text:
    Spencer BAKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5501
    District Court of Appeal of Florida, Second District.
    Opinion filed July 19, 2017.

      Amanda Peterson of Law Offices of Peterson, P.A., Mulberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, Spencer Baker appeals the revocation of his probation and resulting sentence. Because. we find no issues with arguable merit, we affirm.

After we previously affirmed Mr. Bak-ei’’s judgment and sentence, Mr. Baker filed a timely motion for rehearing, in which he alleged that he was never provided with a copy of the record on appeal. On March 24, 2017, we granted Mr. Baker’s motion for rehearing and withdrew our per curiam opinion filed on January 25, 2017. Baker v. State, 228 So.3d 168, 2017 WL 1325892 (Fla. 2d DCA Mar. 24, 2017). We ordered Mr. Baker’s appointed counsel, Amanda Peterson, to provide the complete record to Mr. Baker and allowed Mr. Baker sixty days from the date of the March 24. order to file an initial brief. Id Ms. Peterson complied with our March 24 order and certified to this court on March 10, 2017, that she transmitted the record to Mr. Baker. However,' Mr. Baker failed to file an initial brief or any motions within the allotted time period.

Accordingly, we independently reviewed this Anders appeal in the absence of a pro se initial brief for any issues of arguable merit. See Collando-Pena v. State, 141 So.3d 229, 231 (Fla. 1st DCA 2014) (“Once the period for filing and serving a pro se brief has expired, the appeal is perfected, and the appellate court assumes the duty ... to conduct an independent review for arguable issues apparent on the face of the record.”). Finding none, we affirm the order revoking Mr. Baker’s probation and the resulting sentence. Additionally, this court will not entertain further motions for rehearing in this appeal because of Mr. Baker’s failure to file a brief as permitted in our March 24 order.

Affirmed.

LaROSE, C.J., and WALLACE and' LUCAS, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . We originally issued an unpublished order on February 17, 2017.


source: Caselaw Access Project

author: LOGUE, J.

license: Public Domain

text:
    Marhlau BELIZAIRE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-546
    District Court of Appeal of Florida, Third District.
    Opinion filed July 19, 2017.
    Marhlau Belizaire, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LOGUE, SCALES, and LINDSEY, JJ. .
   LOGUE, J.

Appellant seeks review of the summary denial of his second petition for habeas corpus filed November 9, 2016, and his second motion to correct illegal sentence filed December 2, 2016. We affirm the denial of the second motion to correct illegal sentence for the reasons stated by the trial court. However, we reverse the denial of the petition for habeas corpus.

The trial court properly treated the petition as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The court then held the motion was untimely because it was filed outside the two-year limit for filing such motions established by Rule 3.850(b): In doing so, the trial court miscalculated the dates. While this court affirmed Appellant’s judgment and sentence on October 8, 2014, as indicated by the trial court, that ruling did not become final until the mandate was issued on November 3, 2014. Beaty v. State, 701 So.2d 856, 857 (Fla. 1997) (“[T]he two-year period for filing a motion for postconviction relief began to run upon the issuance of that court’s mandate.”). The Appellant’s motion, although filed in court on November 9, 2016, was delivered to the mailroom of the Correctional Institute holding Appellant on November 2, 2016 and therefore, under the rebuttable presumption of the prisoner’s mailbox rule, timely. ■

The order under review mentions other grounds as bases for denial. We do not address the other grounds because the required .portions of the record were not attached. See Fla. R. Grim. P. 3.850(f)(5). See also Juarez v. State, 215 So.3d 89, 90 (Fla. 3d DCA 2016); Nottage v. State, 61 So.3d 1231, 1232-33 (Fla. 3d DCA 2011).

On remand, the trial court may either summarily deny the motion and attach to its order those portions of the record which conclusively show that appellant is entitled to no relief, or hold an evidentiary hearing and then rule on the allegations. Id.

Reversed and remanded.


author: ROTHENBERG, C.J.

text:
    Marco DESTEFANIS, Appellant, v. HAN MING TAN, Appellee.
    No. 3D17-1113
    District Court of Appeal of Florida, Third District.
    Opinion filed August 02, 2017

      Foster-Morales Sockel-Stone, LLC, and Dori Foster-Morales; Ross & Girten, and Lauri Waldman Ross, for appellant.
    Law Offices of Aliette H. Carolan, PA, and Aliette H. Carolan; Law Offices of Greene Smith Jean, P.A., and Laura Davis Smith, Sonja A. Jean and Alicia M. De La 0, for appéllee.
    Before ROTHENBERG, C.J., and FERNANDEZ and LOGUE, JJ.
   ROTHENBERG, C.J.

Marco DeStefanis appeals the trial court’s order denying his motion to dismiss Han Ming Tan’s amended petition for dissolution of marriage on the basis of forum non conveniens. Because it is undisputed that neither DeStefanis nor Tan are United States citizens; neither currently reside in Florida nor resided in Florida when the petition and the amended petition were filed; the child in question is currently and was residing in New York with DeStefanis when the petition and amended petition were filed; the parties and the child had not resided in Florida for more than a year at the time of the hearing; and Tan was unable to identify a single witness or evidence located in Florida, we conclude that it was an abuse of discretion to deny De-Stefanis’ motion to dismiss the amended petition for dissolution of marriage based on forum non conveniens.

The following facts were either undisputed or stipulated to by the parties. De-Stefanis and Tan entered into a same-sex civil partnership in the United Kingdom in 2008, which was converted into a same-sex marriage in the United Kingdom on February 10, 2015. DeStefanis was born in Italy, has dual citizenship in Italy and the United Kingdom, and resides in New York. Tan was born in Malaysia, has dual citizenship in Malaysia and the United Kingdom, and resides in London. De-Stefanis is in the United States on a five-year E-2 visa connected to his employment, and Tan’s periodic stays in the United States were permitted under the same E-2 visa as a spouse. The parties own a home in London, which they list as their residence or domicile.

A child was born in Missouri on September 24, 2014, through a surrogate during the time in which the parties’ relationship was classified as a civil partnership. On October 3, 2014, a Missouri court declared DeStefanis the genetic and legal father of the child with exclusive custody of the child.

Prior to the child’s birth, DeStefanis resided in New York and Tan resided in Malaysia. However, in August 2014, just prior , to the child’s birth, Tan moved to New York. The parties lived in New York with the child briefly and then they all moved to Miami-Dade County, Florida, where they lived in a friend’s apartment for approximately ten months, from December 2, 2014 to mid-October 2015. On or about October 15, 2015, Tan moved back to London. Although Tan has traveled back and forth between London and Malaysia, he has not returned to Florida. DeStefanis and the child moved back to New York on March 5, 2016, where they have continuously lived since leaving Florida.

Both parties have filed petitions for dissolution of marriage. After moving to New York, DeStefanis filed his petition in London, and Tan was served in London on or about April 18, 2016. Thereafter, Tan filed his petition in Miami-Dade County and served DeStefanis in New York City on or about May 13,2016. The parties agree that because the child resided in Miami-Dade County from approximately December 2, 2014 to March 5, 2016, the Miami-Dade County circuit court has jurisdiction over the issues relating to the child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”).

The trial court has already determined that it lacks subject-matter jurisdiction over the dissolution of the marriage, and the dissolution of the marriage is currently being litigated in London. Thus, the only issues currently before'the trial court are those related to the child, who was born in Missouri and currently lives with her genetic and legal father in New York, and where she has lived since March 2016.

ANALYSIS

An order denying a motion to dismiss based on forum non conveniens is reviewed for an abuse of discretion. Steckler v. Steckler, 921 So.2d 740, 744 (Fla. 5th DCA 2006). In Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86, 87-88 (Fla. 1996), the Florida Supreme Court noted the following:

Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere. Forum non conveniens also serves as a brake on the tendency of some plaintiffs to shop for the “best” jurisdiction in which to bring suit — a concern of special importance in the international context.

(footnote omitted). This is such a case. First, the petition and amended petition that were filed in the circuit court were for dissolution of marriage. The. circuit court, however, has no jurisdiction over the dissolution of the marriage, which is being litigated in London. Second, although the trial court has jurisdiction over the issues involving the child, neither the parties nor the child live in Florida. Additionally, the parties own no property in Florida, have no family living in Florida, have no ties to Florida, and have not identified any Florida witness. In short, Florida has little or no connection to the parties or the subject litigation. And, just as the Florida Supreme Court warned in Kinney, Tan has admitted that he filed his dissolution of marriage petition in Florida and wishes to keep the portion of the case involving the child in Florida, rather than litigating the case in New York, because he believes Florida substantive law will provide him with a more favorable result than if those issues are resolved in New York, where the child and legal father, who was judicially granted sole custody of the child, reside.

Our analysis is directed by sections 61.515 and 61.520, Florida Statutes (2015). Under section 61.515(1), the trial court in the instant case has exclusive and continuing jurisdiction to make child custody determinations until:

(a) A court of this state determines that the child, the child’s parents, and any person acting as a parent do not have a 'significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(b)A court of this state or a court of another state determines that the child, the child’s parent, and any person acting as a parent do not presently reside in this state.

It is undisputed that the child, the child’s parent(s), and any person acting as a parent do not presently reside in Florida and have not resided in Florida for over a year. Tan- has not .resided in Florida since approximately October 15, 2015, and he currently resides in London. DeStefanis and the-child moved back to New York on or about March 5, 2016, where they have continuously lived since leaving Florida. Thus, on March 30, 2017, when the trial court conducted the evidentiary hearing on DeStefanis’ motion to dismiss based on forum non conveniens, it had been over a year since the parties and the child had resided in Florida.

Although it appears obvious that, based oh these undisputed facts and pursuant to section 61.515(b),'the trial court does not have exclusive jurisdiction to make child custody determinations, the trial court has not yet made that determination. We, therefore, treat the trial court’s jurisdiction as exclusive, and analyze section 61.520 under the lens of exclusivity.

Suit was brought under the UCCJEA, which contains a specific forum non conve-niens provision, section 61.520. Because the UCCJEA contains a specific forum non conveniens' provision,'' that provision' controls, rather than the common law forum non conveniens on which Kinney is based. See Corio v. Lopez, 190 So.3d 1152, 1153 (Fla. 5th DCA 2016) (holding that the specific venue statute for paternity, actions displaces the more general statute). However, even if we were to review DeStefanis’ motion under the Kinney factors, we would conclude that the trial court abused its discretion by denying DeStefanis’ motion to dismiss on the basis of forum non conve-niens under.that analysis as well.

We now address the specific forum non conveniens provision under the UCCJEA, section 61.520. Section 61.520 permits a court in this state that has jurisdiction to make a child custody determination to “decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” § 61.520(1). Section 61.520(2) requires the court to consider all relevant factors, but lists several factors that the court must consider. Section 61.520(2) provides as follows:

(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information -and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The’distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and-the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

The trial court correctly dispensed with subsections (a), (d), (e), (g) and (h), as there were no allegations of domestic violence, agreement by the parties, concern over the financial ability of either party to litigate the case in either Florida or New York, or the ability of the New York court to resolve the child custody issues; We therefore address the findings as to subsections (b), (c), and (f).

The trial court found under subsection (b) that when the action commenced, De-Stefanis and the child had only resided outside the state of Florida for two weeks. While that finding is correct, we find that the trial court erred by failing to consider that the Petitioner, Tan, left Florida for London on October 15, 2015, months before he filed his petition, and has never returned, and more importantly, that at the time of the hearing, DeStefanis and the child had been living in New York for over a year. The record reflects that the child was born in Missouri, lived in New York before living in Florida for ten months and then returned to New York. We, therefore, conclude that the trial court failed to comply,with section (¡1.520(2)(b) by failing to consider fully “[t]he length of time the child has resided outside this state.”

We also find no support in the record for the trial court’s determination under section 61.520(2)(f) that “[t]he nature and .location of the evidence required to resolve the litigation includes witnesses and documents in both jurisdictions.” Tan has not been able to identify any witness or evidence presently located in Florida. The child’s genetic and legal father, caretakers, nanny, pediatrician, and school are all in New York.

Lastly, when the trial court considered the distance between the trial court in Florida and the trial court in New York, it concluded that the distance that the parties would have to travel would “not impose an impediment.” See § 61.520(2)(e). However, the issue is not whether having to fly to Miami from New York for hearings and other proceedings would impose an impediment for resolution of - child custody. The issue is whether New York, where DeStefanis and the child permanently reside, would be a more convenient forum than Florida, Tan resides in London and will have to commute -regardless of whether the lawsuit is litigated in Miami or New York. On the other hand, it would certainly be more convenient . for De-Stefanis and the .New Yoyk witnesses to appear in New York where they reside rather than travel to Miami for hearings.

Because neither the parties nor the child have resided in Florida for over a year prior to the hearing conducted by the trial court on DeStefanis’ motion to dismiss; the legal parent and child currently reside and have resided in New York since they left Miami on March 5, 2016; Tan has not resided in Florida since Octobér 15, 2015; neither party has identified a single witness or any evidence located in Florida; and neither party has a significant connection to Florida (they own no property, have no business, and have no relatives living in Florida), we conclude that the trial court abused its discretion by continuing to exercise its jurisdiction over the child custody issues and denying De-Stefanis’ motion to dismiss under section 61.520. According, we reverse the trial court’s order denying DeStefanis’ motion to dismiss pursuant to section 61.520.

Reversed and remanded.

      . The motion to dismiss raised several grounds for dismissal of the petition, but the sole ground upon which DeStefanis has appealed is the denial of his motion on the basis-of forum non coiiveniens.


text:
    Dev D. DABAS and Sumedha Dabas, Appellants, v. BOSTON INVESTORS GROUP, INC., et al., Appellees.
    No. 3D16-2672
    District Court of Appeal of Florida, Third District.
    Opinion filed August 02, 2017

      Feldman Law, and Andrew M. Feldman, for appellants.
    Jaramillo Law PA, and Sebastian Jar-amillo, for appellee Boston Investors Group, Inc.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   ROTHENBERG, C.J.

The plaintiffs below, Dev D. Dabas and Sumedha Dabas (collectively, “the Lenders”), appeal from a non-final order granting defendant Boston Investors Group, Inc.’s (“Borrower”) motion to set aside a deficiency judgment as void, pursuant to Florida Rule of Civil Procedure 1.540(b)(4). Because we conclude that, as a matter of law, the deficiency judgment is not void, we reverse the trial court’s order granting the Borrower’s motion for relief from judgment pursuant to rule 1.540(b)(4).

FACTS

In April 2011, the Borrower executed a mortgage and promissory note in the amount of $450,000 in favor of the Lenders. The Lenders initiated a foreclosure action against the Borrower, and the Borrower filed an answer and affirmative defenses. After the Borrower withdrew its amended answer and affirmative defenses, an unopposed final judgment of foreclosure in favor of the Lenders in the amount $579,409.92 was entered in May 2013. On June 11, 2013, the foreclosed property, which is vacant land located in Pinecrest, Florida, was sold at the foreclosure sale for $65,100 to the Lenders as the highest bidders. •

In July 2013, the Lenders filed a motion for entry of a deficiency judgment and a memorandum of law (“motion for a deficiency judgment”), asserting the legal pre--sumption that the foreclosure sale price represented the fair market value of the foreclosed property. The Lenders noticed the hearing on its motion for September 3, 2013,' but the notice of hearing did not specifically set the hearing for an eviden-tiary hearing. The Lenders emailed, both the motion for a deficiency judgment and the notice of hearing to the Borrower’s counsel of record. The Borrower’s counsel of record did not file a response to the Lenders’ motion for a deficiency judgmeht, but he did appear at the September 3rd hearing.

Following the hearing, the trial court entered an order granting- the Lenders’ motion for a deficiency judgment in the amount of $508,602.62 and ordered- the Borrower to complete a Fact Information Sheet (Form 1.997) within 45 days. The order reflects' that a copy of the ordergranting the deficiency judgment was provided to counsel of record and includes a mailing address for the Borrower. There is no transcript of this hearing.

Although the trial court’s order granted a deficiency judgment of $508,602.62, the Borrower did not file a motion for rehearing or appeal the trial court’s order. Instead, on October 7, 2013, thirty-four days after the deficiency judgment was entered, the Borrower filed a motion for reconsideration- of the deficiency judgment (“motion for-reconsideration”). The motion cites to rule 1.540(b), however, it does not specify under what grourid(s) the- Borrower was seeking relief and does not track any of the language, set forth in rule -1.540(b). Specifically, the motion for reconsideration did not allege that the judgment was void pursuant to rule 1.540(b)(4). Rather, the Borrower merely moved to vacate the deficiency judgment and requested an eviden-tiary hearing to determine the correct amount of the deficiency, arguing that according to the Miami-Dade Property . Appraiser’s website, the market value of the foreclosed property was $278,784.

On February 6, 2014, the Borrower filed an amended motion for reconsideration stating that it had obtained an appraisal of the foreclosed property, indicating that the foreclosed property was valued at $650,000 as of Juñe 11, 2013, the date of the foredo-suré sale. Once again, the amended motion for reconsideration cited to rule 1.540(b), but failed to cite to any particular ground set forth in rule 1.540(b) or contend that the judgment was void under rule 1.540(b)(4) or voidable under any other provision set forth in rule 1.540(b). The motion for reconsideration and the amended motion for reconsideration were never set for a hearing or ruled on by the trial court.

The Borrower took no further action for approximately two years. However, on March 18, 2016, after learning that an execution had been issued on the deficiency judgment against other real property owned by the Borrower (“the Flagler property”), the Borrower filed a motion to set aside the deficiency judgment and execution, which motion was later amended in April 2016. After the Flagler property was sold at a Sheriffs sale to the Lender, the Borrower withdrew its motion and amended motion to set aside the deficiency judgment and execution.

On September 1, 2016, the Borrower attempted to amend its October 7, 2013 motion for reconsideration and requested that the motion for reconsideration be re-designated as a motion to set aside the deficiency judgment (“motion to amend and to redesignate”), which is thé subject of this appeal. In the motion to amend and to redesignate, the Borrower argued that, although the October 3, 2013 motion was labeled as a motion for reconsideration, the content of the motion indicated that the Borrower was actually seeking to set aside the deficiency judgment under rule 1.540(b).

Unlike the motion for reconsideration, the motion to amend and to redesignate cites to specific grounds set forth in rule 1.540(b), including rule 1.540(b)(4), which permits a court to relieve a party from a void judgment at any time. Specifically, the Borrower argued that the deficiency judgment was void because the trial court did not. conduct an evidentiary hearing, and thus, the Borrower’s due process rights were violated.

Following a hearing, the. trial court entered an order granting the Borrower’s motion to set aside the deficiency judgment pursuant to rule 1.540(b)(4), finding that the-deficiency judgment is void. The Lenders’ non-final appeal followed.

ANALYSIS

The Lenders contend that, as a matter of law, the deficiency judgment is not void, but merely voidable, and therefore, the trial court improperly granted the Borrower’s motion to set aside the' deficiency judgment pursuant to rule 1.540(b)(4). We agree.

Generally, a trial court’s ruling on a rule 1.540(b) motion for relief from judgment is reviewed on appeal for an abuse of discretion. See Epstein v. Bank of Am., 162 So.3d 159, 161 (Fla. 4th DCA 2015). However, “[a] decision whether, or not to vacate a void judgment is not within the ambit of a.trial court’s discretion; if a judgment previously entered is void, the trial court must vacate the judgment.” Wiggins v. Tigrent, Inc., 147 So.3d 76, 81 (Fla. 2d DCA 2014). Because the issue of whether a judgment is void presents a question of law, we review; the trial court’s ruling de novo. See Vercosa v. Fields, 174 So.3d 550, 552 (Fla. 4th DCA 2015) (“Whether a judgment is void is a question of law reviewed de novo.”),

“A void judgment is so defective that it is deemed never to have had legal force and effect.” Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007). In contrast, a voidable judgment is a judgment that has been entered based upon some error in procedure that allows a party to have the judgment vacated, but the judgment has legal force and effect unless and until it is vacated,”. Id. Generally, a judgment is void- if: (1) the trial court lacks subject matter jurisdiction; ,(2) the trial court lacks personal jurisdiction over the party;, or (3) .if, in the proceedings leading up to the judgment, there is a violation of the due process guarantee of notice and an opportunity to be heard. Tannenbaum v. Shea, 133 So.3d 1056, 1061 (Fla. 4th DCA 2014). “Where, however, the court is legally organized and has jurisdiction of the subject matter and the adverse parties are given an opportunity to be heard, then errors, irregularities, or wrongdoing in proceedings, short of illegal deprivation of [an] opportunity to be heard, will not render the judgment void.” Tannenbaum, 133 So.3d at 1061 (internal quotations omitted). “This is particularly true when there is evidence that - the party repeived actual notice of the proceedings generally and timely notice of the entry of any judgment against them.” Sterling, 968 So.2d at 666 (citations omitted).

In the instant case, it is undisputed that the trial court had subject matter jurisdiction and personal jurisdiction over the Borrower. Therefore, we must determine whether the Borrower’s due process rights were violated where the noticed hearing was not set fts an eviden-tiary hearing, but the Borrower’s counsel of record was timely sent the notice of hearing and appeared at the hearing. Under these circumstances, we conclude that the Borrower’s due process rights were not violated because the Borrower received notice of the hearing and was given an opportunity to be heard. Thus, the deficiency judgment was not void. As the judgment was not void, the trial court erred by setting aside the deficiency judgment pursuant to rule 1.540(b)(4).

Because the record on appeal does not contain a transcript of the hearing on the motion for entry of a deficiency judgment, we do not know what occurred at the hearing. We do know, however, that if the Borrower was unprepared for the hearing or needed more time to be able to present evidence or attack the amount of the deficiency judgment, the Borrower could have sought a continuance, and if the trial court denied the motion for continuance, the Borrower could have filed a timely motion for rehearing or an appeal raising these issues. See Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893, 895 (Fla. 4th DCA 2012) (“A rule 1.540(b) motion is not a substitute for a motion for rehearing or an appeal.”). Instead, the Borrower waited well past the time to raise the arguments he now raises.

Because the judgment is not void, the trial court erred by granting the Borrower’s motion for relief from judgment pursuant to rule 1.540(b)(4). Accordingly, we reverse the order granting the Borrower’s motion to set aside the deficiency judgment as void.

The remaining arguments raised by the Borrower do not merit discussion.

Reversed.

      . The record reflects that the Borrower has been represented by numerous attorneys during the proceedings in the lower tribunal and, at times, the Borrower was unrepresented. ' The- Borrower's appellate counsel, Sebastian Jaramillo, did not represent the Borrower when the Lenders filed their motion for a deficiency judgment or at the hearing on the motion for a deficiency judgment. Jaramillo filed his noticé of appearance in the lower tribunal on August 8, 2016, and therefore, he is not responsible for any actions or inaction taken prior to that date.

      , A separate order was subsequently entered for the sole purpose of tracking the language set forth in Florida Rule of Civil Procedure 1.560(c) relating to the completion of Form 1,997, and thus no substantive changes were made to the deficiency judgment.

      .Rather than serving a motion for reconsideration, the Borrower should- have served a motion for rehearing under Florida Rule of Civil Procedure 1.530, which provides that "[o]n a motion for rehearing of matters heard without a jury, ... the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.” Assuming that the motion for reconsideration should have been treated as a motion for rehearing, the motion was untimely filed because it was not served within ten days of the date that the deficiency judgment was filed. Effective January 1, 2014, rule 1.530 was amended to extend the time for serving a motion 'for rehearing from ten days to fifteen days.

      . We agree with the Borrower’s argument that the hearing on the motion for a deficien- ■ cy judgment should have been set as an evi-dentiary hearing because the deficiency, if any, is unliquidated. See Merrill v. Nuzum, 471 So.2d 128, 129 (Fla. 3d DCA 1985); see also Liberty Bus. Credit Corp. v. Schaffer/Dunadry, 589 So.2d 451, 452 (Fla. 2d DCA 1991) (noting that an evidentiary hearing is necessary to determine the amount of the deficiency, if any). At an evidentiary hearing on a motion for the entry of a deficiency judgment, the initial burden is on the party seeking the deficiency judgment. See Liberty Bus Credit, 589 So.2d at 452, "The correct formula to calculate a deficiency judgment is the total debt, as secured by the final judgment of foreclosure, minus the fair market value of the property, as determined by the court.” Khan v. Simkins Indus., Inc., 687 So.2d 16, 18 (Fla. 3d DCA 1996) (quoting Morgan v. Kelly, 642 So.2d 1117 (Fla. 3d DCA 1994)). Although there is a legal presumption that "the foreclosure sale price equals the fair market value of the property," Thunderbird, Ltd. v. Great Am. Ins. Co., 566 So.2d 1296, 1299 (Fla. 1st DCA 1990), the foreclosure sale price is not conclusive. Barnard v. First Nat’l Bank of Okaloosa Cnty., 482 So.2d 534, 535 (Fla. 1st DCA 1986). "Therefore, once the party seeking a deficiency judgment introduces evidence of the foreclosure sale price, the burden shifts to the judgment debtor to present evidence concerning the property’s fair market value.” Liberty Bus. Credit, 589 So.2d at 452.


author: SUAREZ, J.

text:
    Alexander GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-655
    District Court of Appeal of Florida, Third District.
    Opinion filed August 2, 2017
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SUAREZ, SALTER, and LOGUE, JJ.
   SUAREZ, J.

Defendant Alexander Green appeals the denial of his 3.850 motion after evidentiary hearing. We affirm.

Green was convicted of manslaughter with a firearm after jury trial. Eventually defendant was sentenced to 25 years. This Court affirmed that conviction and sentence. Green v. State, 116 So.3d 389 (Fla. 3d DCA 2013). Subsequently, Green filed the present 3.850 motion claiming ineffective assistance of trial counsel on several grounds. In general Green claims that trial counsel was ineffective for failing to properly investigate or present at trial certain alibi witnesses and theories.

The trial court appointed counsel to represent Green and set an evidentiary hearing on the motion. During the hearing defendant expressed dissatisfaction with appointed counsel and stated that he wanted to represent himself. The trial court granted his request, but at a later point Green permitted the appointed counsel to cross-examine a witness.

On appeal Green argues that the trial court did not engage in sufficient inquiry before permitting self-representation and that the trial court misled Green about the sufficiency of his reasons for wanting to discharge appointed counsel. After a thorough review of the transcript .of the evi-dentiary hearing, we find that the inquiry conducted by the trial court was more than sufficient to protect defendant’s rights.and that the trial court in no way misled Green about his reasoning process or his interests. We therefore affirm on that claim.

Green also claims that the trial court incorrectly rejected his claims of ineffective assistance of trial counsel. We affirm on that claim as well. The transcript of the evidentiary hearing makes it abundantly clear that the persons upon whom Green relies for his claims of alibi witnesses could not have provided any viable alibi for Green. We find Green’s claims of ineffective assistance of trial counsel to be contradicted by the record ,of the eviden-tiary hearing and therefore reject those claims.

Affirmed.


author: SILBERMAN, Judge.

text:
    STONEPEAK PARTNERS, LP, Appellant, v. TALL TOWER CAPITAL, LLC, Appellee.
    Case No. 2D16-4204
    District Court of Appeal of Florida, Second District.
    Opinion filed August 11, 2017

      Christine Marlewski (withdrew after briefing) and Brian K. Oblow-(substituted as counsel of record) of Gray Robinson, PA, Tampa, and Joseph M. McLaughlin of Simpson, Thacher & Bartlett, LLP, New York, for Appellant.
    Robert L. Rocke and Raul Valles of Rocke, McLean & Sbar, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Stonepeak Partners, LP, appeals an order denying its motion to dismiss for lack of personal jurisdiction in this action brought by Tall Tower Capital, LLC, for breach of contract and breach of fiduciary duty. Because the trial court erred in determining that Tall Tower established jurisdiction based upon the grounds that Stonepeak committed a tortious act in Florida and engaged in a business venture in Florida, we reverse and remand for the trial court to dismiss the action.

Stonepeak is an investment firm incorporated under the laws of Delaware with offices and its principal place of business in New York. Stonepeak has no office, employees, of clients in Florida. Tall Tower is a Florida firm headquartered in Lakeland, Florida, that manages broadcast towers and communications infrastructure throughout the United States, Tall Tower solicited Stonepeak in New York to invest in broadcast towers that were being offered for sale by CC Media Holdings, Inc. (Clear Channel), a Texas company. Clear Channel planned to sell 472 broadcast towers,, and 436 of those towers were located outside Florida.'

In January 2014, Stonepeak and Tall Tower entered into a confidentiality and noncircumvention agreement (the Confidentiality Agreement) concerning the Clear Channel transaction. The Confidentiality Agreement did not require Stone-peak “to enter into any business relationship or transaction” or “to deal with” Tall Tower. Tall Tower employees regularly made visits to New York to discuss the Clear Channel transaction, and the parties communicated frequently by email. Stone-peak employees or its agents made four visits to Florida regarding the Clear Channel transaction. Tall Tower and Stonepeak negotiated with Clear Channel for almost a year, but their bid was unsuccessful.

During the course of the negotiations, Stonepeak made an equity investment in Vertical Bridge Holding, LLC, a Florida company, and acquired a seventeen percent interest in Vertical Bridge. As a managing director of Stonepeak, Trent Vichie serves on boards of directors of “portfolio companies”. in which .Stonepeak has an ownership interest. Vichie served on Vertical Bridge’s board of directors as a representative of Stonepeak. Vertical Bridge had the- successful bid in the Clear Channel sale.

Tall Tower subsequently filed its complaint, alleging that Stonepeak breached the Confidentiality Agreement and breached its fiduciary ■ duty. Tall Tower alleged that by virtue of the Confidentiality Agreement the parties were “engaged as joint venturers.” It further alleged that the fiduciary duty “arose as a result of the [Confidentiality] Agreement and the parties’ joint negotiations with Clear Channel.”

Stonepeak filed a motion to dismiss for lack' of personal jurisdiction and submitted affidavits from Stonepeak’s Trent Vichie and Luke Taylor in support. Tall Tower opposed the motion and filed a supporting affidavit from Robert Harper, a managing member of Tall Tower. The trial court determined that the affidavits were in factual conflict and that a limited evidentiary hearing was required. See Canale v. Rubin, 20 So.3d 468, 469 (Fla. 2d DCA 2009), After an evidentiary hearing, the trial court entered an order denying the motion to dismiss. Stonepeak contends that the trial court erred in determining that Stonepeak is subject to personal jurisdiction- in Florida based on section 48.193(l)(a)(2), Florida Statutes (2013), for committing a tortious act in Florida and on section 48.193(l)(a)(l) for engaging in a business venture in Florida.

Section 48.193( l)(a) (2) — Committing a Tortious Act in Florida

Personal jurisdiction under Florida’s long-arm statute may be general or specific, depending on the nature of the defendant’s contacts with Florida. Wiggins v. Tigrent, Inc., 147 So.3d 76, 85 (Fla. 2d DCA 2014). Section 48.193(l)(a)(2) of Florida’s long-arm statute applies to a lawsuit “arising from” a person “Committing ■ a tortious act within this state.” Such a- lawsuit is based on specific jurisdiction. See Wiggins, 147 So.3d at 86. Tall Tower alleged that Stonepeak committed a tortious act in Florida by breaching its fiduciary duty to Tall Tower.

At an evidentiary hearing on personal jurisdiction, the evidence must estabr lish jurisdiction by a preponderance of- the evidence. See Passy v. Lewis, 553 So.2d 223, 224 (Fla. 1st DCA 1989). We typically conduct a de novo review of an order on a motion to dismiss for lack of personal jurisdiction. See Rautenberg v. Falz, 193 So.3d 924, 928 (Fla. 2d DCA 2016); Dev. Corp. of Palm Beach v. WBC Constr., L.L.C., 925 So.2d 1156, 1160 (Fla. 4th DCA 2006). But when the .trial court relies on witness testimony, we defer to the trial court’s determination of witness credibility. Dev. Corp., 925 So.2d at 1160. We then apply the facts to the law based on de novo review. Id.

In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989), the Florida Supreme Court set forth the two-step analysis necessary to determine whether the trial court has personal jurisdiction over a nonresident defendant. See Rautenberg, 193 So.3d at 928. The trial court must first determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute. Id. If it does, then the trial court must determine whether sufficient minimum contacts are shown to satisfy due process requirements. Id, Tall Tower alleged acts to establish specific jurisdiction under the long-arm statute of committing a tortious act in Florida and engaging in a business venture in Florida. See § 48.193(l)(a)(l), (l)(a)(2). Specific jurisdiction also “requires a causal connection betweén the defendant’s activities in Florida and the plaintiffs cause of action, a requirement known as ‘connexity,’ ” Canale, 20 So.3d at 466 (quoting Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 2002)). The long-arm statute is'to be strictly construed in favor of the nonresident defendant. Navas v. Brand, 130 So.3d 766, 770 (Fla. 3d DCA 2014).

Because the tort alleged is breach of a fiduciary duly, Stonepeak must be shown to owe a fiduciary duty to Tall Tower. A fiduciary relationship does, not exist in an arms’ length transaction. MacGray Servs., Inc. v. DeGeorge, 913 So.2d 630, 633 (Fla. 4th DCA 2005); Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So.2d 536, 541 (Fla. 5th DCA 2003). But joint venturers owe each other a duty of loyalty, breach of which gives rise to a claim for breach of fiduciary duty. See New Vista Dev. Corp. v. Doral Terrace Assocs., 878 So.2d 462, 464 (Fla. 3d DCA 2004).

The joint venture relationship must arise from a contract. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1089 (Fla. 2008). To-establish a joint venture, the contract must contain the following five elements: “(1) a community of interest in the performance of the common purpose, (2) joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the profits and (5) a duty to share in any losses which may be sustained.” Id. (quoting Kislak v. Kreedian, 95 So.2d 510, 515 (Fla. 1957)). If one element is absent it precludes the finding of a joint venture. Id. A party asserting that an unwritten, implied contract is the basis of a joint venture — as Tall Tower appears to argue on appeal — faces a “heavy and difficult” burden as it still must allege and prove that the implied contract contains the same five elements of a joint venture. Kislak, 95 So.2d at 515. As the Florida Supreme Court noted, “[b]usiness relationships are not customarily entered into in a casual mannerU” particularly business relationships of significant magnitude. Id.

Tall Tower contends that it is not necessary to prove the elements of a joint venture because “the appropriate inquiry is whether the tort as alleged in the complaint occurred in Florida, and not whether the alleged tort ■ actually occurred.” Navas, 130 So.3d at 770. In Navas, the defendants did not provide affidavits -to contest jurisdiction, and the trial court did not conduct an evidentiary hearing. See id. We recognize that “a full-blown trial” to prove that Stonepeak committed the tort is not required. Acquadro v. Bergeron, 851 So.2d 665, 669 (Fla. 2003). But “[i]n analyzing whether tortious conduct has occurred within Florida, courts have looked to whether the nonresident defendant ‘committed a substantial aspect of the alleged tort in Florida.’ ” NHB Advisors, Inc. v. Czyzyk, 95 So.3d 444, 448 (Fla. 4th DCA 2012) (quoting Watts v. Haun, 393 So.2d 54, 56 (Fla. 2d DCA 1981)).

Here, the trial court did not appear to find that a joint venture existed based on any written contract. The trial court noted casual references in emails to a “JV,” statements that Stonepeak was acting'in partnership with Tall Tower, and that according to Tall Tower the parties discussed creating a partnership.-The trial court “conclude[d] that Stonepeak’s investment and participation in Vertical Bridge’s successful attempt to acquire the Clear Channel assets (some of which "are located in Florida) as alleged in the Complaint and as testified to at the evidentiary hearing may constitute the commission of a tor-tious act in Florida.”

It is telling that while the complaint relied upon the Confidentiality Agreement and the parties’ joint negotiation's with Clear Channel to establish the fiduciary duty, in its appellate brief Tall Tower recognizes that the Confidentiality Agreement is not a source of any fiduciary duty. Instead, it contends that “the duty arises from the parties’ relationship as joint ven-turers.” After thoroughly reviewing the evidence presented at the hearing and on which the trial court relied, wé conclude that the evidence does not establish that Stonepeak owed Tall Tower a fiduciary duty pursuant to a-joint venture.

The evidence does not show that any written agreement creating a joint venture had been executed by the parties. Robert Harper of Tall Tower testified that his understanding was that the parties were entering into a partnership. Brian Philpot of Tall Tower testified that he understood the proposed LLC as setting up a joint venture partnership and that Tall Tower would be contributing money and investing in the new entity. On cross-examination, Philpot recognized that the LLC agreement that Stonepeak drafted provided in paragraph 2.7, entitled “No State Law Partnership,” that except for tax purposes, the agreement would not be construed to create a joint venture or partnership. Phil-pot also admitted that a draft Master Services Agreement provided that it shall not b§ construed as creating any joint venture or partnership.

The evidence shows that Stonepeak drafted an, LLC agreement and a Master Services Agreement, but the parties never executed either of.them. Although the witnesses from Tall Tower believed they were acting as partners or joint venturers with Stonepeak and woulcj enter into such a written agreement in the future, the facts the. trial court relied upon are insufficient to show that any implied contract existed that would meet the five Kislak elements. See Kislak, 95 So.2d at 515. Indeed, the evidence did not address several of the Kislak factors. Without evidence establishing that a joint venture wa^ actually entered into, Stonepeak had no fiduciary duty to Tall Tower and thus could not breach a fiduciary duty in Florida.

Even if- the evidence presented at the hearing could be considered sufficient to show that Stonepeak had a fiduciary duty to Tall Tower, the evidence does not show that Stonepeak breachefi any fiduciary duty in Florida. The trial court found that Stonepeak-was subject to “personal jurisdiction based on Tall Towers’ claim that Stonepeak committed a tortious act in Florida through its investment in, and actions on behalf of, Vertical Bridge, as well as its alleged disclosure of confidential information to Vertical Bridge.”

With respect to the disclosure of confidential information to Vertical Bridge in violation of the Confidentiality Agreement, the testimony from Tall Tower witnesses provided some circumstantial evidence that Vichie disclosed information about the Clear Channel deal to Marc Ganzi of Vertical Bridge. But there was no evidence regarding where this disclosure occurred. This court has recognized “the general rule that the existence of an injury within Florida, standing alone, is insufficient to support jurisdiction over an out-of-state tortfeasor.” Kountze v. Kountze, 996 So.2d 246, 252 (Fla. 2d DCA 2008) (en bane); see also Homeway Furniture Co. of Mount Airy, Inc. v. Horne, 822 So.2d 533, 538-39 (Fla. 2d DCA 2002). In the present case, the trial court relied upon Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 2002), for the proposition that a defendant need not be present in Florida for the purpose of committing a tortious act in Florida under the long-arm statute. A nonresident defendant can commit a tortious act in Florida under the long-arm statute by making written, telephonic, or electronic communications into Florida, if the cause of action alleged arises from those communications. Id.

This court has explained that the Wendt rule is applied when the tort “involves some sort of communication directed into Florida for purpose of fraud, slander, or other intentional tort.” Wiggins v. Tigrent, Inc., 147 So.3d 76, 86 (Fla. 2d DCA 2014); see also PK Comput., Inc. v. Indep. Travel Agencies of Am., Inc., 656 So.2d 254, 255 (Fla. 4th DCA 1995) (stating that the complaint contained insufficient allegations of tortious interference committed in Florida when the complaint alleged that the defendant made oral statements or misstatements but did not allege that the statements were made in Florida or were directed at listeners in Florida). In Wiggins, the plaintiff asserted a cause of action for conversion, claiming-injury in Florida when Wiggins withheld and utilized money that should have been transferred into the plaintiffs Florida bank accounts. 147 So.3d at 78-79. But the alleged tort' of conversion did not occur in Florida and there was no connexity with Florida when the defendant gained dominion and control of the funds in Washington State. Id. at 87.

Because there was no allegation or evidence at the hearing that Vichie’s alleged disclosure of information occurred in Florida or was directed at a person in Florida, the alleged disclosure of information to Vertical Bridge does not support the finding that Stonepeak committed a tortious act in Florida. See Wendt, 822 So.2d at 1260; Wiggins, 147 So.3d at 86. Similarly, the circumstantial evidence adduced at the hearing does not show that Stonepeak did anything in Florida regarding its alleged “participation in' Vertical Bridge’s successful attempt to acquire the Clear Channel assets.” With respect to Stonepeak becoming a minority investor in Vertical Bridge, nothing indicates that it was a tort for Stonepeak, an investment firm, to purchase a seventeen percent share of Vertical Bridge.

Therefore, the trial court erred in determining that the evidence presented at the hearing establishes that Stonepeak committed a tortious act in Florida under section 48.193(l)(a)(2).

Section 48.193(l)(a)(l) — Engaging in a Business Venture in Florida

Stonepeak contends that the trial court erred in determining that Stonepeak is subject to personal jurisdiction in Florida based on section 48.193(l)(a)(l). Tall Tower alleged in its complaint that Stonepeak was engaged in a business venture in Florida. Section 48.193(l)(a)(l) provides for personal-jurisdiction for a cause of action “arising from” the acts of a nonresident in “Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.” In its findings the trial court stated, “The Court finds that there is competent substantial evidence that Stonepeak engaged in a business venture in Florida. Stonepeak purposefully availed itself of the privilege of conducting activities in Florida, and thus, accordingly invoked the benefits and protections of its laws.”

For purposes of section 48.193(l)(a)(l), to demonstrate that a nonresident defendant is “carrying on business” the defendant’s activities “must be considered collectively and show a general course of business activity in the state for pecuniary benefit.” RMS Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed.Appx. 779, 783 (11th Cir. 2014) (quoting Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1167 (11th Cir. 2005)), Factors to consider in making this determination “include: (1) ‘the presence and operation of an office in Florida’; (2) ‘the possession and maintenance of a license to do business in Florida’; (3) ‘the number of Florida clients served’; and (4) ‘the percentage of overall revenue gleaned from Florida clients.’ ” Id. at 784 (quoting Horizon Aggressive Growth, 421 F.3d at 1167).

Tall Tower points to the. large amount of email exchanges and telephone calls over the negotiation period between Tall Tower and Stonepeak. Harper testified that he exchanged numerous emails with Stonepeak regarding the Clear Channel transaction, and Taylor testified that there had been regular telephone discussions. Electronic communications from out-of-state offices into Florida do not establish conducting business in Florida. See Horizon Aggressive Growth, 421 F.3d at 1167; Bernardele v. Bonorino, 608 F.Supp.2d 1313, 1322 (S.D. Fla. 2009); see also Jasper v. Zara, 595 So.2d 1075, 1075 (Fla. 2d DCA 1992) (involving communications by mail and telephone).

But we note that in Canale, 20 So.3d at 468-69, this court distinguished the Florida Supreme Court’s decision in Wendt that electronic communications into Florida could constitute a tort. In doing so, this court recognized that to meet the connexity requirement, the alleged tort must arise from the communications on which the plaintiff seeks to establish long-arm jurisdiction. Id. at 469. This court then1 stated, “Certainly, telephone calls made to Florida may be relevant to whether an out-of-state resident is doing business in this state. But in order to come to this conclusion, the nature of the calls must be examined.” Id Here, the trial court found only that the communications concerned the Clear Channel transaction, a transaction that was never consummated; There was -no evidence that Stonepeak derived pecuniary gain as a result of the communications, and it did not purchase the Clear Channel assets or even enter into an agreement to purchase them.

The trial court also relied on the fact that Stonepeak made an equity investment in Vertical Bridge for a seventeen percent interest in the Florida company and that Vichie sat on the board, of directors of Vertical Bridge. The fact that a New York investment firm owns a minority equity interest in a Florida company as part of its portfolio does not equate with Stonepeak doing business in Florida. See Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1143 (Fla. 2d DCA 2006) (“Ownership of a resident subsidiary corporation by an out-of-state parent corporation, without more, has been repeatedly deemed insufficient to meet the requirements of section 48.193.”); Greystone Tribeca Acquisition L.L.C. v. Ronstrom, 863 So.2d 473, 476 (Fla. 2d DCA 2004). And the activities of Vertical Bridge and its board of directors cannot be attributed to Stonepeak when Tall Tower has made no effort to pierce the corporate veil or establish jurisdiction under an alter ego theory. See Bellairs v. Mohrmann, 716 So.2d 320, 323 (Fla. 2d DCA 1998); WH Smith, PLC v. Benages & Assocs., 51 So.3d 577, 581 (Fla. 3d DCA 2010). To demonstrate jurisdiction under an alter ego theory, the plaintiff must make sufficient jurisdictional allegations to pierce the corporate veil. WH Smith, 51 So.3d at 581. To pierce the corporate veil the plaintiff must establish “both that the corporation is a ‘mere instrumentality or alter ego of the defendant ] and that the defendant engaged in ‘improper conduct’ in the formation or use of the corporation.” Bellairs, 716 So.2d at 323 (quoting Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120-21 (Fla. 1984)). Tall Tower made no allegation that Vertical Bridge was a mere instrumentality of its minority investor, Stonepeak.

Tall Tower is correct that a single transaction for profit can constitute engaging in a business venture. See Labbee v. Harrington, 913 So.2d 679, 683 (Fla. 3d DCA 2005). Labbee dealt with another long-arm statute, section 48.181, Florida Statutes (2003), that also applies to “nonresidents who engage in or carry on a business or business venture in the state.” Labbee, 913 So.2d at 682. The Third District determined that the allegation that the defendant had rented out real property in Florida for twenty years and then sold it was sufficient to describe a business venture. Id. at 683; see also Wm. E. Strasser Constr. Corp. v. Linn, 97 So.2d 458, 460 (Fla. 1957) (determining that by the purchase of real property in Florida and the execution of a contract to construct an apartment building that would be rented to tenants for income for the benefit of the defendants, the defendants “were initiating the first substantial steps toward setting themselves up in a business venture in this state”); State ex rel. Weber v. Register, 67 So.2d 619, 620 (Fla. 1953) (determining that the purchase of a citrus grove in Florida and subsequent listing of grove for sale constituted a business venture). The intent of the long-arm statute is “to regard nonresidents who have availed themselves of the privilege of ‘dealing in goods, services, or property, whether in a professional or nonprofessional capacity, within the State in anticipation of economic gain,’ as operating a business or business venture.” Labbee, 913 So.2d at 683 (quoting DeVaney v. Rumsch, 228 So.2d 904, 907 (Fla. 1969)).

Here, in addition to telephone calls and emails, the trial court found that over the course of approximately ten months Stonepeak had the following contacts in Florida: (1) three Stonepeak employees attended an introductory meeting and dinner in Florida with Tall Tower in January 2014; (2) an accountant acting as an agent for Stonepeak visited Tall Tower sometime not long after the January meeting and in October 2014 to audit Tall Tower’s financial records in relation to the potential Clear Channel transaction; and (3) a Stonepeak employee visited a Miami site of a Tall Tower broadcast tower in April 2014 to continue negotiations regarding the Clear Channel transaction.

Stonepeak never consummated a transaction to purchase the Clear Channel assets or even entered into a contract for purchase. Stonepeak did not enter into any LLC or management agreement with Tall Tower. Stonepeak did not deal in any property in Florida but investigated the possibility of entering into such a transaction. Stonepeak owned no real property in Florida. The trial court seemed to rely on the fact that a small percentage- of the broadcast towers were located in Florida, but Clear Channel owned these towers, not Stonepeak.

The Confidentiality Agreement that Sto-nep.eak signed in New York did not obligate it to do anything in Florida. And Tall Tower originally solicited Stonepeak in New York regarding, the Clear Channel transaction that was for the purchase of 472 broadcast towers .across the nation, although only 36 of the towers were located in Florida. Stonepeak. has no office in Florida and no license to do business in Florida.. Tall Tower failed to show that Stonepeak has any clients in Florida or that any percentage of its revenue is from Florida clients..

In applying the facts that the trial court found to the law, we conclude that, the trial court erred in finding that section 48.193(l)(a)(l) was satisfied based on “competent substantial evidence that Sto-nepeak engaged in a business venture in Florida.” The trial court did not find and the evidence does not support that Stone-peak dealt in any goods, services, or property in Florida or that Stonepeak’s activities in Florida showed a general course of business activity for pecuniary gain.

We also note that the trial court found in a conclusory sentence that there was “a sufficient connection between Stonepeak’s Florida activities and the causes of action alleged by Tall Tower to satisfy the con-nexity requirement.” But the order does not explain how Stonepeak’s conduct, including the meetings or communications with Tall Tower, could be the basis for the claim that Stonepeak disclosed confidential ipformation to a third party and assisted that party in purchasing the Clear Channel assets. See Canale, 20 So.3d at 466 (stating that for specific jurisdiction there must be “a causal connection between the defendant’s activities in Florida and the plaintiffs cause of action” (quoting Wendt, 822 So.2d at 1260)).

Therefore, the trial court erred in determining that the evidence established that Stonepeak engaged in a business venture in Florida under section 48.193(l)(a)(l).

Conclusion

Because Tall Tower did not establish either ground under section 48.193(l)(a)(l) or (l)(a)(2) asserted for personal jurisdiction, we reverse the order denying the motion to dismiss for lack of personal jurisdiction and remand for the trial court to dismiss the case. Based on our conclusion that Tall Tower did not establish a basis for personal jurisdiction under section 48.193, we do not reach the issue of sufficient minimum contacts with Florida. See Rautenberg, 193 So.3d at 930; Casita, L.P. v. Maplewood Equity Partners L.P., 960 So.2d 854, 858 (Fla. 3d DCA 2007).

Reversed and remanded for dismissal.

MORRIS and BLACK, JJ., Concur.

      . The evidence also does not show that Stone-peak was prohibited by any agreement from investing in another company such as Vertical Bridge.


author: Conner, J.

text:
    CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, as Trustee FOR NORMANDY MORTGAGE LOAN TRUST, SERIES 2013-18, Appellant, v. Sandra RUSHLOW, Appellee.
    No. 4D16-1898
    District Court of Appeal of Florida, Fourth District.
    August 23, 2017
    Thomas Wade Young and Joseph B. Towne of Lender Legal Services, LLC, Orlando, for appellant.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and W. Trent Steele of Steele Law, Hobe Sound, for appellee.
   ON MOTIONS FOR REHEARING AND CLARIFICATION

Conner, J.

We grant the appellant’s motions for rehearing and clarification filed on June 26, 2017, vacate our previous order denying appellant’s “alternative motions for rehearing, for a written opinion, or for rehearing en banc,” vacate the per curiam affirmance without opinion issued March 20, 2017, and substitute the following opinion.

The appellant appeals the trial court’s final judgment and orders granting the appellee’s motion for attorney’s fees subsequent to the involuntary dismissal of the foreclosure proceeding after trial. The trial court dismissed the case for multiple reasons, one of which was lack of standing, both at the initiation of suit and at trial. The appellee sought and was awarded fees at the trial level on the basis of the attorney’s fees clause in the mortgage granting fees to the appellee if successful in an action to enforce the mortgage and the reciprocal provision of section 57.105(7), Florida Statutes (2015).

As we recently held in Nationstar Mortgage, LLC v. Glass, 219 So.3d 896 (Fla. 4th DCA 2017) (en banc), “[a] party that prevails on its argument that dismissal is required because the plaintiff lacked standing to sue upon the contract cannot recover fees based upon a provision in that same contract.” Id. at 899. Thus, we reverse the trial court’s final judgment and orders awarding trial attorney’s fees to the appellee. Upon remand, the trial court shall vacate the final judgment and orders awarding trial attorney’s fees and enter an order denying appellee’s motion for attorney’s fees.

Reversed and remanded.

May and Damoorgian, JJ., concur.


author: SUAREZ, J. LUCK, J.,

text:
    Hortensia MARTIN, et al., Appellants, v. Jorge Jose SOWERS, M.D., Appellee.
    No. 3D15-290
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017

      Philip D. Parrish, P.A. and Philip D. Parrish; The Law Offices of Maria L. Rubio, P.A. and Maria L. Rubio, for appellants.
    Shannin Law Firm, P.A. and Nicholas A. Shannin, B.C.S. (Orlando); Lubell Rosen, LLC and Stephen L. Lubell (Ft. Lauder-dale), for appellee.
    " Before SUAREZ, SALTER, and LUCK,JJ.'

       Judge Luck did not participate in oral argument,

   SUAREZ, J.

- Appellant Hortensia Martin (“Martin”) and her husband and son appeal judgment in favor of Appellee Jorge Jose Sowers, M.D. after jury trial. We reverse finding that the trial court erred in' not granting summary judgment in favor of Appellants on the issue of the statute of limitations. The trial court’s failure to do so then allowed Appellee to inadvertently cloud the issues before the jury by enabling him to consistently argue that Martin had knowledge of her injury outside the scope of the statute of limitations and to engage in ’a closing argument which misled the jury as to the nature of the injury sued for. The cumulative effect of those arguments constituted harmful error subject to reversal under Vargas v. Gutierrez, 176 So.3d 315 (Fla. 3d DCA 2015) and Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010 (Fla. 2000).

In July 2008, when Martin was 35 years old, she had a mammogram which was interpreted by Appellee,, a radiologist. During the proceedings at issue, Appellee gave a deposition in which he admitted that in 2008 he “had a high degree of suspicion that Martin had malignant breast cancer; that there was a better than 70% probability that the suspicious speculated mass he observed on the mammogram was cancer.” However, Appellee did not communicate • that suspicion to Martin, or her- then-primary care physician. Instead, Appellee merely noted a nodule on the mammogram and recommended that an ultrasound be performed. Appellee’s report on the mammogram did not use any language typically used to inform the referring physician that there was any sort of “non-routine” finding. •

In October 2008 Martin changed her primary care physician. In November 2008 Martin received notice from'Appellee’s practice group that she needed to have follow-up studies to her July mammogram. When Martin contacted Appellee,s office for a copy of the mammogram, no one informed her that there was any suspicion of breast cancer. The record below- contains some evidence that in November 2008 Martin experienced some breast pain.

In April 2009 Martin’s new primary care physician ordered an ultrasound of Martin’s breast and did not report any problems with that ultrasound. That physician saw Martin in April, May and June 2009 and then left the practice group. In April 2010 another ultrasound was performed on Martin and a suspicious lesion was found. In May 2010 Martin was first informed that she had breast cancer after a biopsy was performed on the lesion. In August 2010 an MRI confirmed that Martin had lesions on her spine and an October 2010 biopsy of the bone lesion confirmed1 that Marin has metastatic disease in her bones. Martin has undergone radiation-and chemotherapy and has had no recurrence of breast cancer, but the metastatic eancer in her bones has never gone into remission and is progressing.

After properly filing for extensions of the statute of limitations and serving medical,malpractice pre-suit notices as required under Florida Statute Section 766.106 (2010), Martin and her husband and son filed suit against Appellee in October 2012. From the beginning of the action Appellee attempted to argue that Martin’s injury arose in November 2008 when she experienced some breast pain and that the statute of limitations on any claim against Appellee expired before the pre-suit filings were made. Despite Appellants’ opposing arguments that her theory of the case was that the claim arose when the'cancer appeared in' other parts of her body, and despite contrary controlling case law, the trial court concluded that the identity of Martin’s injury was'a jury question. This was error under the undisputed facts of this case.

The pleadings in this case make clear that Martin’s actual claim was not that any héalthcare professional caused her to have breast cancer as the trial court appears to have understood. Instead, her actual injury was the spread of that cancer to her bones and Appellee conceded below that if Martin’s claim was the spread of metastatic cancer to her bones, he would lose his claim on the statute of limitations. Appel-lee’s continual argument that Martin suffered pain in November 2008 and that her claim therefore arose at that time simply did not address Martin’s actual claim and rested upon the theory that Martin knew of her metastatic injury before she even knew she. had breast cancer. The trial court continually expressed confusion as to the injury claimed by repeatedly questioning why Martin’s injury was not simply the breast cancer — or, as argued by Appellee, the nodule that was discovered in October 2008. The trial court even went so far5 as to state “If I accept your version, then I must grant your directed verdict.”

Because the time-line was undisputed as to the date on which Martin first learned she had breast cancer and as to the date on which she first learned that she had metastatic cancer in her bones, the trial court should have granted Martin’s motion for summary judgment on Ap-pellee’s defense of statute of limitations. Martin properly filed pre-suit notices and automatic extensions of time in 2011 and 2012 and the filing of her Complaint in October 2012 was uncjisputecjly within the two-year statute of limitations — as extended — of the discovery of her metastatic cancer in August 2010. To paraphrase the Court in Johnson v. Mullee, 385 So.2d 1038 (Fla. 1st DCA 1980), the discovery of cancer in other parts of her body was the actual event that triggered the statute of limitations in this case. “[Sjince no injury was discovered until [the MRI] and since there is no evidence that injury should have been discovered by [Martin] prior thereto with the exercise of diligence, the cause of action likewise was not discovered until that time. [Martin] could not have discovered a cause of action prior to discovering she had been injured.” Id. at 1041.

Moreover, even if the breast pain Martin suffered in 2008 was evidence of breast cancer — which the record does not demonstrate — her breast cancer is not — and could not be — the injury for which Martin and her family sued Appellee. Wroy v. North Miami Medical Center, Ltd., 937 So.2d 1116 (Fla. 3d DCA 2006) (Mure to diagnose breast cancer not cognizable medical malpractice claim where appellant failed to submit any evidence that the failure decreased life expectancy).

Thus, Martin was entitled to summary judgment on the issue of the statute of limitations. Moreover, the denial of her motion on that issue is not moot as argued by Appellee because its denial allowed Appellee to make arguments which then misled the jury throughout the trial as to the nature of Martin’s claim. Appel-lee repeatedly directed the jury’s attention to the issue of what Martin knew and when she knew it — questions wholly unrelated to the issue of the spread of cancer to her bones and questions which should not have been discussed with the jury where Appellee stipulated that Martin was not, comparatively negligent. Appellee’s closing argument is strong evidence of Appellee’s arguments that confused the jury as to what was at issue in the case. Because of the trial court’s incorrect ruling, Appellee repeatedly informed the jury that because Martin had breast pain in 2008 and that breast pain was documented in medical records, he had proven that the statute of limitations had run on any claim Martin had against Appellee. Again, that is simply not the claim made and is mischar-acterization of the record. Additionally, Appellee objected to an accurate description‘of the claimed injury being placed in the jury instructions and then argued , to the jury that the absence of such a description was “carefully picked” by the trial court, again misleading the jury. The focus of Appellee’s argument and his repeated misstatements as to what Martin was claiming and when she had actual knowledge of her injury were sufficiently egregious to warrant reversal despite the absence of objection by Martin. .Those comments went directly to the heart of the case and constituted fundamental error which deprived Martin of a fair and impartial trial. Fasani v. Kowalski, 43 So.3d 805, 811 (Fla. 3d DCA 2010) (cumulative effect of numerous improper comments and arguments operated to deprive appellants of fair trial); Chin v. Caiaffa, 42 So.3d 300, 309 (Fla. 3d DCA 2010) (inflammatory and prejudicial comments and improper conduct required reversal); SPG Dadeland Assocs., Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008); Kaas v. Atlas Chem. Co., 623 So.2d 525, 526 (Fla. 3d DCA 1993).

In light of our reversal, we do not specifically address the additional claims raised by Appellant. However, in any re-trial which may occur in this matter, it should be noted that expert testimony is required before a claim of third-party causation may be presented to the jury in the context of a medical malpractice claim. Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984); Chaskes v. Gutierrez, 116 So.3d 479 (Fla. 3d. DCA 2013).

Based on the cumulative errors discussed above, we reverse and remand for further proceedings consistent with this opinion.

SALTER, J., concurs.

LUCK, J.,

dissenting:

The majority opinion concludes that, the combination of the trial court denying Mrs. Martin’s- motions for summary judgment and directed verdict on the statute of limitations defense, and Dr. Sowers’ closing argument comments about the same defense, confused the jury about the nature of Mrs. Martin’s injuries such that it reached the level of fundamental error. To me, these errors were not the “exceedingly rare” kind that are'“so significant that it deprived one party of the .right to a fair trial and due process.” Coba v. Tricam Indus., Inc., 164 So.3d 637, 646 (Fla. 2015). I respectfully dissent.

The. jury in this medical malpractice case was not affected by-the statute of limitations errors alleged by Mrs. Martin because it answered no when asked whether there was negligence on the part of Dr. Sowers that was the legal cause of Mrs. Martin’s injury, loss or damage. Letting the jury hear evidence and argument about the statute of limitations defense did not deprive Mrs. Martin of her right to a fair trial because the jury did not decide the statute of limitations issue. The jury stopped after the' first question on the verdict form which asked about Dr. Sowers’ negligence. Having found Dr. Sowers not negligent, the jury did not consider the statute of limitations defense, which was the second question on the verdict form. See Rosenfeld v. Seltzer, 993 So.2d 557, 560 (Fla. 4th DCA 2008) (“That being the case, the jury would not have considered the negligence of the child unless it first found negligence of Mr. Seltzer, which it failed to do, Because the jury did not reach the question of comparative negligence, any error in the giving of. the instruction on section 316.130(8) was harmless.”); Aetna Cas. & Sur. Co. v. Seacoast Transp. Co., 628 So.2d 480, 481 (Fla. 3d DCA 1988) (“Next, Dolphin cites error in the. trial court’s giving an instruction on .comparative negligence. We find no merit in its position.... More significant, however, is the fact that the jury did not reach the issue of Dolphin’s comparative negligence. The jury returned a' special verdict finding no negligence on the part of Seacoast. Thus, it is evident the jury did not address the question of Dolphin’s comparative negligence and no error appears, (citations and footnote omitted)). . .

Dr. Sowers’ confusing closing argument about Mrs. Martin’s injury (breast cancer vs. the metastasized cancer to the bones, quoted at length in footnote four), likewise, did not impact whether Dr. Sowers- was negligent in missing or delaying the diagnosis, which was the first question the jury was asked and the only one it answered. There was independent competent substantial evidence (Dr. Hurwitz’s expert testimony, for example), having nothing to do with the statute of limitations defense, supporting the jury’s verdict that Dr. Sowers radiology services met the standard of care^

In other words, whatever injury resulted — breast cancer or the spread of breast cancer to Mrs. Martin’s bones — it did not affect the issue ultimately decided by the jury: whether Dr. Sowers’ radiology decisions in July 2008 were negligent. Because one has nothing to do with the other, I cannot say that the statute-of-limitations-defense errors deprived Mrs. Martin of due process and a fair trial for fundamental error purposes on the negligence verdict. The errors being harmless, I would affirm the judgment for Dr. Sowers.

      . At a minimum, the trial court should have granted Appellants’ Motion for Directed Verdict on the issue, but we believe the granting of that motion would have come- too late in that Appellee’s argument, had already. misled and confused the jury about the injury Martin claimed. The same is true with respect to Appellants’ claim regarding the jury instructions — at a minimum the trial court should have allowed the instruction as requested, but such ruling would have come after the jury was already misled. .

      . Johnson v. Mullee, 385 So.2d 1038 (Fla. 1st DCA 1980) (medical malpractice cause of action arose when cancer appeared in other parts of body); Wroy v. North Miami Med. Ctr., Ltd., 937 So.2d 1116 (Fla. 3d DCA 2006) (diagnosis of breast cancer without any proof of spreading of the cancer not actionable). See also, Tanner v. Hartog, 618 So.2d 177 (Fla. 1993) (“knowledge of fire injury as referred to in rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice.”).

      . See, TR. 1284 "[APPELLEE'S COUNSEL]: .... Did she know she had metastatic cancer by that date? Of course not. I’m not arguing that she did. If that is the standard, I lose. If she had to know she had metastatic cancer prior to that date, then I lose. I’m going to be the first one to admit that ....

      . The pertinent portions of Appellee’s closing arguments stated:
      So now we get to the statute of limitations. So question number two is a statute of limitations question and here it goes: Did Hortensia Martin know or by the use of reasonable care should she have known on or before April 29, 2009 that she had sustained an injury, loss, or damage and that there was a. reasonable possibility that the injury, loss or damage was caused by medical negligence.
      There’s a statute of limitation. The statute of limitations begins to run, it’s triggered — if you imagine a stopwatch, it starts the moment these two things happen, the things that are the second part of the question; One she knew or should have known she sustained an injuiy, and two, that she knew or should have known it was a reasonable possibility that the injuiy, loss, or damage was caused by medical negligence. The moment those two things start, the statute begins to run. That’s the way it works. It doesn’t say the lawsuit has to be filed by that date. It says those two things have to have occurred prior to that date, April 29, 2009.
      So answering this question is very simple. We need to simply answer this question.... First of all, let’s talk about the first prong. Had she sustained an injury, loss, or damage. Okay. Let’s talk about that. What is injury, loss or damage? Is'metastasized cancer injuiy, loss op damage? Yes. Of course It is. But does it say in the question that she has to have sustained metastasized cancer? No, it does not. The question simply says: Had she sustained injury. It doesn’t say had she sustained the injury. It says sustained injury, loss or damage, [e.s.]
      I will tell you the Court carefully picks the words for each question that's on this verdict fonn. These are the words and this is done by the Judge and the Judge picks these words because these are the words that are appropriate and these — this is the question and if you answer a question that’s not here, you are not doing your job. You’ve got to answer the question that's here. Had she .sustained injury.
      So what is the injury. Well that’s very simple, right? We know — we know — the first onset of injury she had in this case, what was it? She had a breast mass that caused pain. Well that’s not — that’s not the ultimate injury. You’re a hundred percent right. It’s not. A breast mass that caused pain ....
      [N]ot a single complaint up to June 2008. And then what happens? She goes for a mammogram, she gets her mammogram report, and then she starts to develop pain. Prior to that she was asymptomatic, meaning no pain, and now she develops pain. So we have to prove this. So remember at the beginning I told you — we’re going to talk about evidence and we're going to .talk about medical records. Well let’s talk about medical records [.] I am going to have some medical records I am going to show you that will prove that she had pain prior to this date....
      So this is the history and this date is June 2010 — June 4th 2010, and it says right here: Patient reports a one and a half year history of right breast mass associated with pain. Do the math. That gets you to 12/04/20[08]. It not just pain. It’s not just breast mass. It’s breast mass associated with pain. She didn’t have that at any time with [the first primary care physician]. None whatsoever. And then what happens? November she's told she has a nodule and then shortly thereafter, just a few weeks, she. starts to develop pain. Oh my God. Oh my God. Right in the spot where they told me I have a nodule, now I am developing pain. The statute/trigger has, been set because it is prior to April 29, 2009. June — December 2008 is prior to April 2009. The trigger has been set. She knows she has pain. She admits it to the surgeon a year and a half later....
      We have two medical records, absolute un-controverted medical evidence, that shows she has breast pain prior to that date. That answers question number one. There you go. You've got your question to — answer to — number one. I proved it.
      TR. 1496-1503.

      . This argument is analogous to those made and reversed in Carnival Corp. v. Pajares, 972 So.2d 973, 977-978 (Fla. 3d DCA 2007) and Hernandez v. Home Depot, U.S.A., Inc., 695 So.2d 484 (Fla. 3d DCA 1997).

      . Tanner v. Hartog, 618 So.2d 177, 181 (Fla. 1993) (knowledge of injury includes knowledge that it could have been caused by medical malpra'ctice).


author: PER CURIAM.

text:
    PORTOFINO TOWER ONE ASSOCIATION AT PENSACOLA BEACH, INC., Portofino Tower Two Association at Pensacola Beach, Inc., Portofino Tower Three Association at Pensacola Beach, Inc., Portofino Tower four Association at Pensacola Beach, Inc., and Portofino Tower Five Association at Pensacola Beach, Inc., Appellants, v. Chris JONES, Property Appraiser for Escambia County, Florida; Janet Holley, Tax Collector for Escambia County, Florida, Appellees.
    CASE NO. 1D15-5888
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017.
    Rehearing Denied December 14, 2017
    Edward P. Fleming and R. Todd Harris of McDonald, Fleming, Moorhead, Pensar-cola, for Appellants.
    Thomas M. Findley and Robert J. Tel-fer,. III of Messer Caparellp, P.A., Tallahassee, for Appellees.
    -Loren E. Levy and Jon F. Morris of the Levy Law Firm, Tallahassee, for Amicus Curiae The Property Appraisers’Association of Florida, Inc., in ‘support of Appel-lees.
   PER CURIAM.

For the reasons stated in Beach Club Towers Homeowners Ass’n v. Jones, 1D15-5886, 281 So.3d 566, 2017 WL 4526773 (Fla. 1st DCA Oct. 11, 2017), we reverse the order under review and remand for further proceedings consistent with Beach Club Towers.

REVERSED and REMANDED.

OSTERHAUS and WINOKUR, JJ„ CONCUR. BOYER, TYRIE, ASSOCIATE JUDGE, DISSENTS.