., as the Master Association, had been conveyed to “the Members (other than the Developer)” by 2008. The Master Association’s duty to collect-the dues for Club membership remained, but, due to the turnover, the Board of Directors of the Association was made up only of Members (i.e., the condominium associations) and no longer included the Developer.

Beginning in 2008, members of the associations sought to end the mandatory Club membership and the attendant dues and fees required by article 2.9 of the declaration of condominium. On May 4, 2010, after notice had been posted and mailed to the current Directors, a special board of directors meeting of the Master Association, Silver Beach Towers Owners Association, was held, One director of the Master Association, who also represented Towers East Condominium Association, moved to adopt the proposed amendments to the declaration, and the motion was approved unanimously. Elimination of article 2.9 was one of the amendments. The Certificate of Amendment was executed on May Í8, 2010; filed in the public records of Okaloo-sa County on May 21, 2010; and mailed to each unit owner on May 28,2010.

On May 2, 2012, the Developer, Silver Beach Investments of Destín, L.C., and the separately incorporated The Club at Silver Shells, Inc., filed suit seeking to recover the Club dues and fees from the Associations, under the original declaration. In their responsive pleadings, the defendants (appellants here) asserted that the declaration had been amended as of May 2010 and that article 2,9 was no longer in force after the amendments took effect. The litigation progressed, and on October 31, 2014, the defendant associations filed their motion for partial summary judgment, based in part on the associations’ assertion that the declaration had been amended in 2010 to eliminate the mandatory Club membership provision. The plaintiffs also moved for summary judgment.

The trial court heard the cross-motions and considered the summary judgment evidence on June 8, 2015. The material facts regarding the amendment procedures taken by the associations and the language in the declaration and association by-laws pertaining to meetings and voting were not in dispute at the time of the motion hearing. Based on the undisputed material facts, the court denied the defendants’ motion and deemed the May 2010 amendments to the declaration invalid. The court found that the Club memberships were “appurtenances to the condominium units” and thus subject to section 718.110(4), Florida Statutes. Under that statute, amendments that materially modify or alter “the appurtenances to the unit” require approval of “all the record owners of all other units in the same condominium.” Because individual votes were not cast by.all condominium unit owner's, the court found against the associations as a matter of law on the validity of the'amendment.

In addition, the court found that the sufficiency of notice for the special meeting where the amendments were attempted presented a genuine issue of material fact because the Developer arid the Club denied ever receiving individual notice. The court relied on section 3.5 of the by-laws of the Master Association and section 13.8 of the declaration as authority for the Developer’s and the Club’s entitlement to notice of the special meeting.

Upon its' finding a genuine dispute of material fact as to the amounts owed, the court denied the plaintiffs’ motion for summary judgment in part but entered summary judgment “in Plaintiffs’ favor and against the defendants on the issue of liability of defendants for the Club Assessments .with further proceedings being necessary to determine the amount due for pre-amendment and post-amendment assessments remaining unpaid,” together with accrued interest, costs, and attorneys’ fees. The eventual final judgment was entered in amounts and for relief consistent with the trial court’s earlier partial summary judgment deeming the amendments to the declaration invalid.

The trial court’s summary judgment that the amendments to the declaration made in 2010 were invalid as a matter of law, pursuant to section 718.110(4), Florida Statutes, was a misapplication of law requiring reversal. First, the provision in section 2.9(a) of the original declaration that “[e]ach Owner’s membership in the Club shall be appurtenant to the Unit upon which it is based” does not establish that memberships in an off-premises, commercial fitness club in which neither the members nor the condominium associations have any ownership or management rights are “appurtenances to the unit” as that phrase is characterized in the law. A thing may be “appurtenant,” or annexed to something else, without qualifying as an “appurtenance to the unit.” The declaration in this case clearly provided that the Club memberships were “non-equity” memberships, not exclusively available to unit owners, terminable solely by the Club without cause or recourse of the member, and not “common elements” or “condominium property” as defined in' sections 718.108 and 718.103(13), Florida Statutes, While personal property may, in some cases, be subject to condominium ownership and thus constitute condominium property under section 718.103(13), Florida Statutes, the lack of any indicia of ownership by Club members in their Club privileges distinguishes this case from Downey v. Jungle Den Villas Recreation Ass’n, 525 So.2d 438 (Fla. 5th DCA 1988). The Club is not owned, controlled, or even affected by any input from the condominium unit owners or the associations that are parties to this litigation. Because the Club memberships in this case are not “appurtenances to the units,” as that term is legally defined, the unanimous approval of amendments modifying such appurtenances, as provided in section 718.110(4), Florida Statutes, does not apply.

Even if the amendments at issue were modifications or alterations of appurtenances to the units, section 718.110(4), Florida Statutes, would not invalidate the amendment action taken by the Master Association on May 4, 2010. The statutory requirement that all unit owners “approve the amendment” is inapplicable because section 718.110(4) is qualified by its own introductory phrase: “Unless otherwise provided in the declaration as originally recorded.” The declaration as originally recorded did otherwise provide for a detailed representative voting scheme for amendment of the declaration. Article 13.5 of the declaration provided for amendment of the declaration by “the affirmative vote or written consent of the Members holding not less than two-thirds (2/3) of the voting power of the Class A Membership of the Master Association together with the affirmative vote of the Class B Member (so long as the Class B Membership Exists).” At the time of the special Board of Directors’ meeting, Class B Membership (consisting only of the Developer) was no longer in existence due to the completion of turnover. Neither the Developer nor the Club presented any ■ summary judgment evidence that either of them was a condominium association within the development, as required to be a Class A member of the Master Association, or that the affirmative vote of the Class A members on May 4, 2010, did not comprise two-thirds of the voting power of the members.

The trial court’s denial of the defendants’ motion for partial summary judgment as a matter of law because the Master Association’s voting procedure on the amendments did not comply with section 718.110(4), Florida Statutes, was a misapplication of that statute.

The trial court also erred by denying the associations’ motion for partial summary judgment on the validity of the amendments based on its finding of a genuine issue of material fact regarding the sufficiency of notice of the Special Board of Directors’ meeting during which the amendments were passed. The facts surrounding the notice, including the Developer and the Club’s assertions (via Club owner and development company representative) that these companies did not receive individual notice of the meeting, were not in dispute. However, these facts were not material facts because section 3.5 of the By-Laws of the Master Association, as referenced by the trial court, required three days’ notice prior to a special meeting to be given, personally or by mail, to “each Director.”

There was no. summary judgment evidence that immediately prior to the May 4, 2010, special meeting, either the Club or the Developer were Directors of the Master Association. Further, to the extent the Club or the Developer had standing to challenge the sufficiency of notice to the Members of the Master Association (i.e., the condominium associations), the statement of the community association manager filed as summary judgment evidence (Exhibit H to defendants’ motion for partial summary judgment) was not contested and the posting of notice as described therein complied with section 3.7 of the By-Laws of the Master Association. Finally, while the declaration states that notices “required to be delivered” are to be in writing and “delivered” in person or by mail (article 13.8 of the declaration), article l(p) of the same declaration allows for “[njotice given in any other manner provided in the By-Laws of the Master Association.” The posting of notice of the Board action to the unit owners in the common areas comported with the By-Laws of the Master Association. The Developer and Club’s assertions that their representative did not receive personal advance notice of the meeting did not raise a question of material fact because no such personal advance notice to either company was required by the clear terms of the By-laws of the Master Association.

The trial court’s conclusion that the amendments to the declaration by the Master Association at its meeting on May 4, 2010, were invalid was a misapplication of law and not supported by the terms of the original declaration or the By-Laws of the Master Association. Accordingly, the partial summary judgment deeming the amendments to the declaration invalid as a matter of law, based on any issue of material fact pertaining to the amendment procedure, was error and is reversed. Because the final judgment determining the amount of damages depended in part on the partial summary judgment, the final judgment is also reversed and this cause is remanded for further proceedings to determine the proper amount of damages based on dues owed to the Club prior to the effective date of the amendments to the declaration.

REVERSED and REMANDED.

RAY and KELSEY, JJ., CONCUR.

      . "Club” was defined in the declaration, Art. 1(d), as "The Club at Silver Shells, Inc,, a Florida corporation controlled by Silver Shells Corporation, which owns, administers and operates the Club house Property at Silver Shells Beach Resort.” Silver Shells Corporation was not a party to the lawsuit below and is not a party to this appeal.

      . The proof of notice, minutes of this meeting, and by-laws of the Master Association requiring three days' notice to the directors of special meetings were all attached, as summary judgment evidence, to the defendants’ (appellants here) motion for partial summary judgment.

      . See Thiess v. Island House Ass'n, Inc., 311 So.2d 142 n.1 (Fla. 2d DCA 1975) (defining "an appurtenance”).

      . Section 3.7 of the By-Laws for Silver Beach Towers Property Owners Assoc., Inc. provided: “Adequate notice of all meetings of the Board shall be placed conspicuously on the Common Property at least forty-eight (48) hours in advance of the time set for the meeting except in the case of an emergency meeting.’’


author: Suarez, Associate Judge.

text:
    Robert JOSHUA, Petitioner, v. CITY OF FORT LAUDERDALE, Respondent.
    No. 4D17-968
    District Court of Appeal of Florida, Fourth District.
    October 18, 2017
    Robert Joshua, Doral, pro se.
    Cynthia A. Everett, City Attorney, and Bradley H. Weissman, Assistant City Attorney, Fort Lauderdale, for respondent.
    Suarez, Salter and Fernandez, Associate Judges.
   Suarez, Associate Judge.

Petitioner Robert W. Joshua (“Petitioner”) seeks a writ of prohibition to prevent the trial court from proceeding in the underlying forfeiture action between the City of Ft. Lauderdale (“City”) and Petitioner, case no. 11-20057(25), filed in the 17th Judicial Circuit in and for Broward County, Florida, and for return.of his seized property. We decline to recognize the Petitioner’s voluntary dismissal of his first filed petition for writ of certiorari in case no. 4D17-968; we deny Petitioner’s second petition for writ of certiorari filed by Petitioner under that same case number shortly after filing the voluntary dismissal of his first petition; we deny the City’s motion to strike; and we affirm the trial court’s February 20, 2017 order denying the Petitioner’s motion to dismiss the City’s civil forfeiture complaint, case no. 11-20057(25), filed in the 17th Judicial.Circuit in and for Broward County, Florida. See DeGregorio v. Balkwill, 853 So.2d 371 (Fla. 2003); Hernandez v. Kissimmee Police Dep’t, 901 So.2d 420, 422 (Fla. 5th DCA 2005); Alvarez v. City of Plantation, 824 So.2d 339 (Fla. 4th DCA 2002); cf. Hamilton Cty. Bd. of Cty. Comm’rs v. State Dep’t of Envtl. Regulation, 587 So.2d 1378, 1390 (Fla. 1st DCA 1991) (noting statute seemingly mandatory in terms because of the use of the word “shall,” is designed simply to further the orderly conduct of business, and the provision is generally deemed directory only).

Salter and Fernandez, Associate Judges, concur.

      . We treat the petition for writ of prohibition as a petition for writ of certiorari,

      . See State v. Schopp, 653 So.2d 1016 (Fla. 1995) (holding an appellate court has the discretion to retain jurisdiction to render a decision on the merits of a case notwithstanding the filing of a notice of voluntary dismissal).


text:
    Harvey LOVEJOY, Appellant, v. Delilah Dee POOLE, Appellee.
    Case No. 5D16-4270
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 20, 2017
    Rehearing Denied November 8, 2017

      Eric J. Stuedemann, Bradenton, for Appellant.
    Richard V, Lee, Bradenton, for Appel-lee.
   PER CURIAM.

Harvey Lovejoy appeals the denial of his motion seeking to enforce child support arrearages owed by Delilah Poole. The trial court denied the motion without a hearing. We reverse.

■ Lovejoy and Poole never married but had two children together. In 1997, Love-joy was designated the primary residential parent of the children. Poole was ordered to pay child support in addition to arrears owed. In 2001, -the court again established arrearages, ordered Poole to pay child support until the children reached the age of eighteen, and ordered her to contribute to Lovejoy’s attorney’s fees and costs.

In 2016, Lovejoy moved for civil contempt/enforcement. He alleged that Poole had not made any payments for child support, arrearages, or ordered attorney’s fees since the stipulated final judgment was entered in 1997. Lovejoy also claimed that Poole concealed her address and employment information from him. The trial court denied the motion without a hearing and without explanation, citing Pyne v. Black, 650 So.2d 1073 (Fla. 5th DCA 1995). Lovejoy moved for reconsideration, but the court summarily denied the motion. In its entirety, the order stated, “Denied. Lack of Standing. See Pyne v. Black.”

In Pyne, .this Court affirrqed the denial of a motion for contempt that sought to collect child support arrears; the motion was denied after an evidentiary hearing. 650 So.2d at 1074. The majority agreed with the trial court that the wife’s attempt to collect child support twelve years after the husband stopped paying and four years after the youngest child turned eighteen years old was barred by equitable estoppel and laches. Id. The panel also agreed that the wife lacked standing to collect post-majority child support. Id.

Here, the trial court erred in relying on Pyne to deny Lovejoy’s motion. In particular, the court erred in denying the motion for reconsideration based on a finding that Lovejoy lacked standing to pursue his claim. The only reference to standing in Pyne related to enforcement of post-majority child support arrearages. Id. at 1074, 1076. Here, Lovejoy sought to enforce pre-majority child support arrearag-es. Thus, standing is not at issue in this case. See Gibson v. Bennett, 561 So.2d 565, 572 (Fla. 1990) (“[A] judgment for support arrearages is enforceable by contempt proceedings after a child has reached the age of majority.”).

In addition, unlike the instant case, the trial court in Pyne held an evi-dentiary hearing. 650 So.2d at 1074. Assuming that the trial court here relied on either laches or equitable estoppel in denying Lovejoy’s motion for contempt, absent an evidentiary hearing, that was error. Laches may bar an equitable claim of enforcement, but it is an affirmative defense dependent upon the facts of each case. See Jackmore v. Jackmore, 71 So.3d 912, 913 (Fla. 1st DCA 2011) (“Laches ... is an affirmative defense that must be proven by facts about both the plaintiffs and the defendant’s conduct, and is not established merely by the passage of an inordinate period of time.” (citing Bethea v. Langford, 45 So.2d 496 (Fla. 1949))). Moreover, Poole would be required to demonstrate prejudice from Lovejoy’s delay in filing the motion. See Bishop v. Bishop, 858 So.2d 1234, 1238 (Fla. 5th DCA 2003). And, to successfully assert the defense of equitable estoppel, Poole would bear the burden of establishing its elements by clear and convincing evidence. See Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098, 1103 (Fla. 5th DCA 2006) (citing Watson Clinic, LLP v. Verzosa, 816 So.2d 832, 834 (Fla. 2d DCA 2002)). Thus, the trial court erred in denying Lovejoy’s motion without holding an evidentiary hearing. Accordingly, we reverse.

REVERSED AND REMANDED.

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

      . Poole acknowledges that she failed to comply with the child support orders.

      . The support obligation in Pyne, by agreement, extended until the children reached the age of twenty-one.


text:
    Julius Erwing BLACK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2853
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 27, 2017

      Julius Erwing Black, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Julius Black (the defendant) appeals the post-conviction court’s order summarily denying ground seven of his motion for post-conviction relief, filed pursuant to rule 8.850 of the Florida Rules of Criminal Procedure. Ground seven alleged ineffective assistance of counsel. We reverse and remand for an evidentiary hearing.

“To prevail on a claim of ineffective assistance of counsel, a party must demonstrate both deficient performance by counsel and prejudice.” Guevara v. State, 227 So.3d 205, 207, 2017 WL 3795605 (Fla. 5th DCA Sep. 1, 2017).

The defendant filed a rule 3.850 motion raising nine grounds for post-conviction relief. In ground seven, the motion alleged that trial counsel was ineffective for failing to call co-defendant Philip Snead as a defense witness because Snead would have testified that the defendant was not present at the crime scene. The defendant filed an affidavit from Snead, which stated that Snead was available and willing to testify at the defendant’s trial and that the defendant was not involved in the crime or present at the crime scene. The motion stated that Snead testified to such at his own trial and would do so again, if needed. The post-conviction court summarily denied ground seven, finding that it was refuted by the record:

As to Philip Snead’s affidavit provided by the Defendant in the Second Motion to Amend, it is noted that in the companion case 2013-CF-1000A, Philip Snead did testify on his own behalf and stated the whole incident was merely a fight between intoxicated friends (he and the victim) and that Julius Black was not present. This is essentially what the affidavit in the Second Motion to Amend states. Notwithstanding this self-serving testimony, Philip Snead was found guilty of felony battery in a jury trial in his case. It is also noted that Julius Black’s trial was held on August 20, 2014 (case 2013-CF-1000B), which is before the trial of Philip Snead on June 23, 2015 (case 2013-CF-1000A). Thus, it is unlikely that Philip Snead would have testified at Julius Black’s trial before his own trial to confess that he was the sole perpetrator and that Julius Black was not present. Obviously, Mr. Snead would have had to “plead the Fifth” and subject himself to cross-examination by the State—something his attorney would have never allowed....
In sum, there is overwhelming evidence from the victim and from witnesses Aaron Salcido and Brian Pedroza, that Julius Black, a cousin of co-defendants Philip Snead and Kystal [sic] Smith, was the black male wearing a hoodie that night whose nickname was “Doc” and was present and participated in the attack on the victim. Philip Snead’s affidavit is the same as his own trial testimony, but it is unlikely he would have testified at Julius Black’s trial and confessed he was the sole attacker before his own trial. Even 'so, with overwhelming evidence to the contrary, Philip Snead’s testimony would not have been credible, and a jury did not find his testimony credible in his own trial either.

“To uphold the summary denial of a rule 3.850 motion, the claims made must either be facially invalid as a matter of law or be conclusively refuted by the record. In undertaking"this review, the factual allegations of the motion must be accepted as' true unless refuted by the record.” McKinnon v. State, 221 So.3d 1239, 1240 (Fla. 5th DCA 2017) (citation omitted).

First, although the post-conviction court concluded that Snead would not have testified because of self-incrimination concerns, nothing in the record supports this conclusion. See Forte v. State, 189 So.3d 1043, 1044 (Fla. 2d DCA 2016) (“The State argues that because the codefendant had not been sentenced when Forte proceeded to trial the codefendant could have invoked his Fifth Amendment right. However, nothing in the limited record before us supports the State's contention,”); see also Echevarria v. State, 976 So.2d 84, 85 (Fla. 3d DCA 2008).

Second, the post-conviction .court improperly evaluated Snead’s credibility. Generally, an evidentiary hearing is required to assess the reliability and credibility of allegations in an affidavit attached to a motion for post-conviction relief.. See McKinnon, 221 So. 3d at 1241; Cueto v. State, 88 So.3d 1064, 1068 (Fla. 3d DCA 2012); Barrow v. State, 940 So.2d 1235, 1236 (Fla. 5th DCA 2006).

Third, the defendant’s claim cannot be denied on lack of prejudice grounds. The post-conviction court attached excerpts of the trial testimony of the victim, two eyewitnesses,' and a police officer. Based on the excerpted testimony of these witnesses, it cannot be summarily determined that Snead’s proposed testimony would not have led to a different result at the defendant’s trial.

Thus, the order summarily denying ground seven is reversed and this matter is remanded for an evidentiary hearing thereon.

REVERSED AND REMANDED.

PALMER, TORPYand WALLIS, JJ., concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Juan FALCON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4134
    District Court of Appeal of Florida, Second District.
    Opinion filed October 27, 2017

      Christopher H. Brown of Brown, Suarez, Rios & Weinberg, P.A., Naples, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Juan Falcon pleaded no contest to charges of maintaining a marijuana “grow house” and possessing drug paraphernalia based on the seizure of twenty-six marijuana plants from a shed in his back yard. As part of his plea, Falcon preserved his right to appeal the trial court’s denial of his dispositive motion to suppress evidence on the grounds that (1) the deputies had violated Florida’s “knock-and-announce” statute, section 933.09, Florida Statutes (2013), and (2) the search warrant had issued on insufficient probable cause. We hold that Falcon’s first ground is meritorious, decline to reach the second ground, and reverse.

Background

In denying Falcon’s suppression motion, the trial court made no explicit findings of fact. Consequently, we must construe the factual record in the light most favorable to the denial of the motion, see In re Doe, 932 So.2d 278, 283-84 (Fla. 2d DCA 2005) (observing that “traditional appellate presumption of correctness ... require[s] us to view the record in the light most favorable to sustaining the order under review”), which we do as follows:

•After learning that Falcon was engaged in a marijuana-growing operation out of his residence and/or a shed in his back yard, the Collier County Sheriffs Office independently confirmed the presence of items consistent with a grow operation near and connected to the shed. Thus, at just past 6:45 a.m. on April 9, 2014, a SWAT unit of at least six heavily armed deputies appeared on the front doorstep of Falcon’s residence to execute a search warrant.

Less than an hour earlier, the deputies had all been briefed on the fact that Falcon lived in the residence with his family, which included an adolescent son and a teenage daughter. Notwithstanding the nature of the suspected offense, the deputies had no reason to believe that there were any weapons in the residence or that Falcon was armed and dangerous; his criminal history consisted of one arrest for driving under the influence. The deputies also had no reason to believe that Falcon knew that they were coming, that anyone inside the residence was at risk of harm, or that Falcon or his family might try to escape or destroy evidence.

Over a public address system, the deputies thrice announced “Sheriffs Department” and demanded that those inside the residence open the door. The deputies observed no activity inside the residence. Their demand unmet, the deputies breached the door with a battering ram and another tool and then set off two pyrotechnic “noise flash diversion devices” at the front and side of the residence.

Falcon and his family had been sleeping when the deputies had arrived on their doorstep, and Falcon and his daughter were walking toward the front door when it was forced open. Numerous deputies entered the residence and secured Falcon, his wife, and his daughter by zip-tying their hands behind their backs. Although Falcon’s son was not zip-tied, the record establishes that the deputies’ entry terrified him.

Approximately twenty seconds elapsed between the moment that the deputies began the knock-and-announce procedure and their breach of the front door. At the suppression hearing, one deputy “estimate[d]” that “more than fifteen seconds” had elapsed between the first knock-and-announce and the breach. Accordingly, we must assume that, after duly notifying Falcon and his family of their authority to enter,' deputies waited more than fifteen seconds but less than twenty seconds before breaching their front door. '

Analysis

Falcon argues that the SWAT deputies violated the knock-and-announce statute when they forcibly breached the front door of his residence to execute the search warrant. That statute provides:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

§ 933.09.

The policy ' underlying section 933.09 derives from the sentiment that “[tjhere is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the law protects its entrance so rigidly.” State v. Bamber, 630 So.2d 1048, 1052 (Fla. 1994) (quoting Benefield v. State, 160 So.2d 706, 709 (Fla. 1964)). Where officers knock, announce their authority and purpose, and then enter with such haste that the occupant does not have a reasonable opportunity to respond, the search violates section 933.09. Holloway v. State, 718 So.2d 1281, 1282 (Fla. 2d DCA 1998). And absent certain exigencies, a violation of section 933.09 warrants suppression. See generally State v. Cable, 51 So.3d 434, 444 (Fla. 2010) (reaffirming suppression as remedy for violation of parallel knock-and-an-nounee provision of § 901.19(1)); see also Benefield, 160 So.2d at 710 (identifying exigencies that justify unannounced intrusion that would otherwise violate' section 933,09).

Significantly, however, section 933.09 does not provide how long “after due notice” the officer must wait before forcibly entering the residence, and case law providés no bright-line rule, although “[t]his court has noted that ‘[t]ime periods less than five seconds are rarely deemed adequate, and periods in excess of fifteen seconds' are often adequate.’ ” Spradley v. State, 933 So.2d 51, 55 (Fla. 2d DCA 2006) (quoting State v. Cassells, 835 So.2d 397, 399 n.2 (Fla. 2d DCA 2003)) (second alteration in original). “[T]he question is whether the officer has waited a sufficient .period, under all of the circumstances, so that the officer can reasonably infer or conclude that he or she has been refused admittance by the occupants,” id., and “the only answer found in our case law is that the occupant must have a ‘reasonable opportunity’ to respond,” State v. Pruitt, 967 So.2d 1021, 1023 (Fla. 2d DCA 2007) (quoting Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001)). In determining whether the occupant has been afforded a reasonable opportunity, “some factors the courts have considered include the nature of the underlying offense, the time of day the warrant is executed, the size of the home, whether any activity or movement is observed within the home at the time of execution, and whether any exigencies ex1st.” Mendez-Jorge v. State, 135 So.3d 464, 467 (Fla. 5th DCA 2014).

Although failing to explicitly find how long the deputies had waited, the trial court-concluded that it had been “reasonable.” Upon our de novo review of the pertinent factors, however, see Daniels v. State, 208 So.3d 1223, 1226 (Fla. 2d DCA 2017) (explaining that we review de novo trial court’s conclusions of law in ruling on suppression motion), we conclude that the fifteen to twenty seconds that the deputies provided Falcon and his family was not reasonable, Apart from the bare nature of-the offense, no factor supported the urgency with which the deputies executed the warrant, and the,facts of this particular case undercut the. , assumptions -that,the deputies would normally draw, even from that factor: even allowing a general assumption that a marijuana-grower will be armed and dangerous, the State stipulated at the suppression hearing that the SWAT deputies had no reason to believe that there were weapons in the residence or that Falcon was armed and dangerous. To the contrary, the deputies knew that the residence was Falcon’s family residence, which he shared with his wife and children, and that Falcon’s criminal history consisted of one prior arrest for driving under the influence. See Randall v. State, 793 So.2d 59, 60 (Fla. 2d DCA 2001) (holding ten seconds unreasonable, when officers executed warrant between 6:00 and 7:00 a,m, and had no information .that firearms might be present or.that residents posed any threat).

Furthermore, in executing the warrant at 6:45 a.m., the deputies all- but ensured that the entire family would be home and, as turned out to be the case, might, still be asleep. See Spradley, 933 So.2d at 55 (holding fifteen seconds unreasonable because, among other things, at 9:41 p,m„ the .officers “could reasonably expect an occupant to be awake but [it was also] late enough that the occupants might be preparing for bed.”); Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001) (holding ten seconds unreasonable at approximately 5:30 a.m. because it was “at a time of day when it was reasonable that -persons inside the house would be sleeping”'(citing Griffin v. United States, 618 A.2d 114 (D.C. 1992) (holding thirty seconds unreasonable at 1:40 a.m.))). None of the deputies observed any activity or movement inside the residence. Cf. Braham v. State, 724 So.2d 592, 594 (Fla. 2d DCA 1998) (considering officers’ ability to hear phone ringing inside trailer and someone moving around inside as factors rendering five- to ten-second delay reasonable). And the deputies had no reason to believe that Falcon knew that they were coming, that anyone inside the residence was at risk of harm, or that Falcon or his family might try to escape-or destroy evidence. Cf. Benefield, 160 So.2d at 710 (identifying exigencies justifying unannounced intrusion).

Conclusion

Upon consideration of all of these factors, we hold that the deputies violated section 933,03 by failing to afford Falcon a reasonable opportunity to respond and that this violation warranted suppression. In so holding, we recognize that determining what is reasonable is not an exact science and that, in the wrong situation, waiting too long could have catastrophic results. Nonetheless, maintaining the balance between the rightful force and authority of the State and the rights of its citizens can come down literally to a matter of seconds. Precisely because there is so little margin for error either way, we urge law enforcement agencies to use SWAT tactics to execute search warrants sparingly and to take special care that their use does not simply become par for the course.

Reversed; remanded for discharge.

WALLACE and KHOUZAM, JJ., Concur.

      . At the suppression hearing, one SWAT member testified that, in situations involving a suspected marijuana-growing operation: "We always have to assume that there are weapons in the house. We can’t go on the mentality that there’s no weapons because we don’t know.”

      . An officer with a valid warrant may, of course, forcibly enter a residence upon an affirmative refusal of entry.' Nevertheless, "whether the ultimate refusal be express or implied, the statute and case law interpreting it require that some quantity of time, sufficient under the particular circumstances, be permitted for an occupant to respond.” Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001).

      . The SWAT unit leader testified that the unit had executed the warrant at that time for the safety of the unit. When asked what had prevented the unit from waiting until, for example, noon, the unit leader replied, "daylight."

      . Because we conclude that suppression is warranted on this basis, we.need not address Falcon's alternative challenge to the sufficiency of the probable cause supporting the warrant.


text:
    Anthony R. BAKER Jr., Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1702
    District Court of Appeal of Florida, First District.
    Opinion filed October 31, 2017
    Anthony R. Baker Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney • General, Amanda D. Stokes and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner .Anthony Baker Jr. seeks a writ of prohibition disqualifying the lower tribunal judge from a criminal matter in which Baker is proceeding pro se. For the reasons explained below, we grant the petition, but instead of ordering the appointment of a- successor judge, we quash the order denying the motion for disqualification and remand for the lower tribunal judge to consider the legal sufficiency of Baker’s disqualification motion in the first instance.

Baker filed a motion to disqualify the trial judge who is presiding over his criminal case. It is unnecessary for purposes of this opinion to address the merits of that motion, except to say that the motion was not properly served on the judge whom Baker was seeking to disqualify. The judge entered an order denying the motion to disqualify, which stated that the sole reason the motion was being denied was that it was not properly served on the judge per Florida Rule of Judicial Administration 2.330(c)(4). The order did not address the legal sufficiency of the motion to disqualify.

Petitioner filed a petition for writ of prohibition, arguing that the motion was legally sufficient and should have been granted. The state filed a response asserting that the motion was properly denied because it was not correctly served on the lower tribunal judge. The proper remedy, the state suggests, is for petitioner to file a new motion to disqualify with proper service. Both the petitioner and the state make additional arguments relating to the merits of the motion to disqualify, which we do not discuss here.

The issue presented in this case is whether a motion to disqualify may be denied solely upon the basis that it was improperly served when it is ultimately received by the trial judge. Case law shows that improper service ofa motion to disqualify nullifies the portion of Florida Rule of Judicial Administration 2.330(j) that provides that such a motion is deemed granted if not ruled upon within 30 days. See, e.g., McCray v. State, 151 So.3d 449 (Fla. 1st DCA 2014); Harrison v. Johnson, 934 So.2d 563 (Fla. 1st DCA 2006); Marquez v. State, 11 So.3d 975 (Fla. 3d DCA 2009). There is no case which holds, however, that improper service alone is a sufficient reason to deny a motion once received.

In Leila Corp. of St. Pete v. Ossi Consulting Engineers, Inc., the court noted that “the lack of a certificate of service in and of itself is not fatal,” and held that the 30-day time period began to run from the date the trial judge actually received the motion. Leila Corp. of St. Pete v. Ossi Consulting Engineers, Inc., 144 So.3d 644, 646-47 (Fla. 2d DCA 2014) (citing Overcash v. Overcash, 91 So.3d 254, 255 (Fla. 5th DCA 2012)). In Overcash, the court wrote that “[sjervice is the issue, not proof of service.” Id. (citing Tobkin v. State, 889 So.2d 120, 122 (Fla. 4th DCA 2004) (discussing Florida Rule of Civil Procedure 1.080 in reference to rule 2.330(c) and noting that the rule “requires service in a manner designed to notify the judge of the existence of. the motion”)).

Here, it is clear that the judge received the motion because he ruled on it, and in fact, he did so within 30 days. We conclude that improper service, where service ultimately was effected on the trial judge, was not a sufficient reason for denial of the motion, and that the trial judge was required to rule on the legal sufficiency of the motion in his l-uling. We therefore quash the order denying the motion to disqualify, and remand for the trial judge in this case to make a ruling on the legal sufficiency of the motion to disqualify in the first instance. See generally Kelly v. Scussel, 167 So.2d 870 (Fla. 1964). We note that this is a more appropriate remedy than the state’s suggestion of requiring the petitioner to refile the motion to disqualify with proper service, as this would require the petitioner to file a motion to disqualify that is untimely per Florida Rule of Judicial Administration 2.330 and thereby deprive him of a ruling on the legal sufficiency of the motion.

PETITION GRANTED; ORDER QUASHED; REMANDED.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.