author: Buchanan, Laurie E., Associate Judge.

text:
    HSBC BANK USA, National Association as Trustee for the Holders of the Ellington Loan Acquisition Trust 2007-2, Mortgage Pass-Through Certificates, Series 2007-2, Appellant, v. James HESS a/k/a James H. Hess, Juliaann Hess a/k/a Juliann Hess a/k/a Juliaan Hess, the Gables at Bonaventure Homeowners’ Association, Inc., Town Center Club Authority, Inc., Household Finance Corporation III, and United States of America, Appellees.
    No. 4D16-3594
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]

      Charles P. Gufford of McCalla Raymer Leibert Pierce, LLC, Orlando, for appellant.
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellees James Hess a/k/a James H. Hess and Juliaann Hess a/k/a Juliann Hess a/k/a Juliaan Hess.
   Buchanan, Laurie E., Associate Judge.

HSBC Bank USA, National Association, as Trustee for the Holders of the Ellington Loan Acquisition Trust 2007-2, Mortgage Pass-Through Certificates, Series 2007-2 (“the Bank”), appeals the trial court’s order granting final judgment in favor of James and Juliaann Hess (“Borrowers”) for lack of standing. We reverse because the Bank established its standing to foreclose by virtue of its possession of the note indorsed in blank.

In April of 2012, the Bank filed a one count verified mortgage foreclosure complaint against Borrowers. In its complaint, the Bank alleged that it was the holder of the note and was entitled to enforce the terms thereof. The copy of the note attached to the complaint contained a single, undated blank indorsement from Fremont Investment & Loan (“Fremont”), the original lender.

Borrowers answered the complaint and generally denied all of the Bank’s material allegations. They also raised several affirmative defenses including lack of standing. The lack of standing affirmative defense was premised on Borrowers’ argument that the indorsement appearing on the note reflected that Fremont had already indorsed the note to “an unknown third party.” Notably, Borrowers did not challenge the authenticity or enforceability of the indorsement in their answer.

The matter proceeded to a bench trial where the Bank presented its case through the testimony of a single witness. The witness, a default specialist employed with the Bank’s servicer, identified the original note and testified that the indorsement must have been placed on the note prior to the filing of the Bank’s complaint as the very same indorsement appeared on the copy of the note attached to the complaint. The original note was admitted into evidence without objection, and Borrowers stipulated on the record that the original note contained an indorsement. The Bank also moved into evidence, over hearsay and trustworthiness objections, a recorded 2008 loan modification agreement showing that the original principal amount of $446,500 was increased to $474,365.48. As additional evidence of standing, the Bank also introduced an assignment of mortgage dated September 16, 2011 showing that Borrowers’ mortgage “together with the note” was assigned to the Bank.

During cross-examination, defense counsel asked the witness if, during the boarding process, the servicer checks or verifies that the original lender of any given loan is still in existence. The witness responded that he did not know. Defense counsel then generally asked “[i]f there was a problem with an entity, would that may[be] affect the go, no go in the boarding process that you’ve described earlier,” and the witness responded “I would think so, yes.” Based on the witness’s response, defense counsel then successfully introduced an exhibit consisting of printouts from the FDIC website showing the legal status of Fremont. Defense counsel then showed the exhibit to the witness and asked him to confirm that Fremont “was involved in a voluntary liquidation and closing” and had been inactive since July 25, 2008. The witness confirmed that, according to.the exhibit, Fremont voluntarily closed on July 25, 2008.

After the parties rested, the matter proceeded to closing where the arguments primarily centered on the issue of standing. The Bank argued that it clearly established standing as holder of the note by virtue of its possession of the note indorsed in blank. Borrowers countered that the Bank was required to provide “testimony to show that the ^Indorsement was placed on- the note prior to [Fremont] becoming shutdown.” They also argued that the Bank could not establish standing via the 2011 assignment of mortgage because that assignment was ineffective in that it was executed after Fremont voluntarily closed in 2008.

The trial court agreed with Borrowers and ruled that the Bank could not rely on the assignment of mortgage to establish standing. Specifically, the court reasoned that because Fremont was no longer in existence at the time the assignment of mortgage was executed, it had no authority to assign the note or mortgage to the Bank. Moreover, although the court acknowledged that the Bank possessed the original note indorsed in blank, it insisted that “[e]ven though a party has possession of a note, they still have to have ... appropriate possession.” Accordingly, the court found that the Bank lacked standing and entered final judgment in favor of Borrowers. This timely appeal follows.

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must' demonstrate that it has standing to foreclose” at the time the lawsuit was filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). “A negotiable instrument, such as the promissory note in this case, is enforceable by the holder, a nonholder in possession of the instrument with the rights of a holder, or a person not in possession but entitled to enforce it.” Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So.3d 1277, 1279 (Fla. 4th DCA 2016).- A “holder” is defined as “[t]he person in possession of a-negotiable instrument that is payable either to bearer or to an identified person.that is the person in possession.” § 671.201(21)(a), Fla. Stat. (2016).

, In cases where standing is established by possession of a note bearing a blank indorsement, ‘“possession of, the note is the significant core element to be analyzed.’” Ortiz v. PNC Bank, Nat. Ass’n, 188 So.3d 923, 925 (Fla. 4th DCA 2016) (quoting Rodriguez v. Wells Fargo Bank, N.A., 178 So.3d 62, 65 (Fla. 4th DCA 2015) (Conner, J., concurring)). In that regard, “the fact that a copy of a note is attached to a complaint does not conclusively or necessarily prove that the [b]ank had actual possession of the note at the time the complaint was filed.” Id. If, however, “the [b]ank later files with the court the original note in the same condition as the copy' attached to the complaint,” we have held that “the combination of such evidence is sufficient to establish that the [blank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.” Id.

In the present case, the Bank sought to establish standing via its status as holder of the note bearing an undated blank indorsement. The note attached to its complaint reflected said blank indorsement. The Bank later filed the..original note in the-same condition as the copy attached to the complaint with the court. The combination of such evidence was more than sufficient to establish that the Bank had standing to initiate and maintain the foreclosure action. See Ortiz, 188 So.3d at 925. Furthermore, insomuch as the trial court appears to have concluded that, irrespective of the Bank’s status as holder, of the note, the Bahk was required to have “appropriate possession” of the note in order to enforce the instrument, this reasoning is flawed as a holder is entitled to enforce a note even if it “is not the owner of the instrument or is in wrongful possession of the instrument.” § 673.3011, Fla. Stat. (2016) (emphasis added). Accordingly, even if the assignment of mortgage was invalid and the Bank was in wrongful or “inappropriate” possession of the note, it does not change the fact that the Bank, as the undisputed holder of Borrowers’ note indorsed in blank, had standing and was entitled to enforce the note. See id.

Borrowers acknowledge the presumption of standing holding in Ortiz, but maintain that contrary evidence was presented in this case to show lack of standing, namely the FDIC website printouts. Specifically, they argue that because Fremont closed on July 25, 2008, which predates the filing of the complaint, it “no longer had authority or legal capacity to create a blank [i]ndorsement, [and therefore] the alleged blank [indorsement transferred no interest to any subsequent holder.” There is a major flaw in Borrowers’ argument: the blank indorsement is undated. Had the indorsement been dated, then evidence showing that the indorsement was placed on-the note after Fremont closed could potentially have served as contrary evidence of standing. However, as the blank indorsement appearing on Borrowers’ note is undated, and as Borrowers never denied Fremont’s authority to place the indorsement on the note in their pleadings, no such “contrary” evidence exists in this case. See § 673.3081(1), Fla. Stat. (2016) (“In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings.”); Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010) (citing section 673.3081 and holding that the borrowers could not challenge the authenticity of the indorsement because they never placed its authenticity at issue in their pleadings).

Accordingly, we reverse the final judgment entered in favor of Borrowers and remand, for entry of final judgment of foreclosure in favor of the Bank.

Reversed and remanded.

Warner and Levine, JJ., concur..


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Winston MUHAMMAD and Janet Muhammad, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee of SW REMIC Trust 2015-1, Appellee.
    No. 4D16-3666
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Winston Muhammad and Janet Muhammad, Lauderhill, pro se. - .
    Adam J. Knight and Jacqueline Simms-Petredis of Burr & Forman LLP, Tampa, for appellee.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979).

Damoorgian, Conner and Forst, JJ., concur.


author: Taylor, J.

text:
    MINTO PBLH, LLC, Appellant, v. 1000 FRIENDS OF FLORIDA, INC., Alerts of PBC, Inc., Robert Schutzer and Karen Schutzer, Appellees.
    No. 4D16-4218
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]

      Amy Taylor Petrick, Tara W. Duhy and Kathryn B. Rossmell of Lewis Longman & Walker, P.A, West Palm Beach, for appellant.
    Robert N. Hartsell, Sarah M. Hayter and Heidi M. Mehaffey of Robert N. Hart-sell, P.A., Pompano Beach, for Appellee 1000 Friends of Florida, Inc.
    Ralf Brooks of Ralf Brooks Attorney, Cape Coral, for Appellees Alerts of PBC, Inc., Robert Schutzer and Karen Schutzer.
    Preston Robertson, Tallahassee, for Amicus Curiae Florida Wildlife Federation.
   Taylor, J.

The plaintiffs below, 1000 Friends of Florida, Alerts of PBC, and Robert and Karen Schutzer, unsuccessfully brought this case to challenge the consistency of certain Development Orders with the County’s Comprehensive Plan. The intervenor-defendant, Minto PBLH, LLC, now appeals an order denying its motion for attorney’s fees under both section 57.105 and section 163.3215(6), Florida Statutes, as to one of the plaintiffs, 1000 Friends. The other plaintiffs, Alerts and the Schutzers, and their counsel, Ralf Brookes, cross-appeal an order sanctioning them pursuant to section 57.105. We affirm as to the main appeal, and reverse as to the cross-appeal.

The standard of review of a trial court’s decision on entitlement to section 57.105(1) attorney’s fees is generally abuse of discretion. Lago v. Kame By Design, LLC, 120 So.3d 73, 74 (Fla. 4th DCA 2013). “However, to the extent a trial court’s order on fees is based on an issue of law, this court applies de novo review.” Id.

Section 57.105(1), Florida Statutes (2016), states that a court “shall award a reasonable attorney’s fee” to the prevailing party on any claim or defense in which the court finds that:

the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

§ 57.105(1)(a)-(b), Fla. Stat. (2016).

Where there is an arguable basis in law and fact for a party’s claim, a trial court may not sanction that party under section 57.105. Kowallek v. Rehm, 189 So.3d 262, 263-64 (Fla. 4th DCA 2016). Courts must apply section 57.105 “with restraint to ensure that it serves its intended purpose of discouraging baseless-claims without casting a chilling effect on use of the courts.” MacAlister v. Bevis Constr., Inc., 164 So.3d 773, 776 (Fla. 2d DCA 2015) (internal quotation marks omitted).

Merely losing a case is not a basis for sanctions under section 57.105. Cullen v. Marsh, 34 So.3d 235, 242 (Fla. 3d DCA 2010). Similarly, a court’s finding that a party’s interpretation of a legal document is incorrect “does not mean that the other party is necessarily entitled to section 57.105 fees.” Peyton v. Horner, 920 So.2d 180, 183 (Fla. 2d DCA 2006).

For purposes of this opinion, we decline to address in detail the lengthy factual and procedural history of this case. Here, it is sufficient to note that, although the plaintiffs’ claims were tenuous with respect to the alleged inconsistency between the Comprehensive Plan and the college and hotel uses authorized in the Development Orders, there was at least an arguable basis for the plaintiffs’ claims.

Our decision is not intended to suggest that the plaintiffs’ claims were persuasive. Minto’s position that the Development Orders were consistent with the Comprehensive Plan was eventually determined to be correct when this court affirmed the final summary judgment in favor of Minto. See 1000 Friends of Fla. v. City of Westlake, 4D16-1730, 2017 WL 2290974 (Fla. 4th DCA May 25, 2017).

Nonetheless, while the plaintiffs’ contentions were not particularly strong and were ultimately determined to be incorrect, we affirm the trial court’s denial of sanctions against 1000 Friends under section 57.105. Our decision is guided by the need to apply section 57.105 with restraint. To rule otherwise would risk chilling access to the courts. For example, if Minto’s argument' were taken to its logical extreme, a losing party would be subject to sanctions under section 57.105 every time a court found that a statute or legal document was unambiguous and that the losing party’s interpretation was incorrect.

On cross-appeal, we reverse the sanctions order as to the cross-appellants because (1) the claims at issue were jointly filed by.all plaintiffs and were the same .claims for which the trial court refused to sanction 1000 Friends, (2) as explained above, the claims at issue were not completely unsupported by material fact or existing law, and (3) the statement by counsel' for the cross-appellants, upon which the trial court based the sanctions order, did not amount to a concession that he knew or should have known those claims were unsupported by material facts or existing law.

In sum, we affirm the denial of fees in the main appeal, and reverse the order granting fees in the cross-appeal.-

Affirmed, as to main appeal; Reversed as to cross-appeal.

May and Kuntz, JJ., concur.

      . Moreover, the trial court properly denied sanctions against 1000 Friends under section 163.3215(6), Florida Statutes, as Minto did not make a showing that the plaintiffs’ claims were brought for an improper purpose.


text:
    Samuel CALIXTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0069
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CONCESSION OF ERROR

Per Curiam.

On appeal, Appellant argues the trial court erred by imposing an upward departure sentence without articulating any grounds to justify the departure at re-sentencing. Based on the State’s proper concession of error, we agree that the trial court erred by not articulating any findings to. support departure from .the permitted deviated sentence range as recommended by the original sentencing guidelines. See Bryant v. State, 148 So.3d 1251, 1256 (Fla. 2014) (citing Pope v. State, 561 So.2d 554, 555 (Fla. 1990)); Boynton v. State, 473 So.2d 703, 704 (Fla. 4th DCA 1985), approved, 478 So.2d 351 (Fla. 1985). Accordingly, we reverse and remand for resentencing.

Reversed and Remanded.

Ciklin, Conner'And Klingensmith, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Jefty Laude JOSEPH, Respondent.
    No. 4D17-0463
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Pamela Jo Bondi, Attorney General, and Donna M. Perry, Assistant Attorney General, West Palm Beach, for petitioner.
    No appearance for respondent.
   Per Curiam.

The petition for writ of prohibition is granted, and the order precluding the State from seeking the death penalty is quashed. State v. Lopez, 219 So.3d 865 (Fla. 4th DCA 2017); State v. Chapman, No. 4D17-428, 227 So.3d 626, 2017 WL 3727098 (Fla. 4th DCA Aug. 30, 2017).

Granted.

Warner, Damoorgian and Forst, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Dacoby Reshard WOOTEN, Appellee.
    No. 4D17-0521
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Leslie T, Campbell, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The petition for writ of prohibition is granted, and the order precluding the State, from seeking the death penalty is quashed. State v. Lopez, 219 So.3d 865 (Fla. 4th DCA 2017); State v. Chapman, No. 4D17-428, 2017 WL 3727098 (Fla. 4th DCA Aug. 30, 2017).

Gerber, C.J., Damoorgian and Klingensmith, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Louis CRAWFORD, Respondent.
    No. 4D17-1768
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, for petitioner.
    No appearance for respondent.
   Per Curiam.

The petition for writ of prohibition is granted, and the order precluding the State from seeking the death penalty is quashed. State v. Lopez, 219 So.3d 865 (Fla. 4th DCA 2017); State v. Chapman, No. 4D17-428, 227 So.3d 626, 2017 WL 3727098 (Fla. 4th DCA Aug. 30, 2017).

Warner, Taylor and Kuntz, JJ., concur.


author: Damoorgian, J.

text:
    Glenda Martinez SMITH, Appellant, v. J. Alan SMITH, Appellee.
    No. 4D14-1436
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellant.
    No brief filed for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

Damoorgian, J.

We reconsider on remand our opinion in Smith v. Smith, 199 So.3d 911 (Fla. 4th DCA 2016), which was quashed by the Florida Supreme Court following its decision in Smith v. Smith, 224 So.3d 740 (Fla. 2017). As ordered by the Florida Supreme Court, we remand and direct the trial court to vacate its final judgment annulling Glenda Martinez Smith’s marriage to J. Alan Smith. The trial court is also directed to vacate its order denying Glenda Martinez Smith’s motion to ratify or approve the marriage based on its conclusion that the marriage could not be ratified after the fact. As clarified by the Florida Supreme Court, although the marriage as it stands now is invalid, “the parties are not foreclosed from seeking court approval in further proceedings. Id. at 751.

Reversed and remanded.

Warner and May, JJ., concur.


author: Warner, J.

text:
    Johnell Daythwon LANG, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D16-2545 & 4D16-2546
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges the revocation of his probation in two criminal cases, contending that the trial judge departed from a position of neutrality when he conducted an independent investigation of a prior charge not offered by the State in its case. The judge used that information in evaluating the credibility of the witnesses. Because he departed from a position of neutrality, the judge did not afford appellant his due process right to an impartial magistrate. We therefore reverse and remand for proceedings before another judge.

Appellant was sentenced to prison time followed by probation for three crimes in two separate cases: lewd and lascivious battery on a person older than twelve, but less than sixteen, aggravated battery, and sexual battery of a person twelve years of age or older. After his release from prison, he violated his probation twice and was reinstated each time, after serving some time in jail. His probation officer filed a third violation of probation affidavit, which is the subject of this appeal, for an incident of indecent exposure which allegedly occurred while appellant was incarcerated for the second violation of probation. Appellant was accused of exposing himself to a female jail deputy.

The female deputy testified at the violation hearing that she had worked for the Palm Beach County Sheriffs office for twenty-eight years. On the date in question, she was assigned to the jail’s male dorm in which appellant was housed. The female deputy knew appellant and had supervised appellant on other occasions. As she was completing her duties, she saw appellant looking at her. and stroking his penis. She approached appellant and he immediately put his penis back in his pants. She wrote up a report on the incident, which led to the filing of the affidavit of violation of probation.

After the deputy’s testimony, the State asked the judge to take notice of the “clerk’s file,” to which the defense did not object. The judge queried the state as to what specifically the state was requesting the court to review, and the prosecutor designated the prior violations of probation and the orders reinstating probation. The defense objected to anything regarding the prior violations, because they were not relevant to whether appellant violated probation in this incident. Appellant’s probation officer then testified to his- supervision of appellant and the filing of the affidavit of violation for the exposure incident.

Appellant testified in his defense. A few days before the incident charged in the violation of probation, appellant had asked for supplies from the deputy, and she became aggravated with him, telling him that he would end up in jail again. On the date of the incident, appellant again asked the deputy for supplies, and she became aggravated again, telling appellant that he was doing it on purpose. She told him not to get off of his bed. He disobeyed her and went to the TV room. She entered the room arid told him to pack his stuff, stating he didn’t listen and she would get him out: of her dorm. Appellant denied putting his hands in his pants or exposing himself. During the five years he was previously in prison, he never received a disciplinary report for anything like indecent exposure.The prosecutor did not attempt to impeach appellant on- his testimony.

The prosecutor and the defense counsel both presented closing arguments. After the arguments were complete, the judge decided to pull up the appellant’s criminal record in the clerk’s database. He again asked the prosecutor which documents she wanted the court to see. Both the prosecutor and defense focused on the prior violations of probation and the orders- reinstating probation, and the defense again objected on relevance grounds. The judge determined that he wanted to look at the clerk’s file, because he found it hard to believe that the deputy would lie and risk her job by committing perjury, if the incident never happened.

The judge then asked whether there were any prior charges of indecent exposure. The prosecutor informed the judge that none of the prior violations of probation involved sexual matters, as. they were all technical violations. Reviewing the clerk’s complete database for appellant, the judge noted a closed misdemeanor case from 2011 for indecent exposure. The prosecutor indicated the case involved the deputy and appellant in the jail in “a different set of circumstances,” and the defense objected that the information was outside the record and testimony. The judge overruled the objection, stating' he was “kind of interested in knowing what that was” and suggesting the case was relevant to the “ongoing dispute” between appellant and the deputy. While the clerk noted that the charge was nolle prossed, the judge wanted to look at the probable cause affidavit, which the State was able to secure. In the prior incident, the- deputy had reported that while in jail appellant had masturbated, while staring at her. After reviewing the affidavit, the court noted “this Is almost an identical situation.” The judge commented that he would use the case to determine if it was more probable that the deputy or appellant was lying. Given that the indecent exposure had happened twice, the judge found that the deputy was more credible and that appellant had committed a willful violation of probation.

At sentencing, the- state requested that the court revoke appellant’s probation and sentence him to 8.8 years. The defense asked for reinstatement of probation. The judge again asked about the nolle prossed misdemeanor. He then revoked appellant’s probation and sentenced him to. ten year concurrent terms on the underlying criminal convictions, with credit for time served, from which orders appellant appeals.

“[Ejvery litigant is-entitled to nothing less than the cold neutrality of an impartial judge,” especially when the judge acts as the finder of fact. State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939); McFadden v. State, 732 So.2d 1180, 1183, 1185 (Fla. 4th DCA 1999). The Due Process Clause entitles a defendant to a neutral and detached tribunal in a VOP hearing. Sears v. State, 889 So.2d 956, 959 (Fla. 5th DCA 2004).

In J.F. v. State, 718 So.2d 251, 252 (Fla. 4th DCA 1998), we held that a trial court departed from a position of neutrality by insisting on the presentation of fingerprint testing which was not ready nor requested by the state to be presented at trial. We explained,

While is it permissible for a trial judge to ask questions deemed necessary to clear up uncertainties'as'to issues in cases that appear to require it, the trial court departs from a position- of neutrality, which is necessary to the proper functioning of the judicial system, when it sua sponte orders the production of evidence that the state itself never sought to offer into evidence.

Id. (citations omitted). This case is similar to J.F. After the close of the trial, the court sought to review appellant’s entire record and discovered a misdemeanor conviction. The misdemeanor was not one of the charges resulting in the previous violations of probation, nor did the State ever seek to use it to impeach the appellant. The defense objected to the judge’s consideration of the misdemeanor, because it was beyond the evidence in the case. Nevertheless, the trial judge persisted in seeking information about the prior nolle prossed misdemeanor. Just as in J.F., the judge sought the production of evidence which the state never sought to offer into evidence. The judge departed from a position of neutrality, depriving appellant of his due process right.

While the state now argues that the 2011 misdemeanor somehow was part of the “clerk’s file,” for which it sought judicial notice at the beginning of the trial, it is clear that the state’s request for the judge to review the court file meant the file of the underlying criminal offenses on which prior violations of probation had been filed. The prosecutor never mentioned the 2011 incident, which was a separate charge and separate file, and did not request that the judge view it. See City of Sunrise v. Hinton, 569 So.2d 891, 891 (Fla. 4th DCA 1990) (noting a party must request the court to take notice of other proceedings); see Kelley v. Kelley, 75 So.2d 191, 193 (Fla. 1954) (“A court should not be required or permitted to browse amongst its own records .. ..where the object of the inquiry is to arrive at its own particular judgment in whole or in part on an extraneous record not introduced[.]”) (citations omitted.)

The record is also abundantly clear that this evidence gathered by the judge was crucial to his credibility determinations, as well as the sentence he ultimately'imposed. Because the judge acted as prosecutor in securing additional evidence and then using that evidence in his deliberation, the appellant was deprived of a neutral magistrate.

For the foregoing reasons, we reverse the revocation of probation and sentence and remand for new proceedings in. front of a different trial judge.

Damoorgian and Levine, JJ., concur.


text:
    Yulia V. FOREST, Appellant, v. L. Lisa BATTS and Stuart Law Group, P.A., f/k/a L. Lisa Batts, P.A., Appellees.
    No. 4D16-4066
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    James Prescott Curry of Curry, PL, Jupiter, for appellant.
    L. Lisa Batts of Stuart Law Group, P.A., Stuart, for appellees.
   Warner, J.

The trial court entered summary final judgment in a legal malpractice action, concluding that the action was barred by the statute of limitations. Appellant challenges that ruling, arguing that the time for filing a cause of action for legal malpractice does not begin to run until the underlying legal proceeding has been completed through appellate review and judicial labor comes to an end. We agree with appellant that her legal malpractice action was timely filed within two years of the entry of the amended final judgment, which was entered after reversal of the final judgment on appeal. We therefore reverse.

The appellee Lisa Batts, and others, represented appellant in her dissolution of marriage action against her former husband. During those proceedings, the court bifurcated the proceedings, granted the dissolution of the marriage, and awarded the marital home to the husband on the ground that it was a non-marital asset, as the court found that the wife made no special claim against that asset. The court reserved jurisdiction to enter a final judgment after resolving the remaining issues. The court ultimately entered a final judgment on all issues on January 24, 2011. In it, the court incorporated the prior order, determined the equitable distribution of assets and liabilities including the husband’s IRA, and determined that no alimony would be awarded, as the husband did not have the ability to pay. The wife appealed that judgment, and this court affirmed in part and reversed in part. Forest-Kohl v. Kohl, 126 So.3d 1094 (Fla. 4th DCA 2012). We remanded for the court to make necessary findings regarding credit card debt and school loans but affirmed as to all other arguments. The trial court complied with the mandate by entering an amended final judgment on August 13, 2013. The appellant filed an appeal of this amended final judgment, but she voluntarily dismissed her appeal on October 4, 2013.

In October 2013 the former husband sought to enforce the Second Amended Final Judgment. The former wife contends that his actions forced her to file bankruptcy in February 2014. Within the bankruptcy case the former wife first initiated her legal malpractice action in July 2014 through an adversary proceeding against appellee. It was later filed in state court on May 2015 pursuant to 28 U.S.C. Section 1367(d), after the dismissal of the bankruptcy proceeding and within two years of the rendition of the amended final judgment.

Appellee Batts moved to dismiss the complaint, claiming that the statute of limitations had run on the legal malpractice claim against her. She then moved for summary judgment, which the court ultimately granted. The court determined that the time for filing of a legal malpractice action ran from the time of the final judgment entered on January 24, 2011 (or,thirty days thereafter). The court discounted the appeal of that final judgment, because the issues on appeal did not concern the matters upon which appellant’s legal malpractice claim was based, namely claims for credits against non-marital assets which appellee should have pursued as well as the husband’s income to support an alimony award. It also discounted, the amended final judgment entered after remand, because the only. terms that changed in the amended final judgment were the disposition of marital liabilities, not the equitable distribution of properties or alimony. Because the appellant knew that she had not received any interest in the non-marital properties or an award of alimony at the time of the 2011 final judgment, the court reasoned that the time for filing a legal malpractice claim began to run. The court entered summary final judgment, prompting this appeal.

The standard of review of an order ruling on a motion for summary judgment which poses a pure question of law is de novo. State v. Presidential Women’s Ctr., 937 So.2d 114, 116 (Fla. 2006); Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001).

Section 95.11(4)(a), Florida Statutes (2015), provides that an action for legal malpractice “shall run from the time the cause of action is discovered or should have been discovered with due diligence.” Our supreme court has interpreted this as meaning the time when finality occurs in the underlying cause of action in which any malpractice is alleged to have occurred:

[Wjhen a malpractice action is predicated on errors or omissions committed in the course of litigation, and that litigation proceeds to-judgment, the statute of limitations does not commence to run until the litigation is concluded by final judgment. To be specific, we hold that -the statute of limitations does not commence to run until the final judgment becomes final. [FN 2—For instance, a judgment becomes final either upon the expiration of the time for filing an appeal or postjudgment motions, or, if an appeal is taken, upon-the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a denial of the motions for rehearing.]
We therefore hold, in those cases that proceed to final judgment, the two-year statute of limitations for litigation-related malpractice under section 95.11(4)(a), Florida Statutes (1997), begins to run wfyen final judgment becomes final. This bright-line rule will provide certainty and reduce litigation over when the statute starts to run. Without such a rule, the courts would be required to make a factual determination on a case by case basis as to when all the information necessary to establish the enforceable right was discovered or should have been discovered.

Silvestrone v. Edell, 721 So.2d 1173, 1175-76 (Fla. 1998) (emphasis supplied). In Silvestrone, a jury failed to award Silvestrone and his co-plaintiff significant damages in an antitrust case. Because of post-trial motions and attorney’s fees issues, final judgment was not rendered for two years resolving all issues, which was not appealed. Silvestrone then filed a legal malpractice action against his attorneys. The trial court found that the statute of limitations ran from the date of the jury verdict, because it was then that the plaintiffs knew of the inadequate damage award and any legal malpractice. While the appellate court agreed, the Florida Supreme Court held that the cause of action ran from the rendition of the final judgment.

Similarly, in Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323, 1325 (Fla. 1990), an accountant malpractice case, the court, noted that attorney malpractices did not accrue until the conclusion of appellate proceedings:

This situation is not unlike attorney malpractice actions. A clear majority of the district courts have expressly held that a cause of action for legal nialpractice does not accrue until the underlying legal proceeding has been completed on appellate review because, until that time, one cannot determine if there was any actionable error by the attorney. [Emphasis added.]

The court discussed the finality requirement in Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36 (Fla. 2009). There, a final judgment was rendered against TSE Industries in a patent infringement case, which judgment was not appealed. The court later entered a judgment awarding attorney’s fees. TSE filed á legal malpractice claim against its attorney, Larson, more than two years after the final judgment but less than two years after the judgment on attorney’s fees. Larson moved for summary judgment on statute of limitations grounds, and the court entered judgment in favor of Larson, finding that the malpractice claim was untimely filed from' the final judgment. The attorney’s fees judgment was a separate ruling and could not alter the final judgment. The second district reversed the trial court, concluding that the legal malpractice action did not'accrue until the judgment for attorney’s fees was entered, because that ended judicial labor on the entire underlying proceeding.

The court reviewed Silvestrone and reaffirmed its commitment to a bright-line rule to determine when a cause of action, for legal malpractice accrues.

The crux of Silvestroné’s reasoning is that it cannot be known with sufficient certainty that the client has suffered any loss caused by the lawyer’s negligence until the finality of a judgment adverse to the client. A favorable result for the-client in the lawsuit—-which could be. the result,of appellate proceedings— would, of course, mean that the client had suffered no loss, Silvestrone’s rule thus merely establishes a bright-line for establishing when the client has suffered some loss as a consequence of the attorney’s negligence. It does not require that there be a determination of the full extent of all losses suffered by the client due to the lawyer’s negligence.

Id. at 42 (emphasis in original). It also reaffirmed its commitment, in Peat Mar-wick that a cause of action for legal malpractice does not accrue until the underlying legal proceeding has been completed on appellate review because, until that time, one cannot determine if there was any actionable error by the attorney. To require a cause of action to accrue prior to the exhaustion of appellate review could result in a situation.where a.malpractice claim would have to be brought while an appeal was pending, with the potential that the client, may have to take two inconsistent positions in the two causes of action.

Furthermore, addressing the concern that compelling a, malpractice action to be filed prior to the conclusion of the appeal would detrimentally impact the attorney-client relationship, the court concluded that its rule requiring finality upon appeal prevented any damage to an existing relationship.

As a practical matter, by holding that redressable harm is not established for purposes of a legal malpractice claim “until the final judgment becomes final,” Silvestrone, 721 So.2d at 1175, we substantially addressed the basic concern regarding undue disruption of the attorney-client relationship underlying the continuing representation doctrine. Because finality requires the conclusion of appellate review, if any, there is no requirement that an ongoing - attorney-client relationship he disrupted until two years after the appellate process has run its course.

Id. at 45.

The supreme court’s consistent reliance on a bright-line rule;that a cause of action for legal malpractice in litigation does not accrue until the underlying legal proceedings are complete through appellate review compels us to reverse . the trial court’s summary judgment. The final judgment of January 24, 2011, was appealed and reversed in part, requiring the issuance of an amended final judgment which was also appealed but voluntary dismissed in October 2013. That is the date upon which the final judgment was truly final.

Contrary to the trial court’s conclusion, nothing in the supreme court opinions suggests that a judgment may be final for purposes of the running of the statute of limitations for a malpractice action as to some issues but not others, To parse an appeal to determine whether an issue relating to the later claim of malpractice was raised in the brief would invite the very case by case determination of the accrual date for a legal malpractice that the supreme court rejected in Silvestrone. It could also result in the disruption of the attorney-client relationship during an appeal, which problem the bright-line rule of Silvestrone cured. See Larson.

. The legal malpractice action was timely filed from the .time the judgment became fully final. Therefore, the court erred in entering summary judgment-on the statute of limitations.

Reversed and remanded for reinstatement of the complaint and for further proceedings.

Damoorgian and Levine, JJ., concur.


text:
    ESTATE OF Frank Osgood BUTLER, II a/k/a Frank O. Butler, Appellant, v. JPMORGAN CHASE BANK, National Association, Village of Royal Palm Beach, Rickard R. Evans, and Rickard Evans, Personal Representative of the Estate, Appellees.
    No. 4D16-2489
    District Court of Appeal of Florida, Fourth District.
    [October 25, 2017]
    Robert V. Potter ;and Caitlein J. Jammo of Johnson, Pope, Bokor, Ruppel & Bums, LLP, Clearwater, for appellant.
    Elliot B. Kula, W. Aaron Daniel and William D. Mueller of Kula & Associates, P.A., Miami, for appellee JPMorgan Chase Bank National Association.
   Per Curiam.

Affirmed. See D’Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942).

Warner, Levine, JJ., and Buchanan, Laurie E., Associate Judge, concur.


text:
    Timothy Donald HELTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2656.
    District Court of Appeal of Florida, First District.
    May 12, 2015.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The State charged Appellant, Timothy Donald Helton, with one count of aggravated battery and one count of simple battery arising from an incident that occurred on May 31, 2011, involving two victims. Helton’s first trial resulted in a hung jury, and he was retried in January 2013. The second trial yielded guilty verdicts on both counts. The trial court reclassified the aggravated battery, a second-degree felony, to a first-degree felony based on the jury’s specific finding that Helton used a deadly weapon in committing the crime, and imposed a life sentence. For the simple battery, the court sentenced Helton to time served.

On appeal, Helton challenges only the conviction and sentence for aggravated battery. He argues that the instructions the court gave the jury on the justifiable use of deadly force and the duty to retreat were inconsistent and constituted fundamental error, and that the court erred by reclassifying the aggravated battery to a first-degree felony because use of a deadly weapon is an element of the offense. Because we agree that fundamental error occurred, we reverse Helton’s conviction and sentence for aggravated battery, and remand for a new trial on that count. For that reason, we do not address the reclassification issue.

Helton’s only defense at trial was that he acted in self-defense, as permitted by the “stand your ground” law. Accordingly, the trial court gave the standard instructions on the justifiable use of force and the circumstances under which Helton could stand his ground in the face of like force, or was required to retreat, if possible. In pertinent part, the court instructed the jury as follows:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which TIMOTHY DONALD HELTON is charged if the injury to CRAIG RICHARD NELSON, JR resulted from the justifiable use deadly force.
“Deadly force” means force likely to cause death or great bodily harm.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.
However, the use of deadly force is not justifiable if you find:
1. TIMOTHY DONALD HELTON initially provoked the use of force against himself, unless:
(a) The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on CRAIG RICHARD NELSON, JR. [or]
(b) In good faith, the defendant withdrew from physical contact with CRAIG RICHARD NELSON, JR and clearly indicated to CRAIG RICHARD NELSON, JR that he wanted to withdraw and stop the use of deadly force, but CRAIG RICHARD NELSON, JR continued or resumed the use of force.
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself.

(Emphasis added).

In Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014), rev. granted, 168 So.3d 229, 2014 WL 7251662 (Fla. Dec.16, 2014), and more recently in Tramel v. State, No. 1D13-2285, 2015 WL 2186613 (Fla. 1st DCA 2015), we held the identical instructions constituted fundamental error because an inconsistency regarding the duty to retreat essentially negated the defendants’ sole defense. As we reasoned in Floyd:

[T]he jury was instructed that if the use of deadly force is necessary to prevent imminent death or great bodily harm to oneself or others, then deadly force is justified without regard to any effort to retreat so long.as the defendant is not. engaged in unlawful activity. A defendant may :not use deadly force if the defendant provoked another showing force; however, if the defendant provoked , another, who then uses force so great as to put the defendant in fear of death or great bodily harm, then the defendant .may use deadly force, but only if the defendant has first exhausted every means of escape. In effect, the jury instruction here provided that Floyd did not have to retreat before meeting deadly force with deadly force if in fear of death or great bodily harm and did have a duty to try to retreat before using deadly force if in fear of death or great bodily harm.

151 So.3d at 454 (emphasis in original). Because the contradiction in the instructions effectively negated possible application to Floyd’s only defense—self-defense under the “stand your ground” law—fundamental error occurred, requiring reversal of Floyd’s convictions. Id. (citing Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985)).

The circumstances are the same here, constraining us to apply our holding in Floyd and find that the contradictory justifiable-use-of-force jury instructions the trial court gave negated Helton’s only defense and resulted in fundamental error. The State argues that Helton’s trial counsel waived the error by affirmatively agreeing to the instructions. Although it is possible to waive fundamental error, see Ray v. State, 403 So.2d 956, 960 (Fla.1981), the record before us does not reflect that Helton’s counsel specifically agreed to the instruction such that waiver occurred, see Moore v. State, 114 So.3d 486, 489 (Fla. 1st DCA 2013). In fact, defense counsel objected to the instruction initially, pointing out the very contradiction we now find problematic,. But upon the trial court’s assurance that the instruction read as a whole was not inconsistent, defense counsel withdrew the objection. We are not inclined to find waiver where the trial court essentially talked defense counsel out. of an objection.

Based on our decision in Floyd, we reverse Helton’s conviction and sentence for aggravated battery, and remand for a new trial on that count only.

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

ROBERTS, MARSTILLER and SWANSON, JJ„ concur.

      . See § 776.013(3), Fla. Stat. (2011).

      . See Fla. Std. Jury Instr. (Crim.) 3.6(f).

      . _ The Florida Supreme Court, having granted the State's petition for discretionary review of the decision in Floyd, issued an order on December 11, 2014, granting the State’s motion to recall this.court’s mandate, and staying proceedings until disposition of the petition for review. Order, State v. Floyd, No. SC14-2162, 2014 WL 7251662 (Fla. Dec. 11, 2014) (order staying proceedings).


text:
    K.O., A Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D16-1065, 1D16-1066, 1D16-1067, 1D16-1069, 1D16-1070, 1D16-1071, 1D16-1073, 1D16-1074, 1D16-1075.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2016.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ORDER STRIKING ANDERS BRIEF

PER CURIAM.

Appellant filed an initial brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which requires that this court independently “examine the record to the extent necessary to discover any errors apparent on the face of the record.” State v. Causey, 503 So.2d 321, 322 (Fla.1987). Upon review by the court, it appears that'a sentencing error may exist. The Final Disposition Order is void of notation as to the length of Appellant’s probation. The trial court did not address the length of time Appellant is to serve on probation or whether the probation is indefinite. In addition, the juvenile court did not make a notation of the length of probation time on the written Order. In S.T. v. State, 8 So.3d 1153, 1154 (Fla. 1st DCA 2009), this court remanded for entry of a corrected order to specify the length of the appellant’s probation. See J.M.W. v. State, 935 So.2d 630, 632 (Fla. 2d DCA 2006) (appellant was entitled to be informed of the length of probation despite withholding adjudication of delinquency).

Accordingly, on the court’s own motion and pursuant to Florida Rule of Appellate Procedure 9.140(g)(2)(B), the initial brief filed April 21, 2016, is stricken in order to permit the filing of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Counsel for Appellant shall file the motion with the lower tribunal within twenty days of- the date of this order, arid the lower tribunal is directed to resolve the motion in accordance with rule 3.800(b)(2)(B). The clerk of the lower tribunal shall thereafter transmit a supplemental record on appeal pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), and counsel for appellant shall file an amended initial brief within twenty days following transmittal of the supplemental record.

BILBREY, KELSEY, and M.K. THOMAS, JJ., concur.

      . Rule 9.140 was recently amended'to address circumstances when a sentencing error is identified in the course of an Anders review. The amendments to Rule 9.140 became effective July 1, 2016.


author: WALLACE, Judge.

text:
    Spencer BAKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5501
    District Court of Appeal of Florida, Second District.
    Opinion filed March 24, 2017.
    Spencer Baker, pro se.
    Amanda Peterson of Law Offices of Peterson, P.A,j Mulberry, for Appellant.
    Pamela Jo Bondi, Attorney; General, Tallahassee, for Appellee.
   ORDER ON APPELLANT’S MOTION FOR REHEARING

WALLACE, Judge.

The Motion for Rehearing filed by the pro se Appellant, Spencer Baker is granted. Accordingly, the per curiam opinion filed January 25, 2017, is withdrawn. Amanda Peterson, appointed counsel for Appellant, shall provide the complete record, including supplements, to the Appellant within twenty days of this order, and she shall certify to this court in writing that she has done so. The pro se Appellant shall have sixty days from the date of this order to file an initial brief and to serve a copy on the Attorney General at 3507 E. Frontage Road, Suite 200, Tampa, FL 33706-7013.

LaROSE and LUCAS, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Lisa Lockard MARTINEZ, Appellant, v. Victor MARTINEZ, Appellee.
    Case No. 2D15-5154
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017.
    Karol Williams, Esq. of Karol K. Williams, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   SILBERMAN, Judge.

Lisa Lockard Martinez, the Wife, seeks review of a final judgment of dissolution of marriage. The Wife challenges the trial court’s decision to award her permanent periodic alimony in the amount of $600 per month. We reverse because the alimony award is insufficient to meet the Wife’s basic needs even though Victor Martinez, the Husband, has the ability to pay.

At the time of filing, the parties had been married for thirty years and their children were no longer minors. The parties entered into a- marital settlement agreement (MSA) which equitably distributed their limited assets. The parties agreed to stop making payments on the marital home, list it for short sale, and split any proceeds. The Wife received half of the Husband’s military retirement, which amounted to $1100 monthly. Both parties took on significant marital debt. The trial court approved the MSA and incorporated it in the final judgment of dissolution.

The Wife’s request for alimony was decided after a trial at which the Wife proceeded pro se. The Wife testified that she worked during the marriage and took care of the parties’ children while the Husband was stationed overseas with the military. The Wife worked as a bartender during the early years of the marriage. She worked as a licensed real estate agent from at least 2006 to 2011 or 2012, and she earned between $40,000 and $150,000 annually with the highest salary being paid during the real estate boom in 2006 and 2007. The Wife was in a motorcycle accident in 2012, and she was not working at the time of trial. She had filed a claim for federal disability benefits, but the claim was denied. The Wife was in the process of resubmitting her claim which, if approved, would pay $886 per month.

The Wife said she paid her living expenses during these proceedings using a legal settlement of $25,000, voluntary monthly payments of between $1000 and $1500 from the Husband,' and an unspecified amount of additional money the Husband gave her upon request. She did not present a financial affidavit listing her monthly expenses and only testified regarding two of those expenses: (1) $1200 in rent and (2) $567 in medical insurance. She requested that the Husband pay $2000 in monthly alimony.

The Husband testified that he was retired from the military and working for the government on a contract basis. He was also receiving a disability check. The Husband has a net monthly income of $5654.78. The Husband’s monthly expenses, including payments to creditors, are approximately $4635. He said he had been paying the Wife $900 a month during these proceedings and acknowledged he gave her extra money when she requested it. He asserted that the Wife was physically capable of going back to work and had quit her job just to “stick it to” him. In any event, he stated he could only afford to pay $500 in alimony;

The court made a general finding, that the Wife has a need for alimony and the Husband has the ability to pay. However, the court did not make a specific calculation of the Wife’s income. The court found that the Wife was receiving the $1100 monthly retirement payment and noted that she will receive $886 a month if her disability claim is approved. The court also found that the Wife had made as much as $150,000 annually as a realtor and quit work for reasons not attributed to her medical issues. However, the court did not indicate ’ it was imputing income to the Wife. It merely stated that the Wife “could probably get a good paying job and get back to a good financial situation fairly quickly, should she desire to do so.”

The court described the parties’ standard of living during the marriage as “a modest middle class lifestyle,” As for the Wife’s expenses, the court stated that the evidence presented by the Wife was “cryptic.” The only specific expense the court recognized was $1200 for rent. The court concluded, “Despite the lack of evidence as to Wife’s specific need the Court does find that Wife has a need for Alimony, if only to meet her only stated need, that of an apartment.!’ The court awarded the Wife $600 in permanent periodic alimony without specifying how it calculated that amount.

“permanent periodic alimony is intended to allow the requesting spouse ‘to maintain the standard of living established by the parties during the marriage and to ensure that, viewing the totality of the circumstances, one spouse is not shortchanged.’” Zinovoy v. Zinovoy, 50 So.3d 763, 766 (Fla. 2d DCA 2010) (quoting Griffin v. Griffin, 906 So.2d 386, 388 (Fla. 2d DCA 2005)). The trial court has broad discretion in awarding alimony, but' the award must be commensurate with one spouse’s need and the other’s ability to pay. Id. at 766-67. The award will only be affirmed if it is supported by competent, substantial evidence. Id. at 766.

We conclude that the $600 alimony award is not supported by competent, substantial evidence. Indeed, it is insufficient to meet the Wife’s basic needs even though the Husband has the ability to pay. As to the Wife’s income, the evidence was sufficient to establish only that the Wife was receiving $1100 monthly from the Husband’s military retirement. Although the trial court noted that the Wife will receive $886 a. month if her, disability claim, is approved, the court could not rely on this income because it was based on future speculation. See Searcey v. Searcey, 923 So.2d 528, 530 (Fla. 2d DCA 2006); Alcantara v. Alcantara, 15 So.3d 844, 846 (Fla. 3d DCA 2009).

If the court was intending to impute income to the Wife, it failed to set forth an amount of income that was supported by the evidence. The court’s finding that the Wife had earned as much as $150,000 as a realtor is not sufficient to support imputa? tion of this amount without evidence she could earn this amount at present. See Valentine v. Van Sickle, 42 So.3d 267, 272-73 (Fla. 2d DCA 2010); Rabbath v. Farid, 4 So.3d 778, 784 (Fla. 1st DCA 2009). The testimony only established that the Wife earned this salary during the real estate boom in 2006 and 2007.

Despite the fact that the Wife’s evidence regarding her living expenses was “cryptic,” she still presented unrebutted testimony that she had. monthly expenses of $1200 in rent and $567 in medical insurance. In addition, the MSA establishes that the Wife has taken on significant marital debt. However, the trial court recognized only the Wife’s rent expense and awarded alimony “only to meet her only stated need, that of an apartment.” When the evidence of the Wife’s additional expenses is considered, the' $600 alimony award is clearly not commensurate with the Wife’s basic needs.

As for the Husband’s ability, to pay, the evidence established that he was earning $5654.78 monthly. Additionally, he had been able to pay the Wife temporary alimony of at least $900 a month plus extra amounts here and there during the course of these proceedings. The $600 alimony award permitted the Husband to pay all of the monthly expenses on his financial affidavit, which totaled $4635, and still have a $1019 monthly surplus.

Under the totality of the circumstances, the $600 alimony award shortchanged the Wife.- The alimony award does not allow the Wife to maintain the parties’ “modest middle class lifestyle” while it allows the Husband to do so. Because the award does not provide for the Wife’s needs as they were established during the marriage despite the Husband’s apparent ability to meet those needs, it constituted an abuse of discretion. See Melton v. Melton, 79 So.3d 154, 156-57 (Fla. 2d DCA 2012).

We therefore reverse and remand for the court to reconsider the alimony award. On remand, the court may take additional evidence to establish the parties’ current financial circumstances. See Levy v. Levy, 900 So.2d 737, 744-45 (Fla. 2d DCA 2005). The final judgment of dissolution is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . This amount was calculated by considering the Husband’s testimony on cross-examination admitting that he overstated $510 of his expenses.


author: EVANDER, J.

text:
    Greg H. KLEBANOFF and Thuy Klebanoff, Appellants, v. BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as Trustee for the Certificateholders of CWALT Inc., Alternative Loan Trust 2006-HY11, Mortgage Pass-Through Certificates, Series 2006-HY11, et al, Appellees.
    Case No. 5D16-1637
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 30, 2017
    Rehearing En Banc Denied October 9, 2017
    Tanner Andrews, of Tanner Andrews, P.A., Deland, for Appellants.
    A, Dpnald Scott, Jr., of Clarfield, Okon, Salomons & Pincus, P.L., West Palm Beach, for Appellees.
   EVANDER, J.

Greg Klebanoff and Thuy Klebanoff (“the Klebanoffs”) appeal the trial court’s final judgment of foreclosure in favor of the Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2006-HY11, Mortgage Pass-Through Certificates, Series 2006-HY11 (“the Bank”). On appeal, the Kleba-noffs argue that this court should reverse the final judgment of foreclosure because the Bank’s action was barred by the applicable statute of limitations. We affirm.

On' June 26, 2014, the Bank filed a mortgage foreclosure complaint against the Klebanoffs, alleging that “[tjhere [was] a default under the terms of the Note and Mortgage for the March 1, 2009 payment and all subsequent payments due thereafter,” The complaint' further alleged that the Bank was “declar[ing] the full amount payable under the Note and Mortgage.” The Klebanoffs- filed' an answer generally denying the allegations of the complaint and raising the statute of limitations as an affirmative defense. At trial, the Bank presented evidence reflecting that the Kleba-noffs had failed to make the March T, 2009 payment and any payment thereafter. The trial court entered a final judgment in favor of the Bank, and this appeal followed. ■ ■ ‘

The Klebanoffs argue that pursuant to our decision in Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957 (Fla. 5th DCA 2015), the trial court was constrained to dismiss the Bank’s action based on the applicable five-year statute of limitations in section 95.11(2)(c), Florida Statutes (2014). Contrary to the Klebanoffs’ contention, Hicks is distinguishable. In Hicks, although the complaint alleged that the mortgagors were in a continuing state of default, the parties proceeded to trial on stipulated facts that referenced only the initial default. 178 So.3d at 958. Specifically, the bank’s counsel stated:

There was a default on the loan that occurred in 2006. The prior holder of the note, U.S. Bank, filed a foreclosure action against defendants in 2006. That action was voluntarily dismissed in 2008.
In 2011, Wells Fargo, who is the current holder of the note and mortgage, sent a notice of intent to accelerate to the defendants, and then filed a new foreclosure action in 2013.

Id. (footnote omitted). We reversed the final judgment of foreclosure, concluding that the foreclosure action should have been dismissed because it was based on a default that occurred outside of the five-year statute of limitations. Id. at 959.

The dispositive facts in this appeal are not in dispute. Because the earlier voluntary dismissal was not an adjudication on the merits, Bank was entitled to bring a later suit to foreclose on the note and mortgage. However, the suit must still be based on an act of default within the five-year statute of limitations period. Here, Bank’s complaint was filed in 2013, based on an alleged default occurring on June 1,2006. Because trial counsel for the parties stipulated to the court that the facts were undisputed, with Bank’s counsel additionally confirming that the sole determinative issue to resolve at trial was one of law, the court erred when it failed to dismiss the foreclosure complaint with prejudice based on a default that occurred outside of the five-year statute of limitations period.

Id. (citations and footnote omitted).

Hicks is consistent with the Third District Court of Appeal’s later opinion in Collazo v. HSBC Bank USA, N.A., 213 So.3d 1012 (Fla. 3d DCA 2016). In Collazo, our sister court similarly reversed a final judgment of foreclosure because the complaint was filed more than five years after the alleged payment default. 213 So.3d at 1012. Notably, in his concurring opinion, Judge Shepherd emphasized that the bank had proceeded at trial only as to the initial default:

[T]he foreclosure action in the case before us was commenced on January 24, 2014, based on a default in payment alleged to have occurred on April 1, 2008. Counsel for HSBC insisted on trying the case on the basis of that default. After hearing the evidence, the trial court entered final judgment and calculated all amounts due and payable based upon that default date over borrowers’ objections and involuntary dismissal motions. In short, unlike counsel for the lenders in both the [U.S. Bank National Association v. Bartram, 140 So.3d 1007 (Fla. 5th DCA), review granted, 160 So.3d 892 (Fla. 2014) and Deutsche Bank Trust Company Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016), proceeding stayed, No. SC16-732 (Fla. May 31, 2017) ] cases, who circumvented the statute of limitations in those cases by alleging a default within the five-year limitation period, counsel for HSBC, when challenged, doubled down on a stale default outside the limitation period.

Id. at 1013-14 (Shepherd, J., concurring).

By contrast, in the instant case, the Bank both alleged and proved that the Klebanoffs had defaulted on each and every mortgage payment from March 1, 2009, and onward. Because the Bank alleged and proved missed payments within the five years prior to the filing of its complaint, its action was not barred by the statute of limitations. See Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 198 So.3d 1140, 1142-43 (Fla. 2d DCA 2016), review granted, No. SC16-1680 (Fla. Nov. 2, 2016) (holding that although mortgagor’s initial default occurred more than five years prior to bank’s foreclosure complaint, bank’s allegation that mortgage was currently in default and that no payments had been made since initial default was sufficient to establish that foreclosure could be based on any of missed payments since initial breach, and was therefore not barred by applicable five-year statute of limitations); see also Dorta v. Wilmington Tr. Nat'l Ass’n, 25 Fla. L. Weekly Fed. D267, 2014 WL 1152917 (M.D. Fla. Mar. 24, 2014) (“While [mortgagee] may be barred from seeking foreclosure based on defaults more than five years old, it is not barred from seeking foreclosure or from invoking its right to accelerate the entire indebtedness based on more recent defaults .... ”); Bartram v. U.S. Bank Nat’l Ass’n, 211 So.3d 1009, 1011 (Fla. 2016) (“Once there were future defaults, however, the Bank had the right to file a subsequent foreclosure action— and to seek acceleration of all sums due under the note—so long as the foreclosure action was based on a subsequent default, and the statute of limitations had not run on that particular default.”).

Because the Bank alleged and proved that the subject mortgage was in a continuous state of default, which included defaults within the five-year statute of limitations, its action was not barred, even if the initial default was alleged to have occurred more than five years prior to the filing of the complaint.

AFFIRMED.

COHEN, C.J. and EDWARDS, J., concur.

      . Although Bollettieri certified conflict with Hicks, for the reasons indicated above, we believe that those two cases are not in conflict.


text:
    Diane SCOTT, Appellant, v. Erica STEWART, Appellee.
    No. 3D16-2885
    District Court of Appeal of Florida, Third District.
    Opinion filed August 9, 2017.
    Rehearing Denied September 20, 2017
    Diane Scott, in proper person.
    Erica Stewart, in proper person.
    Before EMAS, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (‘Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”).


author: LUCK, J.

text:
    Emiliano E. NORIEGA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1740
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SUAREZ, FERNANDEZ and LUCK, JJ.
   LUCK, J.

Defendant Emiliano E. Noriega, after trial, .was convicted of trespassing in the backyard of Mr. and Mrs. Eduardo Go-doy’s home. Noriega contends on appeal that his conviction should be reversed because two statements made by the state during its closing argument shifted and misstated the burden of proof. Eyen though he did not object to either statement, Noriegá claims that together they resulted in fundamental' error. After review of the record and briefs, we find no error, and affirm.

In the early morning hours of February 8, 2016, Eduardo Godoy, a retired security officer, was awoken by the barking of his neighbor’s dog. Looking through the window of his bedroom, he saw Noriega walking around his backyard and called 911. As Godoy spoke with the 911 dispatcher, Noriega started walking toward the front of the house. The dispatcher told Godoy not to leave his home, but Godoy decided to stop the man, who he believed to be a burglar. Godoy armed himself and encountered Noriega in the front driveway holding a bag, which Godoy recognized as belonging to his daughter and had been stored in an open utility room in the backyard. At gun point, Godoy ordered Noriega to put his hands up and get down. Noriega dropped, the bag, containing, batteries and flashlights, said “I’m going home,” and ran off. Godoy initially pursued but retreated when he saw Noriega stopped, by police about three houses down from his home.

Noriega was arrested and charged with burglary of an occupied dwelling and petit theft. At his trial, Godoy, his wife and daughter, and the arresting officer testified. Godovs wife and daughter corroborated Godo/s testimony. The arresting officer testified that Noriega was out of breath from running when he was stopped, but was otherwise calm and obeyed the officer’s instructions in all respects. Noriega was not wearing gloves, a mask, or a hoodie and carried no weapons, burglary tools, or a bag.

The theory of defense at trial, which was relayed to the jury beginning with opening statement, was that Noriega had been out late at a Super Bowl party, had exited a bus near Godoy s home, and on the way home felt the need to urinate. Noriega decided to" go into the bushes in front of Godoy’s home where he was later confronted by the armed Godoy. The defense denied Noriega was in the backyard or that he took any bag.

During the state’s closing argument, the state first reviewed the evidence supporting the elements of the crimes charged and then, without objection, argued:

But you should know. You can only use the evidence presented to you. And the. arguments by the attorneys in either opening and closing by the State or by the defense is not evidence. In fact, even the questions by the attorneys either the State or the defense to the witnesses are not evidence. The evidence before you is what the witnesses say, that is what you’re assessing..
So I would like you to note fiiat there is zero evidence of the defendant urinating. There is zero evidence of any bus drop off. There is zero evidence any party go. Now, there’s no evidence of that because, of course, it didn’t happen. ...
[Godoy’s wife and daughter] told you only what they saw and that corroborates what happened that night. Because that’s how it happened. What simple is true.
That is your job through the day is to ask yourselves three words; what is true? Because described on the courtroom wall is we dp labor here seek only the truth. So what happened here? You know what happened beyond a reasonable doubt.

Subsequently, the jury convicted Noriega of. the lesser-included offense of trespass.

On appeal, Noriega claims he was deprived of a fair trial by the state’s closing argument, which he contends misstated the burden of proof and shifted the burden from the state to him. Noriega candidly acknowledges that, because he failed to contemporaneously object to the argument during the trial, the. challenged comments were not preserved for appellate review. See Tillman v. State, 471 So.2d 32, 35 (Fla. 1985) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) Therefore, he urges this court to review the cumulative effect of the alleged errors under the fundamental error standard. See Brooks v. State, 762 So.2d 879, 898-99 (Fla. 2000) (“The sole exception to the general rule [requiring contemporaneous objection] is where the unobjected-to comments rise to the' level of fundamental error, which has been defined as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” (quoting McDonald v. State, 743 So.2d 501, 505 (Fla. 1999)). We find no error, fundamental or otherwise.

Noriega, first, contends the state’s closing argument that there was “zero evidence of the defendant urinating” shifted the burden of proof from the state to him. Where the defendant presents and argues for its theory of the case, the state is permitted to respond (if true) that the defendant’s theory is not supported by the evidence at trial. The Florida Supreme Court has twice said so within the last decade.

In Scott v. State, 66 So.3d 923 (Fla. 2011), the state introduced at trial a jailhouse recording of the defendant and his co-conspirator talking about the robbery and murder. Id. at 927. During the defendant’s closing . argument, he “insinuated that [the co-conspirator] had scripted the jailhouse conversation with a third party in order ‘to go home’ because [the co-conspirator] was the actual killer.” Id. at 930. The defendant’s theory, in other words, was that the co-conspirator “scripted this conversation with someone other than” the defendant in order to shiéld himself from a longer sentence. Id. The state, in its closing argument, “went no further than to point out the lack of evidence to support [the defendant’s] alternative theory and that the [s]tate’s evidence on this matter was uncontradicted.” Id. This 'response, the Florida Supreme Court concluded, “did not constitute impermissible burden-shifting, but [was] rather invited responses to [the defendant’s] own suggestion that [the co-conspirator] could have scripted the recording in an effort to frame [the defendant] for the murder.” Id. “[T]he [s]tate is permitted to emphasize uncontradicted evidence for the narrow purpose of rebutting defense arguments since the defense has invited the response.” Id. at 929-30 (quotation omitted).

Likewise, in Poole v. State, 997 So.2d 382 (Fla. 2008), the defendant said in closing argument that he “acknowledged that he committed the crimes of sexual battery, robbery, and burglary but denied that he was the person who inflicted injuries on [the victims].” Id. at 390. In response, the state argued “that there was no evidence in the case, to support the argument that [the defendant] acknowledged he committed those crime or to support the argument that someone else inflicted the injuries on the victims.” Id. The state’s comments, the Court explained, “were invited responses,” and therefore “cannot -be deemed improper.” Id.

Here, too, Noriega argued an alternative theory of the case that he was walking past Godoy’s home when nature called and Noriega used Godoy’s bushes as a restroom. Godoy, the theory goes, made up the story that Noriega entered Godoy’s property and stole the sack of flashlights because Godoy improperly threatened and chased Noriega with a firearm, and Godoy didn’t want to get in trouble with the police. This is what Noriega said in his opening statement:

At that moment in time Mr. Godoy realizes that he just held somebody at gun point who was not a burglar[ ], who was not doing anything wrong—Mr. Go-doy has to come up with a story. Unfortunately, for Mr. Noriega it’s a story that puts him in Mr. Godoy’s back yard. So Mr. Godoy tells the police oh yeah that guy, he was in my front yard. He was in my back yard going through my stuff. He was stealing from me.....
.... [A]s [Noriega’s] walking down the path to his friend[’]s house and then he gets to 969 East 29th Street, now being 52-years-old at that time and now 53, with—or what he had consumed, Mr. Noriega felt the need to urinate.
Now, I’m not asking if you like this and it’s not okay. But what if he goes to the bushes on 969 East 29th Street-^ and that fence is not protected by anything, and in the bushes and was about to urinate. The problem is that [Noriega’s] a little too close to Federico Go-doy’s cars. And it was that moment in time Federico Godoy comes out with the gun ....

In response to Noriega’s defense theory that he did not enter Godoy’s property but was instead using the bathroom at the edge of the property line, the state was permitted to argue the lack of evidence supporting this theory. Indeed, of the four witnesses that testified at trial (Godoy, his wife and daughter, and the law enforcement officer who made the arrest), not one said Noriega was urinating in the bushes. As in Scott and Poole, the state’s lack-of-evidenee argument was an invited and fair response to Noriega’s defense theory, and not error.

Noriega, next, contends that the state’s “what is true” comment misstated the burden of proof by focusing the jury on whether it believed the state’s witnesses rather than on whether the state proved its case beyond a reasonable doubt. While Noriega’s focus is on two lines of the state’s ten page closing argument, we must look to the closing, as a whole to determine whether there was error. See Merck v. State, 975 So.2d 1054, 1061 (Fla. 2007) (“We look at the closing argument as a whole to determine whether that discretion was abused.”); Wilchcombe v. State, 842 So.2d 198, 200 (Fla. 3d DCA 2003) (“Here, on the whole, the comments made during closing were fair comments on the evidence and direct responses to defense arguments, and did not amount to ‘fundamental error’ which tainted the validity of the trial.”). Here, reviewed as a whole, the state did not misstate the burden of proof. The state repeatedly told the jury, .that the evidence proved Noriega committed the charged crimes beyond a reasonable doubt. '

For example, the state argued:

How there is zero reasonable doubt in this case, that forced doubts, that may allow you to entertain a friction [sic] about how a family of three and police framed a man and none of even know because it wouldn’t be just Mr. Godoy would be part of this conspiracy and lying.... That’s not reasonable. The doubt must be reasonable.
The case is full of facts like the bag. Facts that are on -their own have no explanation but for dealings. Facts are defy reasonable doubt and in this case defy a verdict of not guilty.

The state also argued:

. The only two questions that legally matter, did any part of [Noriega] enter someone’s home including as the Judge just finished reading to you the enclosed space around it? And did the defendant in crossing that threshold do so because he was looking to steal something. If you answer yes to those questions beyond a reasonable doubt, your verdict must be guilty.

And the state argued: “So we know at the very least the defendant was trespassing. That, you know beyond a reasonable doubt as well.” Even in the portion of .the closing argument that Noriega claims misstated the burden of proof, the state emphasized the correct burden:

That is your job through the day is to ask yourself three words; what is true? Because described on the courtroom wall is we do labor here seek only the truth.' So what happened-here? You know what happened here beyond a reasonable doubt.

Taken as a whole, including the trial court’s instructions to the jury before and after-the closing arguments, the state’s closing did not’ misstate the burden the proof, The state was clear that the jury had to' find that Noriega committed the charged crime beyond a reasonable doubt based on the evidence and testimony presented during the trial.

For these reasons, Noriega’s trespass conviction and sentence are affirmed.

Affirmed.

      . Emphasis has been added to each of the quotes from the state's closing argument that follow,


text:
    Ronald DANIEL, Appellant, v. Leon AVREN and United Health Centers, Inc., Appellees.
    Case No. 2D17-5
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017
    Joseph A. Davidow, and Yasser Lakhlifi, of Willis & Davidow,' L.L.C., Naples, for Appellant.
    Todd M. Rich of Holmes Kurnik, P.A., Naples, for Appellee Leon Avren.

      No appearance for Appellee United Health Centers, Inc.
   PER CURIAM.

Affirmed. See § 673.4021(2)(b), Florida Statutes (2013); Bank of N.Y. Mellon v. Condo. Ass’n of La Mer Estates, Inc., 175 So.3d 282, 285 (Fla. 2015).

CASANUEVA, LUCAS, and BADALAMENTI, JJ., Concur.


text:
    Derrick Owen CARPENTER, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    CASE NO. 1D17-234
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017.
    Rehearing Denied October 11, 2017
    David M. Robbins and Susan Z. Cohen, Epstein & Robbins, Jacksonville, for Appellant.
    Christie S. Utt, General Counsel, and Jason Helfant, Senior Assistant General Counsel, Department of Highway Safety & Motor Vehicles, Lake Worth, for Appellee.
   PER CURIAM.

DENIED. See Arthur v. State, 818 So.2d 589, 592 n.4 (Fla. 5th DCA 2002) (stating that the Department’s records are “prima facie 'evidence”-that the driver committed the offenses identified in its records, and that the burden then shifts to the driver to dispute the evidence).

ROWE, MAKAR, and JAY, JJ., CONCUR.


text:
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellant, v. BODY PARTS OF AMERICA, INC., Appellee.
    CASE NO. 1D16-4426
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017.
    Rehearing Denied October 11, 2017
    Jonathan P. Hémpfling of Marcadis Singer P.A, Tampa, for Appellant. ■
    Christopher M. Costello of Brannon, Brown, Haley & Bullock, P.A., Lake City, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s final order dismissing its. Second Amended Complaint for failure to state a cause of action. In deciding the propriety of this order, we are “held” to the following, well-established principles of review:

“The primary purpose of a motion- to dismiss is to request the trial court to determine whether the complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996). In making this determination, the trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations. City of Gainesville v. State, Dept. of Transp., 778 So.2d 519 (Fla. 1st DCA 2001); Cintron v. Osmose Wood Preserving, Inc., 681 So.2d 859, 860-61 (Fla. 5th DCA 1996); Provence. It is not for the court to speculate whether the allegations are true or whether the pleader has the ability to prove them. City of Gainesville; Provence. Thus, ‘[t]he question for the trial court to decide is simply whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the relief requested.’ Cintron, 681 So.2d at 860-61. When an appellate court reviews an order determining the sufficiency of a complaint, the appellate court must apply the same principles as the trial court. City of Gainesville. Because the determination whether a complaint sufficiently states a cause of action resolves an issue of law, an order granting a motion to dismiss is reviewable on appeal by the de novo standard of review. Id.”

Sobi v. Fairfield Resorts, Inc., 846 So.2d 1204, 1206-07 (Fla. 5th DCA 2003) (emphasis added) (footnote omitted) (quoting Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001)); accord Toney v. C. Courtney, 191 So.3d 505, 507 (Fla. 1st DCA 2016) (“At this stage in the proceedings, we are required to accept as true the amended complaint’s well-pleaded factual allegations and to draw all reasonable inferences from the allegations in the appellant’s favor.”)

In the present case, confining our review to the four-corners of the complaint and its attachments, accepting as true all its well-pleaded allegations, and drawing all inferences in favor of Appellant, we conclude that the Second Amended Complaint sufficiently states a cause of action so as to withstand a motion to dismiss. Accordingly, we reverse the order on review and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WETHERELL, BILBREY, and JAY, JJ., CONCUR.


text:
    Dytrell JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1263
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Rehearing Denied September 20, 2017
    Dytrell Jones, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.

      Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

On July 26, 2017, the Court affirmed the denial of Dytrell Jones’ motion to correct illegal sentence. On the same date, the Court ordered Jones to show cause why he should not be prohibited from filing further pro se appeals, petitions, motions, or other pleadings in this Court relating to lower tribunal cases F10-1003, F10-21841A, F11-8636B, F11-8637C, and F11-9351A.

Upon consideration of Jones’ response to the order to show cause and the successive, duplicative, pro se appeals brought by Jones, we conclude that good cause has not been shown. As an example, Jones filed a motion in the lower tribunal cases that realleged the post-conviction sentencing issues denied by the lower tribunal previously and affirmed by this Court only two months before he commenced the appeal in the present case. Jones v. State, 2017 WL 1277922 (per curiam affirmed) (Table) (slip op. Apr. 5, 2017). The motion and appeal in the present case were filed without consideration of the prior rulings. Jones has engaged in the filing of other meritless, frivolous, and successive claims in addition to these cases, ignoring prior adverse rulings.

In accordance with State v. Spencer, 751 So.2d 47 (Fla. 1999), and Concepcion v. State, 944 So.2d 1069 (Fla. 3d DCA 2006), Jones is prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his convictions, judgments, and sentences in lower tribunal eases F10-1003, F10-21841A, F11-8636B, F11-8637C, and F11-9351A. We direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to these circuit court case numbers unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing. See Whipple v. State, 112 So.3d 540 (Fla. 3d DCA 2013).

Additionally, any such further and unauthorized pro se filings by Jones may subject him to appropriate sanctions, including the issuance of written findings forwarded to the Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017).


author: EDWARDS, J.

text:
    U.S. BANK, N.A., Successor Trustee to Bank of America, NA, Successor in Interest to LaSalle Bank, NA as Trustee, on Behalf of the Holders of the Washington Mutual Mortgage, etc., Appellant, v. David M. DIAMOND, Janet Diamond and Summer Place Condominium Association of Brevard, Inc., etc., Appellees.
    Case No. 5D16-3609
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 1, 2017
    Rehearing Denied October 11, 2017
    Allison Morat, of Pearson Bitman LLP, Maitland, for Appellant.

      J. Christopher Crowder, of Faro & Crowder, PA, Melbourne, for Appellees, David M. Diamond and Janet Diamond.
    No appearance for other Appellee.
   EDWARDS, J.

Appellant appeals the trial court’s order dismissing its foreclosure . complaint against Appellees. The loan, as documented by the note and mortgage, called for Appellees to pay interest only for. the first ten years before beginning to pay off the principal. Appellant first sued to foreclose the mortgage in 2010, alleging that Appel-lees failed to make the monthly installment payment for October 2009 and that all subsequent payments had not been made. The first foreclosure suit was dismissed. In January 2015, Appellant filed this second foreclosure suit regarding the same note and mortgage against Appellees. In the second suit, Appellant alleged that Appel-lees failed to make the October 2009 payment and that all subsequent payments had not been made.

After trial on this second foreclosure action, • the trial court initially entered judgment in favor of Appellant. Appellees moved for rehearing, seeking entry of involuntary dismissal because Appellant’s complaint identified a “stale date,” i.e., more than five years before the suit was filed, as the date of default; therefore, they argued, it was barred by the applicable statute of limitations, section 95.11(2)(c), Florida Statutes (2016), The trial CQurt agreed, granted the motion for rehearing, and entered its order involuntarily dismissing Appellant’s complaint. For the reasons set forth below, we reverse.

We recently decided Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 42 Fla. L. Weekly D1480 (Fla. 5th DCA June 30, 2017), motion for reh’g filed, where we held that “[bjecause the Bank alleged and proved that the subject mortgage was in a continuous state of default, which included defaults within the five-year statute of limitations, its action was not barred, even if the initial default was alleged to have occurred more than five years prior to the filing of the complaint.” 228 So.3d at 169, 42 Fla. L. Weekly at D1481; accord Forero v. Green Tree Servicing, LLC, No. 1D16-2151, 228 So.3d 440, 2017 WL 2989493 (Fla. 1st DCA July 17, 2017) (holding that subsequent "defaults occurring after a stale date, but within five years of suit, were not barred by the statute of limitations); Kebreau v. Bayview Loan Servicing, LLC, No. 4D16-2010, 225 So.3d 255, 2017 WL 2983999 (Fla. 4th DCA July 12, 2017) (same). The Florida Supreme Court has granted review on the issue in Bollettieri Resort Villas Condominium Ass’n v. Bank of N.Y. Mellon, No. SC16-1680, 2016 WL 9454216 (Fla. Nov. 2, 2016), rev’g Bollettieri Resort Villas Condominium Ass’n v. Bank of N.Y. Mellon, 198 So.3d 1140, 1142-43 (Fla. 2d DCA 2016).

In the . instant case, Appellant alleged and proved at trial that Appellees’ default was continuing because Appellees failed to make any mortgage payments following the initial.default date, October 2009, up to the-time the second suit was filed. As we have previously noted, every new default on a monthly installment presénts a new cause of action for statute. of limitations purposes. See U.S. Bank Nat’l Ass’n v. Bartram, 140 So.3d 1007, 1014 (Fla. 5th DCA 2014). The Florida Supreme Court agreed with our reasoning on this point. See Bartram v. U.S. Bank Nat’l Ass’n, 211 So.3d 1009, 1019 (Fla. 2016). “Therefore, with each subsequent default, the-statute of limitations runs from the date of. each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.” Id.

Accordingly, we find that Appellant’s claims for defaults occurring within five years of the filing of the second foreclosure action were not barred by the statute of limitations. However, Appellant has agreed here, as it did in Batkram, that it cannot recover for those installment payment defaults that occurred more than five years before the current action was filed. Id. at 1015. We reverse and remand to the trial court with instructions to vacate the order dismissing the complaint and to enter judgment in favor of Appellant) but to exclude any defaults that occurred more than five years prior to the filing date of the current suit, nunc pro tunc to the original date judgment was entered. Appellant’s motion for appellate attorney’s fees is granted, with the amount to be determined by the trial court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ORFINGER and EVANDER, JJ., concur.