text:
    Joe MADL and Melissa Madl, Appellants, v. WELLS FARGO BANK, N.A., as Trustee Under the Pooling and Servicing Agreement Relating to Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2005-2, et al., Appellees.
    Case No. 5D16-53
    District Court of Appeal of Florida, Fifth District.
    Opinion filed December 29, 2017 On Rehearing May 18, 2018
    Beau Bowin, of Bowin Law Group, Satellite Beach, for Appellants.
    Adam Shamir, David S. Ehrlich, and Nicole R. Topper, of Blank Rome LLP, Fort Lauderdale, and Monika E. Siwiec, and Manuel S. Hiraldo, of Blank Rome LLP, Boca Raton, for Appellee, Wells Fargo Bank, N.A., As Trustee Under the Pooling and Servicing Agreement Relating to Impac Secured Assets Corp, Mortgage Pass Through Certificates, Series 2005-2.
    Jacob A. Brainard, Scott C. Davis and Michael H. Casanover, of Business Law Group, P.A., Tampa, for Appellee, Suntree Master Homeowners Association, Inc.
    No appearance for other Appellee.
   EDWARDS, J.

Joe and Melissa Madl appeal the final judgment of foreclosure entered in favor of Appellee, Wells Fargo Bank, N.A., as Trustee under the Pooling and Servicing Agreement Relating to Impac Secured Assets Corp, Mortgage Pass-Through Certificates, Series 2005-2. Appellants correctly assert that Wells Fargo failed to prove that it had standing and that it gave Appellants the required notice of default. Accordingly, we reverse and remand for the trial court to enter an order of involuntary dismissal. We also grant Appellants' motion for appellate attorney's fees.

Melissa Madl executed a note and both Appellants executed a mortgage in 2005 in favor of Impac Funding Corporation. In 2006, Impac assigned the mortgage to Wells Fargo. Also in 2006, Wells Fargo filed a foreclosure action against Appellants on the subject note and mortgage, but it then voluntarily dismissed that case in 2007. Following that dismissal, Deutsche Bank National Trust filed a foreclosure action against Appellants regarding the same note and mortgage; that case was voluntarily dismissed in 2009.

Wells Fargo initiated the instant foreclosure action in April 2009, claiming in its complaint that it was the owner and holder of the note and that it had complied with all conditions precedent to foreclosing Appellants' mortgage. The copy of the promissory note attached to Wells Fargo's complaint was payable to Impac and there were no indorsements or allonges attached. The trial court denied Appellants' motion to dismiss the complaint based on a lack of standing. In their answer, Appellants raised lack of standing and the failure to comply with the notice provisions of paragraph 22 of the mortgage, along with other defenses.

In an effort to establish standing, Wells Fargo moved into evidence the purported original promissory note that contained an undated blank indorsement allegedly signed by Impac. Wells Fargo's witness, Mr. Handville, an employee of Ocwen Loan Servicing, testified that he did not know when the indorsement was made, and he agreed that the copy of the promissory note attached to the complaint lacked any indorsement. Wells Fargo also introduced into evidence, over objection, an unsigned copy of a pooling and servicing agreement ("PSA") in an effort to prove that Appellants' loan was included in the trust it oversaw. The PSA had no official seal, was not separately authenticated, and had merely been copied from the Security and Exchange Commission's website.

Mr. Handville also testified about whether proper notification of default and acceleration had been given to Appellants. He said that Ocwen was the current servicer of the mortgage but that GMAC Mortgage had been the servicer at the time the required default notice should have been sent. According to Mr. Handville, from what he had been told, GMAC typically sent relevant information to a third-party vendor who was supposed to prepare and mail the default letters. He could not testify that GMAC actually transmitted the default notice data to the third-party vendor, that the third-party vendor received the data, or that the third-party vendor actually prepared or mailed the default notice to Appellants. He assumed, based on his interpretation of GMAC's computerized comment documents, that the notice had been sent; however, he admitted they were in a format that was unfamiliar to him. The trial court denied Appellants' motion for involuntary dismissal as well as their post-judgment motion for rehearing. The trial court also entered judgment in favor of Wells Fargo.

While it should be clear to all, it apparently bears repeating that the party seeking to foreclose a mortgage must have standing at the time the complaint is filed. See Rodriguez v. Wells Fargo Bank, N.A. , 178 So.3d 62, 63 (Fla. 4th DCA 2015). Where the plaintiff relies on an undated indorsement to establish its standing, it must prove that the indorsement was made prior to the filing of the complaint and that the indorsed note was in the plaintiff's possession at the time the suit was filed. See McLean v. JP Morgan Chase Bank Nat'l Ass'n , 79 So.3d 170, 174 (Fla. 4th DCA 2012). Commonly, plaintiffs prove this fact by attaching a copy of the note bearing the undated indorsement to the complaint. See Ortiz v. PNC Bank, Nat'l Ass'n , 188 So.3d 923, 925 (Fla. 4th DCA 2016). However, in this case, the copy of the note Wells Fargo attached to its complaint lacked the indorsement found on the original note admitted into evidence; therefore, the copy does not prove standing at the time suit was filed. See Friedle v. Bank of N.Y. Mellon , 226 So.3d 976, 978-79 (Fla. 4th DCA 2017). Another way to prove when an indorsement was placed on a note is through testimony, but Wells Fargo's witness admitted he had no knowledge of when that indorsement was made. Furthermore, on cross-examination, Mr. Handville testified that the documents he reviewed showed that, from 2007 until April 2014, GMAC, Wells Fargo, and their lawyers could not locate the original note. Five years after the underlying suit was filed, Deutsche Bank presented the note to Ocwen, with no explanation offered for where the "original" note had been or when and how the blank indorsement was added.

Wells Fargo also tried to establish standing by offering a copy of an unsigned PSA that supposedly included Appellants' loan. It is difficult to understand how this unexecuted document, even if properly authenticated, could establish standing or that Appellants' loan was included in the relevant trust. Wells Fargo failed to prove that this document was admissible under the business records exception because it was not created or originally maintained by Wells Fargo or Ocwen, but instead was a copy of a printout obtained from the SEC's website. See id. at 978. Thus, Wells Fargo's reliance on Deutsche Bank National Trust Co. v. Marciano , 190 So.3d 166 (Fla. 5th DCA 2016), and Bolous v. U.S. Bank National Ass'n , 210 So.3d 691 (Fla. 4th DCA 2016), is misplaced. The plaintiffs in those cases properly proved that the relevant PSAs specifically included the loans in question, which had been transferred to the respective plaintiffs prior to filing suit, and the PSAs were either properly admitted as business records or the borrower failed to object to their admittance. Here, Wells Fargo's lack of standing mandates reversal.

Furthermore, Wells Fargo did not carry its burden of proving compliance with the notice of default provisions contained in paragraph 22 of the mortgage. See Martins v. PNC Bank, Nat'l Ass'n , 170 So.3d 932, 936 (Fla. 5th DCA 2015). There was no copy of a demand letter admitted into evidence; at best, there was a copy of text maintained by GMAC that the third-party vendor should have included in a default letter. Proof that the default letter was drafted or mentioned in the company's notes is not sufficient. See Allen v. Wilmington Tr., N.A. , 216 So.3d 685, 687-88 (Fla. 2d DCA 2017). "Instead, mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." Id. at 688. Mr. Handville was unable to testify that the default notification letter had been drafted, much less that it had been mailed first class or was actually received by Appellants. His testimony did not prove compliance with paragraph 22 of the mortgage, as he had no documentation from the third-party vendor that a default letter had been prepared or sent by any means to Appellants, and he had no knowledge about the vendor's business practices. See Edmonds v. U.S. Bank Nat'l Ass'n , 215 So.3d 628, 630 (Fla. 2d DCA 2017). Failure to comply with this condition precedent is an additional, independent ground mandating reversal of the judgment. See Figueroa v. Fed. Nat'l Mortg. Ass'n , 180 So.3d 1110, 1117 (Fla. 5th DCA 2015).

Accordingly, we reverse the judgment entered in favor of Wells Fargo and remand the case to the trial court with instructions to enter an order of involuntary dismissal. By a separate order, we grant Appellants' motion for appellate attorney's fees.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ON MOTIONS FOR REHEARING, CERTIFICATION OF CONFLICT, AND RECONSIDERATION

Appellee, Wells Fargo, filed motions for rehearing, certification of conflict, and reconsideration, in which it argues, in part, that we erred in granting Appellants' motion for attorney's fees pursuant to the mortgage and section 57.105(7), Florida Statutes (2015). Because there was a contractual relationship between the parties and Appellants are the prevailing parties, they are entitled to attorney's fees in accordance with the mortgage and section 57.105(7). As discussed in more detail below, we deny Appellee's motions concerning the award of attorney's fees to Appellants. Appellee has also filed a motion for rehearing en banc, which is denied by a separate order.

Under current Florida law, the plaintiff in a mortgage foreclosure suit must prove that it has standing both at the time suit is filed and at the time of trial; failure to have standing at either time requires dismissal of the suit. See McLean v. JP Morgan Chase Bank Nat'l Ass'n , 79 So. 3d 170, 173 (Fla. 4th DCA 2012). Appellee claimed to be the holder of the note, and thus entitled to sue. However, Appellee's proof was lacking because: (1) the copy of the note attached to the complaint was not indorsed either in blank or to Appellee; (2) Appellee and its counsel had been searching for the note for a period of years that extended beyond the initiation of this suit; and (3) the note was ultimately delivered by Deutsche Bank, who had sued Appellants and claimed to be the holder of the same note, to Appellee five years after this suit was filed, but while it was still pending. Deutsche Bank dismissed its foreclosure suit against Appellants after Appellee had filed the underlying suit. Based upon this remarkable combination of facts, we found that Appellee lacked standing when it filed suit. However, it did appear to have standing by the time of trial as a result of Deutsche Bank's unexplained delivery of the allegedly original note. Unlike the copy attached to the complaint, the "original" note bore an indorsement in blank, the timing of which was not explained.

We also determined that Appellee failed to prove that it or anyone acting on its behalf provided Appellants with notice of default and intent to accelerate, a condition precedent to foreclose. Accordingly, because of a lack of standing and a lack of proving compliance with a condition precedent, we reversed the judgment in favor of Appellee and instructed the trial court to involuntarily dismiss the case. Thus, Appellants are prevailing parties.

Appellants' mortgage had been assigned to Appellee. Like many others, the subject mortgage provides that only the lender is entitled to recover its litigation and appellate attorney's fees incurred in successful collection or foreclosure actions. See Fla. Cmty. Bank v. Red Rd. Residential, LLC , 197 So. 3d 1112, 1114 (Fla. 3d DCA 2016). "[B]y operation of law, section 57.105(7) bestows on the other party to the contract[-the borrower-]the same entitlement to prevailing party fees." Id. at 1115. Section 57.105(7) transforms a unilateral right into a reciprocal right so that all parties to the contract are entitled to recover attorney's fees upon prevailing. HFC Collection Ctr., Inc. v. Alexander , 190 So. 3d 1114, 1116 (Fla. 5th DCA 2016).

In order to obtain prevailing party fees pursuant to section 57.105(7), the moving party must prove three requirements: 1) the contract provides for prevailing party fees, 2) both the movant and opponent are parties to that contract, and 3) the movant prevailed. See Nationstar Mortg. LLC v. Glass , 219 So. 3d 896, 898 (Fla. 4th DCA 2017) (en banc); Fla. Cmty. Bank , 197 So. 3d at 1115. First, as noted above, the Appellants' mortgage contains the prevailing party fee provisions. Second, by virtue of the assignment and the indorsement, Appellee joined Appellants, the original mortgagors, as parties to the contract. Third, Appellants prevailed on appeal, resulting in dismissal of the underlying lawsuit. Having satisfied all three requirements, Appellants are entitled to recover their attorney's fees and expenses from Appellee.

Conversely, section 57.105(7) cannot support an award of fees in favor of parties who are strangers to the contract or where a contract never existed. See Fla. Cmty. Bank , 197 So. 3d at 1115 (defendant whose signature was forged on mortgage cannot recover fees; not party to the contract); Bank of N.Y. Mellon v. Mestre , 159 So. 3d 953, 956-57 (Fla. 5th DCA 2015) (defendants not entitled to fees where their signatures were forged on mortgage being foreclosed because not parties to contract). Nor can section 57.105(7) be employed to impose fees on a non-party to the contract. See Bank of N.Y. Mellon Tr. Co. v. Fitzgerald , 215 So. 3d 116, 121 (Fla. 3d DCA 2017) (defendant borrowers not entitled to fees under section 57.105(7) after proving mortgage never assigned and note never delivered to plaintiff); HFC Collection Ctr., Inc. , 190 So. 3d at 1117 (defendant not entitled to fees under section 57.105(7) after proving that her credit card agreement and debt were never assigned to plaintiff.) Reciprocity under section 57.105(7) is available only when, as here, both sides are parties to the contract. Given the lack of contractual mutuality in the just-discussed cases, they do not support Appellee's position.

Appellee relies upon cases from the Fourth District Court of Appeal, which on their face stand for the proposition that a foreclosure plaintiff's lack of standing automatically forecloses application of section 57.105(7). In Glass , the fourth district broadly stated that "[a] party that prevails on its argument that dismissal is required because the plaintiff lacked standing to sue upon the [mortgage] contract cannot recover fees based upon a [fee] provision in that same contract." 219 So. 3d at 899. The Glass opinion does not disclose whether there was or was not any contractual relationship between those parties or whether the plaintiff had standing at the time of trial; thus, we have no basis to agree or disagree with the outcome. Appellee's reference to the fourth district's decision in GMAC Mortgage, LLC v. Wallach , 231 So. 3d 3 (Fla. 4th DCA 2017), sheds no light on the subject as the two-sentence opinion does not discuss the existence vel non of any contractual relationship between the parties.

Appellee also relies upon the fourth district's opinion Christiana Trust v. Rushlow , 231 So. 3d 558 (Fla. 4th DCA 2017), in which it reversed, citing to Glass , the trial court's award of attorney's fees to defendant pursuant to section 57.105(7) after finding that plaintiff lacked standing "both at the initiation of suit and at trial." Id. at 559. Rushlow appears to be consistent with those cases in which, unlike here, there "is no contract between the parties, which would entitle one to recover attorney's fees in the first place, [thus] 'there is no basis to invoke the compelled mutuality provisions' of § 57.105(7)." HFC Collection Ctr., Inc., 190 So. 3d at 1117 (quoting Fla. Med. Ctr., Inc. v. McCoy , 657 So. 2d 1248, 1252 (Fla. 4th DCA 1995) ). Thus, we find no conflict between our decision and Rushlow .

Accordingly, Appellee's motions for rehearing, certification, and reconsideration are denied.

ORFINGER and WALLIS, JJ., concur.

      Wells Fargo's complaint included a separate count to establish a lost note; however, that count was voluntarily dismissed prior to trial.

      During the trial, Appellants challenged whether the "original" note and indorsement were genuine, including through expert testimony from a questioned documents expert. Mr. Handville had not seen the original note until the day of trial and could not tell if it included an original signature or was a copy created using a color ink jet printer. However, that issue was not fully developed here, and its resolution is not necessary for this decision.

      We deny the balance of Appellee's motions for rehearing, certification of conflict, and reconsideration. In its motions, Appellee has improperly re-argued its case and has taken literary license with the facts established by the record, conduct that may result in the imposition of sanctions in the future if counsel chooses to repeat this behavior. See Boardwalk at Daytona Dev., LLC v. Paspalakis , 212 So. 3d 1063 (Fla. 5th DCA 2017).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard Manuel ALVARADO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3533
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 20, 2018
    Frank J. Bankowitz, of Law Office of Frank J. Bankowitz, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Holden v. State, 90 So.3d 902, 903 (Fla. 1st DCA 2012) ("[W]e note that a defendant who has pled no contest may not preserve as an issue the trial court's failure to suppress a confession, absent a stipulation by the State that the issue is dispositive of the case.") (citing Brown v. State, 376 So.2d 382, 385 (Fla. 1979) ) ).

PALMER, TORPY and BERGER, JJ., concur.


text:
    TT OF INDIAN RIVER, INC., d/b/a Mercedes Benz of Melbourne and James C. Dorman, Appellants, v. Heidi FORTSON, Appellee.
    Case No. 5D17-0279
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 9, 2018
    Richard A. Sherman, Sr. and James W. Sherman, of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Chris Killer and Todd Bohnenstiehl, of the Law Offices of J. Christopher Norris, Orlando, for Appellants.
    Mark S. Roman and Morgan L. Gaynor, of Roman & Gaynor, Clearwater, Douglas R. Beam, of Douglas R. Beam, P.A., Melbourne, and Celene H. Humphries and Thomas J. Seider, of Brannock & Humphries, Tampa, for Appellee.
    ON CONFESSION OF ERROR
   PER CURIAM.

Pursuant to Heidi Fortson's Confession of Error, we reverse the Final Judgment for Costs and remand this matter to the trial court for further proceedings.

REVERSED and REMANDED.

ORFINGER, TORPY, and WALLIS, JJ., concur.


text:
    Maynor MURILLO-ARGUETA, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-921
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 6, 2018
    Tanya M. Dugree, Tampa, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the December 20, 2017 order denying Petitioner's amended motion for post-conviction relief, filed in Case Numbers 2012-3986-CF and 2013-1025-CF, in the Fifth Judicial Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, WALLIS, and EDWARDS, JJ., concur.


text:
    Kevin Lonell SQUAIR, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-874
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 6, 2018
    Michael A. Graves, Public Defender, Brooksville, and Eric R. Tippin, Assistant Public Defender, Brooksville, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 21, 2017 judgment and sentence rendered in Case No. 15-CF-001809, in the Circuit Court in and for Hernando County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER and BERGER, JJ., concur.


author: SLEET, Judge.

text:
    Terry Lamar JAMES, Jr., DOC #R75570, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4793
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius C. Demps, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Terry Lamar James, Jr., challenges his conviction and sentence for aggravated assault on a law enforcement officer with the use of a firearm. James was convicted following a jury trial, and the trial court sentenced him pursuant to section 775.087, Florida Statutes (2012), to a mandatory minimum term of twenty years to be served consecutively to sentences imposed on other offenses for which James was tried separately. We affirm James' conviction without comment. However, we must reverse James' sentence because the trial court mistakenly believed that it had no discretion in imposing the twenty-year mandatory minimum term consecutively to James' other sentences. The State concedes the error.

At the time of the offense, officers were attempting to arrest James for multiple robberies that had taken place the day before. During one of those robberies, the gun used in the instant offense was stolen. At sentencing, the trial court stated as follows:

I think the law requires me to give a consecutive sentence based on my reading of the statute. So, that's what I'm following in this situation. It would be a tougher call given the length of the sentences he has already had and his age as to whether if I had discretion I would impose it consecutive or not, but I think [the prosecutor] is correct; based on the language of that statute it's pretty clear.
While that's a creative argument and credit to [defense counsel] for coming up with it that it's part of one, one criminal sequence. I think it was separated by a day, right, if I'm remembering correctly?

(Emphasis added.) However, the Florida Supreme Court has held that

controlling precedent establishes the following points of law for purposes of sentencing under the current 10-20-Life statute. Generally, consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged. It follows, therefore, that a trial court must impose the mandatory minimum sentences concurrently under such circumstances.
If, however, multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory. In other words, a trial judge has discretion to order the mandatory minimum sentences to run consecutively, but may impose the sentences concurrently.

Williams v. State, 186 So.3d 989, 993 (Fla. 2016) (emphasis added) (citations omitted).

Here, it is clear from the record that the trial court believed that consecutive sentencing was mandatory rather than permissible. Accordingly, we must reverse James' sentence and remand for resentencing. See Mason v. State, 210 So.3d 120, 121 (Fla. 2d DCA 2016) ("When a trial court labors under the mistaken impression that it cannot exercise its discretion at sentencing, the appellant is entitled to be resentenced.").

Affirmed in part, reversed in part, and remanded.

CASANUEVA and LUCAS, JJ., Concur.

      Section 775.087 is commonly referred to as the 10-20-Life statute.


author: LaROSE, Chief Judge.

text:
    William SALLEE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5407
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018
    Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

William Sallee appeals the judgment and sentences imposed following entry of his guilty plea. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A), 9.140(b)(1)(A). We affirm his conviction. However, because the trial court made an oral determination of competency without entry of the requisite written order, we remand for the trial court to enter a written nunc pro tunc order finding Mr. Sallee competent to stand trial.

Background

Mr. Sallee was charged with several offenses arising from his use of a cellphone to record videos and take pictures of sleeping girls. Questions quickly arose concerning his competency to proceed. Defense counsel successfully moved for an order appointing two mental health experts to evaluate Mr. Sallee. See Fla. R. Crim. P. 3.210(b) ("If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition...."). Each expert filed a written report concluding that Mr. Sallee was competent.

The trial court then conducted a competency hearing. Mr. Sallee attended the hearing with counsel. Neither side called a witness. Instead, defense counsel recounted the contents of the experts' reports. Upon questioning by the trial court, defense counsel conceded that each expert had found Mr. Sallee competent. The State agreed. The trial court instructed defense counsel to prepare an order finding Mr. Sallee competent. No such order appears in our records.

Later, Mr. Sallee pleaded guilty. Pursuant to a negotiated disposition, the trial court sentenced him to fifteen years in prison followed by fifteen years of probation as a sexual offender and a sexual predator. The trial court conducted a thorough plea colloquy with Mr. Sallee.

Analysis

Mr. Sallee asserts that the trial court failed to conduct a proper competency hearing, thereby depriving him of due process. Cf. Dougherty v. State, 149 So.3d 672, 677 (Fla. 2014) ("Generally, a proper hearing to determine whether competency has been restored after a period of incompetence requires 'the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.' " (quoting Jones v. State, 125 So.3d 982, 983-84 (Fla. 4th DCA 2013) ) ). He insists that as part of the hearing, the trial court was required to receive witness testimony; and, based upon such testimony, make an independent determination that he was competent to proceed. He asks us to vacate his convictions, and remand for a proper competency hearing.

We note that "[a] judicial determination of incompetence remains valid until there is a subsequent judicial determination that the petitioner is competent to proceed." Metzgar v. State, 741 So.2d 1181, 1183 (Fla. 2d DCA 1999) (quoting Downing v. State, 617 So.2d 864, 866 (Fla. 1st DCA 1993) ); see also Dessaure v. State, 55 So.3d 478, 482-83 (Fla. 2010) ("Once a defendant has been deemed competent, the presumption of competence continues throughout all subsequent proceedings."). But the trial court never found Mr. Sallee incompetent. In the absence of a judicial determination to the contrary, Mr. Sallee is, was, and remains presumptively competent. Cf. Child v. Wainwright, 148 So.2d 526, 527 (Fla. 1963) ("A defendant is presumed sane...."); DeFriest v. State, 448 So.2d 1157, 1157 (Fla. 1st DCA 1984) ("There is a legal presumption of sanity in criminal proceedings." (citing Campbell v. Stoner, 249 So.2d 474 (Fla. 3d DCA 1971) ) ); King v. State, 387 So.2d 463, 464 (Fla. 1st DCA 1980) (observing first that "if a person is adjudicated to be mentally incompetent, it is presumed he continues to be so until it is shown his sanity has returned" and then holding "that the burden [to prove appellant's competency] did not shift to the state because appellant had not been previously declared incompetent").

Mr. Sallee claims that the hearing was inadequate to protect his due process rights not to be tried or convicted while incompetent. See Dougherty, 149 So.3d at 679 ("[W]e conclude that a trial court's failure to observe the procedures outlined in Florida Rules of Criminal Procedure 3.210 - 3.212 -procedures determined to be adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial-deprives a defendant of his due process right to a fair trial."). He relies on Reynolds v. State, 177 So.3d 296, 299 (Fla. 1st DCA 2015), in which the court reversed a revocation order and resulting sentence "because the trial court failed to hold a competency hearing prior to accepting Appellant's plea."

Reynolds is inapposite. Mr. Reynolds received no competency hearing. Id. at 298 ("[T]he trial court did not hold a hearing on the [competency] issue ... before accepting his plea admitting to the probation violation. This was error."). In contrast, Mr. Sallee had a hearing. See Cochran v. State, 925 So.2d 370, 373 (Fla. 5th DCA 2006) ("[O]nce the trial court enters an order appointing experts upon a reasonable belief that the defendant may be incompetent, a competency hearing must be held.").

There appears to be no dispute that "where the parties and the judge agree, the trial [c]ourt may decide the issue of competency on the basis of the written reports alone." Fowler v. State, 255 So.2d 513, 515 (Fla. 1971) ; accord Roman v. State, 163 So.3d 749, 751 (Fla. 2d DCA 2015) ("If the parties agree, the trial court can make its competency determination based solely on experts' reports.").

The record reflects that defense counsel explained the contents of the experts' reports, noting that although the reports concluded that Mr. Sallee "is competent ... there [are] some things where he's viewed as marginal or that you know there's questions or concerns about it." Counsel advised the trial court that "what we're going to need to do is just try and do the best that we can and if there's something that causes concern where we need to reexamine the question of competency then do that at that time." Seemingly, defense counsel left it to the trial court to assess Mr. Sallee's competency based upon the reports. See Dougherty, 149 So.3d at 679 ("Although the trial court, when the parties agree, may decide the issue of competency on the basis of written reports alone, it cannot dispense with its duty to make an independent determination about a defendant's competency...."); see also Rumph v. State, 217 So.3d 1092, 1095 (Fla. 5th DCA 2017) ("Competency is a legal rather than a medical question, and the expert reports prepared by the examiners are merely advisory."). At the very least, defense counsel's explanation of the experts' reports, without requesting witness testimony, indicates the parties' agreement that the trial court resolve the issue of Mr. Sallee's competency solely on the basis of the experts' reports. See Charles v. State, 223 So.3d 318, 329-30 (Fla. 4th DCA 2017) ("Although there was not an express stipulation to decide the issue of competency solely on the basis of Dr. Brannon's report, it appears from the record that the parties and the judge agreed to decide the issue of competency on the basis of the written report alone. Before concluding the competency hearing, the trial court specifically asked if there was 'a request for anything else with respect to proceeding forward....' The parties' silence in the face of this clear opportunity to request either live testimony or additional competency evaluations demonstrates that the parties agreed to the trial court's procedure of deciding the issue of competency on the basis of Dr. Brannon's written report alone.").

We also observe that Mr. Sallee was present at the competency hearing; the trial court was able to observe his demeanor. We cannot conclude that Mr. Sallee was deprived of due process. See Holland v. State, 185 So.3d 636, 637 (Fla. 2d DCA 2016) (concluding that appellant was not deprived of due process where "[a]t Holland's competency hearing, with Holland present, the court considered the experts' reports, the statements of defense counsel, and Holland's demeanor").

At the close of the competency hearing, the trial court directed Mr. Sallee's counsel to prepare an order memorializing its competency determination. No such order is in our record. "[I]f a trial court finds that a defendant is competent to proceed, it must enter a written order so finding." Dougherty, 149 So.3d at 678 ; see also Fla R. Crim. P. 3.212(b) ("If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed."). This court has held that the failure to enter a written order requires remand for entry of an order nunc pro tunc. See Hampton v. State, 988 So.2d 103, 106 (Fla. 2d DCA 2008) ("Where, as here, a court has orally found a defendant competent but erroneously failed to enter the required written order, we have affirmed with directions to enter the order nunc pro tunc."). Consequently, we remand this case to the trial court for entry of a nunc pro tunc order finding Mr. Sallee competent to stand trial.

Affirmed; remanded with instructions.

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.

      As used in these cases, the terms "sane" and "insanity" refer to the criminal defendant's competency.


author: Winokur, J.

text:
    FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. Shirley MCCLAIN, Appellee.
    No. 1D16-474
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Tracy L. C. George, Leslei G. Street, and Cynthia L. Hain, of Florida Agency for Health Care Administration, Tallahassee, for Appellant.
    Cristine M. Russell of Rogers Towers, P.A., Jacksonville, Sharon Bourassa and Debra Koprowski, Legal Aid Service of Broward County, Inc., Plantation, for Appellee.
   Winokur, J.

This case presents again the issue we recently addressed in Florida Highway Patrol v. Jackson , 238 So.3d 430, 2018 WL 1023746 (Fla. 1st DCA Feb. 23, 2018). It appears from the record that the lower tribunal determined that Appellant, Florida Agency for Health Care Administration, is not entitled to sovereign immunity as a matter of law in this matter. AHCA appeals under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), which authorizes review of non-final orders determining "that, as a matter of law, a party is not entitled to immunity." As we explain below, however, we are constrained to dismiss the appeal because the order merely denies a motion and does not explicitly, on its face, determine that AHCA is not entitled to immunity. While AHCA may obtain an appealable order from the lower tribunal, if the lower tribunal determines that AHCA is not entitled to sovereign immunity as a matter of law, the tribunal should explicitly so rule on the face of its order. That is the only way to vest this Court with jurisdiction to afford AHCA the interlocutory review to which it is entitled under Rule 9.130(a)(3)(C)(xi). We again certify to the Florida Supreme Court the question of great public importance we certified in Jackson .

BACKGROUND

In 1991, Appellee Shirley McClain was sentenced to two years in prison with credit for time served and was ordered to pay $200 in "trust fund monies," following a violation of probation stemming from a 1988 felony conviction. In 1992, McClain was hired as a cook by a health care provider after her release from prison. In 1999, AHCA conducted a background check pursuant to chapter 435, Florida Statutes, and found nothing affecting McClain's eligibility. In 2012, AHCA conducted another background check, this time finding that McClain's 1988 conviction disqualified her from working at a licensed heath care provider. AHCA notified McClain and informed her that she could file an application for an exemption pursuant to section 435.07(1)(a), Florida Statutes. Upon receipt of McClain's application, AHCA notified her that she had "outstanding unpaid court sanctions" from her 1991 sentence. McClain paid this balance, but was then told that she was ineligible for an exemption, as she had only just completed the sanction imposed.

McClain's employer subsequently terminated her employment.

McClain filed a three-count complaint against AHCA alleging, inter alia , that the agency was negligent in characterizing the "trust fund monies" as a "sanction," resulting in her ineligibility for an exemption. AHCA filed a motion to dismiss, arguing in part that it was entitled to sovereign immunity from the action because, even if the monies were not classified as a sanction, McClain would not be entitled to the discretionary grant of an exemption. The order on this motion struck McClain's claims for punitive damages and reserved ruling with regard to Count III of the complaint, but otherwise denied the motion to dismiss Counts I and II without discussion. AHCA appeals pursuant to Rule 9.130(a)(3)(C)(xi), which permits appeals of non-final orders that determine "that, as a matter of law, a party is not entitled to sovereign immunity."

ANALYSIS

In pertinent part, the order appealed rules that "Defendants' Motion to Dismiss is denied with respect to Count I." This is not an appealable final judgment because it merely rules on a motion. See, e.g., Dedge v. Crosby , 914 So.2d 1055, 1056 (Fla. 1st DCA 2005) (holding an order ruling on a motion, but not taking final action, is not an appealable final order). To be subject to interlocutory review, the order must satisfy the requirements of Rule 9.130. "Generally, an appellate court may not review interlocutory orders unless the order falls within the ambit of non-final orders appealable to a district court as set forth in Florida Rule of Appellate Procedure 9.130." Keck v. Eminisor , 104 So.3d 359, 363-64 (Fla. 2012). For purposes of Rule 9.130(a)(3)(C)(xi), an order denies sovereign immunity "as a matter of law" only when the order "specifically states that, as a matter of law, such a defense is not available to a party." Jackson , 238 So.3d at 435 (quoting Hastings v. Demming , 694 So.2d 718, 720 (Fla. 1997) ). The denial of immunity must be made on the face of the order and must be explicit. Id. (quoting Reeves v. Fleetwood Homes of Fla., Inc. , 889 So.2d 812, 821 (Fla. 2004) ). See also Miami-Dade Cty. v. Pozos , 242 So.3d 1152, 2017 WL 621233 (Fla. 3d DCA Feb. 15, 2017) ; Eagle Arts Acad., Inc. v. Tri-City Elec. Co, Inc. , 211 So.3d 1083 (Fla. 3d DCA 2017) ; Taival v. Barrett , 204 So.3d 486 (Fla. 5th DCA 2016).

Applying these standards, the order under review is not appealable. The court wrote only that the "motion to dismiss is denied." The face of the order does not "explicitly" find that AHCA is not entitled to sovereign immunity. Accordingly, we do not have jurisdiction under Rule 9.130 to review this order.

AHCA argues that the trial court necessarily determined as a matter of law that it was not entitled to sovereign immunity, and that the order is therefore appealable. AHCA reaches this conclusion because, on a motion to dismiss, a trial court must treat the allegations of the complaint as true. Consequently, AHCA argues, the trial court could not have based its denial on the existence of a factual dispute, and necessarily denied the motion based on a conclusion that it was not entitled to sovereign immunity as a matter of law.

We rejected this same argument in Martin Electronics, Inc. v. Glombowski , 705 So.2d 26 (Fla. 1st DCA 1997). The appellant there argued that the Hastings rule applied only to orders denying summary judgment, and not to orders denying motions to dismiss, which were necessarily decided as a matter of law. We disagreed:

[I]f an order simply denying a motion for summary judgment cannot be a determination that a party is not entitled to workers' compensation immunity, then certainly an order which denies a motion to dismiss does not constitute such a determination. Clearly, the orders on appeal in these cases do not contain the specific language which is required by [ Hastings ].

Id. at 30. AHCA notes that the trial court in Glombowski had explained that it was "making no definitive determination of the issue of workers' compensation immunity," id. , but this fact makes no difference to the analysis. Because the court here did not explicitly indicate on the face of the order that it was denying sovereign immunity as a matter of law, the order is not appealable.

As we did in Jackson , we recognize that the Florida Supreme Court, in its most recent decision addressing the appealability of orders denying immunity, permitted interlocutory appellate review of an order denying immunity without any discussion of whether the order under review explicitly stated that the governmental entity was not entitled to sovereign immunity as a matter of law. Beach Cmty. Bank v. City of Freeport, 150 So.3d 1111 (Fla. 2014). The supreme court agreed with us that "the City's claim to sovereign immunity rested on a pure question of law." Id. at 1113. Beach Community Bank is particularly noteworthy here because it also involved an order denying a motion to dismiss rather than an order denying summary judgment.

CONCLUSION

Based on Beach Community Bank, "it is unclear if the Florida Supreme Court has departed from narrowly interpreting 'as a matter of law' to permit appellate review of orders denying sovereign immunity when the record demonstrates that the defendant is entitled to such immunity and was erroneously required to continue to defend itself." Jackson , 238 So.3d at 437. We dismiss the appeal and invite the lower tribunal to enter an amended order explicitly stating on its face that AHCA is not entitled to sovereign immunity, if that is the substance of the lower tribunal's determination. We certify the same question of great public importance to the Florida Supreme Court as we did in Jackson :

DOES RULE 9.130 PERMIT AN APPEAL OF A NON-FINAL ORDER DENYING IMMUNITY IF THE RECORD SHOWS THAT THE DEFENDANT IS ENTITLED TO IMMUNITY AS A MATTER OF LAW BUT THE TRIAL COURT DID NOT EXPLICITLY PRECLUDE IT AS A DEFENSE?

DISMISSED.

Ray and Kelsey, JJ., concur.

      In 2012, agencies were permitted to grant exemptions for felonies if at least three years had elapsed since the applicant "ha[d] completed or been lawfully released from confinement, supervision, or sanction for the disqualifying felony." § 435.07(1)(a), Fla. Stat. (2012).

      McClain also included Elizabeth Dudek, then-secretary of AHCA, as a defendant, in both her individual and official capacities. The complaint alleged negligence against AHCA and denial of due process against both AHCA and Dudek individually. This appeal relates only to the sovereign immunity claim and not to any claims of individual immunity regarding Dudek.

      Glombowski , like Hastings and Reeves , involved an order denying workers' compensation immunity. Such orders are appealable if they determine "as a matter of law" that the defendant is not entitled to immunity. Fla. R. App. P. 9.130(a)(3)(C)(v). The "as a matter of law" language appears identically in all of the subdivisions in Rule 9.130(a)(3)(C) involving orders denying immunity. Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x), & (xi). "As such, all of the subdivisions should be construed identically." Fla. Highway Patrol v. Jackson , 238 So.3d 430, 2018 WL 1023746 (Fla. 1st DCA Feb. 23, 2018). See also Pozos , 42 Fla. L. Weekly at D419, 242 So.3d at ----.

      AHCA argues that an order on a motion to dismiss necessarily cannot be based on a factual dispute because such a motion takes all facts alleged in the complaint to be true. See Wallace v. Dean , 3 So.3d 1035, 1042-43 (Fla. 2009). This observation is true when the motion to dismiss argues that the complaint fails to state a cause of action. Fla. R. Civ. P. 1.140(b)(6). But when, as here, the motion to dismiss is based on an affirmative defense, the defendant's entitlement to the affirmative defense may require the establishment of facts that are not contained in the complaint. See, e.g., Mancher v. Seminole Tribe of Fla., Inc. , 708 So.2d 327, 328-29 (Fla. 4th DCA 1998) (holding that defendant's sovereign-immunity argument is "not amenable to resolution by motion to dismiss because there are disputed factual questions"); see also Wildflower, LLC v. St. Johns River Water Mgmt. Dist. , 179 So.3d 369, 373 (Fla. 5th DCA 2015) (reversing dismissal based on res judicata and lack of standing as these defenses required factual proof); Chodorow v. Porto Vita, Ltd. , 954 So.2d 1240, 1242 (Fla. 3d DCA 2007) (rejecting dismissal based on limitations defense because the claim was "factually intensive"); Wishnatzki v. Coffman Constr., Inc. , 884 So.2d 282, 285 (Fla. 2d DCA 2004) (holding that dismissal is inappropriate if circumstances suggest plaintiff could have pled matters to avoid statute of limitations defense); Patterson v. McNeel , 704 So.2d 1070, 1072 (Fla. 2d DCA 1997) ("[A] motion to dismiss should not be granted on the basis of an affirmative defense ... unless that defense is established on the face of the pleadings."). An order denying such a motion is not necessarily ruling that the defendant is not entitled to the defense; the denial may be based on the lack of factual support for the defense.