text:
    Elizabeth U. BALDWIN, Individually and as a Member of Manor at Vero Beach, LLC, and Manor at Vero Beach, LLC, a Florida Limited Liability Corporation, Appellants, v. Paul R. WILLET, Individually and as a Member of Manor at Vero Beach, LLC, Appellee.
    No. 4D18-2263
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Aaron V. Johnson of Collins, Brown, Barkett, Garavaglia & Lawn, Chartered, Vero Beach, for appellants.
    George A. Glenn, Jr. of Law Offices of George A. Glenn, Vero Beach, for appellee.
   Forst, J.

Appellants Elizabeth Baldwin and Manor at Vero Beach, LLC challenge the order granting Appellee Paul R. Willet's motion for temporary injunction in the underlying action for a constructive trust. We reverse because the order is facially deficient-addressing only one prong of the four-part injunction test. Accordingly, we remand for the trial court to make specific factual findings on each prong of the test.

To obtain a temporary injunction, a movant must establish the following four-part test: (1) a substantial likelihood of success on the merits; (2) lack of an adequate remedy at law; (3) irreparable harm absent an entry of an injunction; and (4) that injunctive relief will serve the public interest. Dubner v. Ferraro , 242 So.3d 444, 447 (Fla. 4th DCA 2018) (citing Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc. , 51 So.3d 1191, 1195 (Fla. 4th DCA 2011) ).

Florida Rule of Civil Procedure 1.610(c) specifies the form and scope of injunctions, requiring that "[e]very injunction shall specify the reasons for entry, [and] shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document ...." The findings supporting the four-part test must be "clear, definite, and unequivocal." Net First Nat'l Bank v. First Telebanc Corp. , 834 So.2d 944, 949 (Fla. 4th DCA 2003) (quoting Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc. , 824 So.2d 226, 227 (Fla. 4th DCA 2002) ). This Court has consistently held that strict compliance with rule 1.610(c) is required. See Dubner , 242 So.3d at 447 ; Am. Learning Sys., Inc. v. Gomes , 199 So.3d 1076, 1082 (Fla. 4th DCA 2016) ; Eldon v. Perrin , 78 So.3d 737, 738 (Fla. 4th DCA 2012).

Here, the trial court made several factual findings, but the order does not state with clarity which factual findings support each of the prongs of the four-part test required to issue a temporary injunction. Willet concedes this point, but contends that he provided substantial evidence to the trial court regarding each prong in support of the temporary injunction. However, because strict compliance with rule 1.610(c) is required, we reverse and remand for the trial court to make clear, definite, and unequivocal factual findings on each prong of the four-part test in determining whether Willet is entitled to relief.

Reversed and Remanded for further proceedings consistent with this opinion .

May and Conner, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anthony HOSKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-2413
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    Anthony Hoskins, Bonifay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

After a fifth violation of probation, Appellant Anthony Hoskins was sentenced to 30 months in prison with 52 days of jail credit. Hoskins filed a Florida Rule of Criminal Procedure 3.801 motion seeking additional jail credit for time spent in jail following previous violations of probation. The trial court summarily denied the 3.801 motion. Its order failed to attach any documents refuting Hoskins' claim. As the State concedes on appeal, this was reversible error, requiring remand.

"Pursuant to Florida Rule of Criminal Procedure 3.801(e), which incorporates Florida Rule of Criminal Procedure rule 3.850(f), the circuit court was required to attach records which conclusively refuted the defendant's motion seeking additional jail credit." Williams v. State , 141 So.3d 686, 687 (Fla. 4th DCA 2014) ; Fla. R. Crim. P. 3.850(f)(5) ("If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.").

As noted above, the State concedes that the trial court's order does not comply with the Rule. Accordingly, we reverse and remand for an evidentiary hearing or for the attachment of records conclusively refuting Hoskins' claim for additional jail credit.

Reversed and remanded .

Gerber, C.J., Forst and Kuntz, JJ., concur.

      Hoskins' motion claims that he had previously been in jail multiple times for violations of probation, but had only been awarded jail credit for the last jail stay.


text:
    Raymond C. GLEASON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1175
    District Court of Appeal of Florida, Fourth District.
    [ December 12, 2018 ]
    Carey Haughwout, Public Defender, and Jessica A. DeVera, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Raymond Gleason appeals his convictions and sentences for burglary of a dwelling and dealing in stolen property. We affirm on all issues raised by appellant, except we reverse and remand for a nunc pro tunc competency hearing. As the State concedes, the trial court failed to hold a competency hearing and make an independent determination of competency before trial. See Silver v. State , 193 So.3d 991, 994 (Fla. 4th DCA 2016).

Affirmed in part, Reversed in part, and Remanded.

Taylor, Ciklin and Conner, JJ., concur.


author: LINDSEY, J. LUCK, J., dissenting.

text:
    CREDO LLC, Appellant, v. SPEYSIDE INVESTMENTS CORPORATION, Appellee.
    No. 3D17-0815
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    Law Offices of Paul Morris, P.A., and Paul Morris ; Roniel Rodriguez, IV, for appellant.
    Rothman and Tobin, P.A., Michael Rothman, and Ellen Patterson, for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
   LINDSEY, J.

A seller of real property appeals an order requiring $3.3 million paid by a buyer at the closing on a sale of real property, intended to satisfy a preexisting mortgage, to be deposited into the court registry pending litigation by the mortgage holder, initiated after the closing, over the payoff amount. We affirm for the reasons set forth below.

I. BACKGROUND

This case began in August of 2006, when Sally Sawh executed a promissory note in favor of Fairmont Funding, LTD, predecessor-in-interest to Wells Fargo Bank, N.A. ("Wells Fargo") in the original principal amount of $3,000,000.00. As security for the note, Ms. Sawh and Paolo Dellacassa executed a mortgage on a parcel of real property located at 4575 Sabal Palm Road in Miami, Florida (the "Property"). It is this property that is the subject of yet a second appeal to this Court.

In August of 2012, appellant seller, Credo, LLC ("Credo") obtained a Sheriff's Deed to the Property in exchange for the payment of $10.00 (ten dollars). In October of 2013, Wells Fargo, the plaintiff below, filed the instant action seeking to foreclose on the mortgage and/or enforce the note naming Ms. Sawh, Mr. Dellacassa and Credo, among others, as defendants herein. While the foreclosure was pending, Credo contracted to sell the Property to appellee buyer, Speyside Investments Corp. ("Speyside").

On February 26, 2014, just prior to the closing, Credo filed a motion to redeem the mortgage purportedly pursuant to section 45.0315, Florida Statutes, and set it for hearing on a five minute motion calendar on March 10, 2014. The trial court entered an order granting the motion to redeem ("the March 10 Redemption Order") and authorizing Credo to tender to Wells Fargo, on or before May 1, 2014, the total sum of $3,347,233.21 ("$3.3 million"). In exchange, the trial court directed that "[u]pon redemption, this Order shall constitute a satisfaction of said mortgage, extinguishing the mortgage of record."

With the March 10 Redemption Order in hand, Credo sold the Property to Speyside on April 30, 2014, for the sum of $6,150,000.00 ("$6.15 million"), some of which Speyside borrowed and some of which Speyside paid out-of-pocket. At closing, the $3.3 million identified in the March 10 Redemption Order was disbursed to Wells Fargo. Credo pocketed the net sum of $1,815,336.89 ("$1.8 million") as part of this transaction. A Warranty Deed from Credo in favor of Speyside was recorded on May 6, 2014.

While Wells Fargo accepted the $3.3 million Speyside tendered at the closing to pay off the mortgage, it did not release its lien or otherwise recognize and comply with the March 10 Redemption Order. Instead, three weeks later, while still in possession of the $3.3 million, Wells Fargo moved the trial court for reconsideration or, alternatively, to vacate the March 10 Redemption Order. Wells Fargo claimed that the amount was unliquidated and that the trial court should have held an evidentiary hearing before fixing the amount necessary to redeem the mortgage. The motion was accompanied by an affidavit from Wells Fargo alleging that the correct redemption amount was $4,624,169.03 ("$4.6 million"), or $1,276,935.82 ("$1.276 million") more than the amount that had been fixed by the trial court. The trial court denied the motion and entered an order dismissing the action below. Wells Fargo appealed both orders to this Court, which were consolidated in Wells Fargo Bank, N.A. v. Sawh (Credo I), 194 So.3d 475 (Fla. 3d DCA 2016).

In Credo I, this Court found in favor of Wells Fargo, stating that "the amounts due to Wells Fargo under section 45.0315 were not liquidated when the motion to redeem was filed, at the time that motion was heard, or at any subsequent time." 194 So.3d at 482-83. In so finding, this Court held that "because Wells Fargo's damages were not liquidated, the burden fell on Credo to have set an evidentiary hearing on its motion to redeem and to adduce evidence or to spread a stipulation on the record to prove the amounts that it was obligated to pay under section 45.0315 to redeem." Id. at 483.

Accordingly, we reversed the final order dismissing the foreclosure action, vacated the March 10 Redemption Order and remanded back to the trial court for an evidentiary hearing to determine the amount that must be paid to Wells Fargo to redeem, i.e., payoff, the mortgage. Id. This Court further stated "[i]n light of this determination, we order Wells Fargo to reimburse Credo any sums paid by it in compliance with the March 10 [Redemption Order]." Id. (emphasis added). On June 17, 2016, the mandate issued directing that such further proceedings in this cause take place.

Ten days later, Credo filed an emergency motion in the trial court for contempt for failure to comply with the mandate and for sanctions. Credo alleged it tendered the $3.3 million to Wells Fargo and that, pursuant to the mandate, Wells Fargo should be held in contempt of court for failing to return those funds to Credo.

Wells Fargo responded two days later with its own motion to enforce the mandate and for entry of an order permitting Wells Fargo to deposit the funds received in connection with the March 10 Redemption Order into the court registry, a law firm trust account or other escrow account. Wells Fargo alleged that the March 10 Redemption Order required Credo to pay an incorrect redemption amount, noted that Credo I does not address the sale of the Property by Credo to Speyside and asserted that the intent of this Court was to return the parties to the position they were in prior to the March 10 Redemption Order.

On July 19, 2016, the trial court entered an order granting Credo's motion to enforce the mandate, requiring Wells Fargo to choose either to accept the $3.3 million in full satisfaction of the Mortgage or to deliver the $3.3 million to Credo, in which event, Speyside would be entitled to intervene. Six days later, on July 25, 2016, Wells Fargo elected to deliver the $3.3 million to Credo. Speyside, having been granted leave to intervene, filed a motion to require the funds remitted to Credo by Wells Fargo on July 25, 2016 to be deposited into the court registry, essentially, seeking the same relief Wells Fargo had sought.

On April 4, 2017, the trial court held a hearing, noticed as evidentiary, on Speyside's motion. Treating Speyside's motion as seeking injunctive relief, the trial court entered an order requiring Speyside to post an $80,000.00 bond with the court within 72 hours, and ordering Credo to deposit the $3.3 million into the court registry within 72 hours from the posting of the bond by Speyside. The trial court specifically found:

(a) That counsel for SPEYSIDE appeared, along with a representative on behalf of SPEYSIDE, and SPEYSIDE's expert witness;
(b) That counsel for Plaintiff, WELLS FARGO BANK, N.A. appeared, without a representative from Plaintiff or any additional witnesses;
(c) That counsel for CREDO appeared, without a representative from Credo or any additional witness;
(d) That there is a substantial likelihood that the funds at issue, $3,347,233.21, will ultimately belong to Plaintiff than [sic] CREDO;
(e) That the failure to deposit the $3,347,233.21, previously remitted to CREDO, into the Court Registry would result in irreparable harm to SPEYSIDE if the funds are not safe kept, as the realty at issue in this foreclosure action, now owned by SPEYSIDE, remains encumbered by Plaintiff's mortgage.
(f) That the specific funds at issue were generated at closing upon SPEYSIDE's purchase from CREDO and were intended to be applied towards the payoff of Plaintiff's mortgage.
(g) That the threatened injury, i.e., the possibility that CREDO may not safeguard the $3,347,233.21 and it may otherwise be unavailable when the total redemption amount owed to Plaintiff is determined, highly outweighs the possible harm caused to CREDO; and
(h) That the issuance of temporary injunction is equitably justified. See Hullum v. Bre-lew Corp., 93 [So. 2d] 727 ( [Fla]. 1957) and Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (Fla. 1925).

The trial court based these findings on the following: "the arguments made by counsel for the parties, the case law presented to this Court, this Court's review of all relevant papers, pleadings and orders and its interpretation of the intent of the Third District Court of Appeal's Mandate, the proffer of testimony provided on behalf of SPEYSIDE and for all reasons stated on the record[.]" (Emphasis added). Further, the trial court specifically noted the equitable nature of the underlying action as an additional reason for requiring the funds to be deposited into the court registry. The very next day, Credo filed the instant appeal.

I. STANDARD OF REVIEW

A trial court is afforded broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court's decision. Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006) (citing Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995) ); Vargas v. Vargas, 771 So.2d 594, 595 (Fla. 3d DCA 2000). Our review is limited to whether the trial court's findings are supported by competent substantial evidence. See P & O Ports Fla., Inc. v. Cont'l Stevedoring & Terminals, Inc., 904 So.2d 507, 510 (Fla. 3d DCA 2005) (an appellate court's review of a trial court's findings on factual matters is limited to whether they are supported by competent substantial evidence).

If a legal principle is involved, the standard of review is de novo . City of Miami Beach v. Kuoni Destination Mgmt., 81 So.3d 530, 532 (Fla. 3d DCA 2012) (citation omitted); Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1258 (Fla. 2017) ("The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.") (citing Fla. High Sch. Athletic Ass'n v. Rosenberg, 117 So.3d 825, 826 (Fla. 4th DCA 2013) ).

II. ANALYSIS

A. Entitlement to Injunctive Relief

The situation before the trial court at the conclusion of the evidentiary hearing was: (1) Wells Fargo was holding a pending foreclosure action on its mortgage against the Property wherein it was alleging $4.6 million due and owing; (2) Credo had possession of, and unrestricted access to, the $3.3 million turned over to it by Wells Fargo plus the $1.8 million dollars it had pocketed at the closing on the Property - a property for which it had paid only ten dollars; (3) Credo had no further obligation with respect to the Property because it had sold its interest to Speyside and a warranty deed had been recorded; (4) Speyside was holding legal title to the Property, for which it had already paid $6.15 million, and against which Wells Fargo had a pending foreclosure with $4.6 million alleged to be due and owing; and, (5) Credo did not dispute that it had agreed at the closing on the sale of the Property, that $3.3 million of the $6.15 million Speyside paid to purchase this property was earmarked for disbursement to Wells Fargo to pay off its mortgage. It was against this backdrop that the trial court entered the order that is the subject of this appeal.

In order to be entitled to a temporary injunction, the moving party must plead and establish: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the movant outweighs any possible harm to the non-movant; and, (4) that the granting of a temporary injunction will not disserve the public interest. Reliance Wholesale, Inc. v. Godfrey, 51 So.3d 561, 564 (Fla. 3d DCA 2010) (quoting Cordis Corp. v. Prooslin, 482 So.2d 486, 489-90 (Fla. 3d DCA 1986) ).

On appeal Credo argues that injunctive relief does not lie where there exists an adequate remedy at law. While this is a correct statement of the law, it is not dispositive of this appeal. Speyside responds with the assertion that the $3.3 million paid to Wells Fargo at closing came, not from Credo, but from Speyside. As such, Speyside argues "this is not a case where Speyside is seeking to freeze accounts or assets of Credo, out of concern that it may not be able to collect the funds later." In reply, Credo argues it has a right to the $3.3 million because this Court, in Credo I, ordered Wells Fargo to refund that amount to Credo.

B. A likelihood of irreparable harm and the unavailability of an adequate remedy at law.

First, Credo's argument to the trial court, as well as in this appeal, is based on the flawed premise that this Court ordered Wells Fargo to pay $3.3 million to Credo in Credo I. We did not. The language of this Court's opinion in Credo I is clear and unambiguous. Therein, this Court ordered "Wells Fargo to reimburse Credo any sums paid by it in compliance with the [March 10 Redemption Order]." Credo I, 194 So.3d at 483 (emphasis added). Since no funds had been paid by Credo in compliance with the March 10 Redemption Order, there were no funds to which Credo was entitled to be reimbursed by Wells Fargo.

Nevertheless, Credo contends in this appeal that those funds once belonged to Credo and "once again became an unrestricted asset of Credo." However, Credo, in fact, explicitly represented to the trial court that Credo didn't "directly get the [$3.3 million], you have a settlement agent, someone that does the title, that takes the money and puts it in their trust account and then does the disbursement. So no, it [i.e., the $3.3 million] doesn't come directly from Credo."

Thus, the $3.3 million admittedly did not come from Credo prior to the closing. The $3.3 million came from Speyside and was given to Wells Fargo at the closing by the title agent. The $3.3 million was held by Wells Fargo at all times prior to the issuance of the mandate in Credo I and continued to be held by Wells Fargo up until just after the entry of the trial court's order forcing Wells Fargo either to accept the $3.3 million in full satisfaction of the Mortgage or to pay it to Credo.

Second, while Speyside could certainly sue Credo for return of the $3.3 million, Speyside shouldn't have to. The $3.3 million at issue herein does not belong to Credo and never has. It either belongs to Wells Fargo or Speyside. Since Speyside, not Credo, paid the $3.3 million to Wells Fargo at closing, it was error to interpret the language in Credo I to require Wells Fargo, as one of two options, to return Speyside's funds earmarked for the satisfaction of the mortgage to Credo. And, because at that time, Speyside had not been granted leave to intervene, it was unable to argue its opposition to such to the trial court.

Finally, the trial court further found that the issuance of a temporary injunction was equitably justified. The Florida Supreme Court noted the court's equity powers in foreclosure actions in Arsali v. Chase Home Finance LLC stating that:

Under Florida law, actions involving foreclosure of property are brought in courts of equity. The Florida Legislature recognized the need for equitable remedies in foreclosure actions and, thus, codified that foreclosure cases involving mortgages will be tried in equity courts. See § 702.01, Fla. Stat. (2010) (Equity) ("All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee. The foreclosure claim shall, if tried, be tried to the court without a jury.").

121 So.3d 511, 517 (Fla. 2013) (first internal citation omitted).

Moreover, "[u]nder Florida law, 'an equitable lien is a right, not recognized by law, to have a fund ... applied in whole or in part to the payment of particular debt.' "

Gendler v. Related Grp., 2009 WL 10668980, at *5, 2009 U.S. Dist. LEXIS 139040, at *16 (S.D. Fla. Sept. 14, 2009) (quoting Hullum, 93 So.3d at 730 (also cited by the trial court) ). Further, "an equitable lien can be imposed if ... a court declares that the equitable lien is necessary out of general considerations of justice." Id. at *5, 2009 U.S. Dist. LEXIS 139040, at *16-17 (quoting In re Dorado Marine, Inc., 321 B.R. 581, 588 (M.D. Fla. 2005) (citing Jones, 90 Fla. 407, 106 So. 127 (also cited by the trial court) ).

Florida courts have entered injunctions to protect the res of a trust implied by operation of law. See e.g., TJ Mgmt. Group, L.L.C. v. Zidon, 990 So.2d 623, 625 (Fla. 3d DCA 2008) (holding that "an order freezing funds held in a bank account for further determination on the ownership rights to those funds is in the nature of an injunction properly entered"); Ga. Banking Co. v. GMC Lending & Mortg. Servs. Corp., 923 So.2d 1224 (Fla. 3d DCA 2006) (finding injunctive relief appropriate to prevent dissipation of specific, identifiable funds that had been collected on behalf of the lender and were being held in trust for the bank); Vargas, 771 So.2d at 595-96 (affirming the issuance of an injunction in a breach of fiduciary duty and conversion action where the plaintiffs "have shown a common ownership of the bearer shares, as well as the $4.4 million in bank accounts, and that a lifting of the injunction would expose those assets to conversion or dissipation by a third party over which the [plaintiffs] have no control" and the corpus of any possible constructive trust would no longer be available if the assets are taken outside the court's jurisdiction"); Castillo v. Vlaminck De Castillo, 701 So.2d 1198, 1199 (Fla. 3d DCA 1997) (affirming the injunctive order where the mother sought imposition of a constructive trust on an account that her son established by improperly employing the proceeds of her $200,000.00 check made payable to him, allegedly on the understanding that he would purchase a certificate of deposit in the names of her and all her surviving children); Pendergraft v. C.H., 225 So.3d 420, 421 (Fla. 5th DCA 2017) (citing Zidon, 990 So.2d 623 ) ("An order freezing assets for further determination of the ownership right to those assets is in the nature of an injunction.").

Speyside correctly points out that this is not a case where a party seeks to enjoin funds that rightfully belong to an opposing party in litigation out of fear that it may not be able to later collect on any judgment it may be awarded. Aside from the fact that the $3.3 million never rightfully belonged to Credo, at the time of the closing, the $3.3 million was clearly identifiable, was not commingled with other assets and was intended for the specific purpose of paying off Wells Fargo's mortgage on the Property. Thus, the trial court's injunction order, requiring Credo to deposit the $3.3 million into the court registry pending further determination as to the ownership rights to those funds, was properly entered.

After careful review, we are not persuaded by the arguments put forward by the dissent. We agree with the law cited by the dissent. We simply do not find it applicable to the somewhat unique facts of this case. First, the dissent places great emphasis on Speyside's purported failure to appeal the trial court's erroneous July 19, 2016 order which gave Credo the funds escrowed by Speyside. The dissent argues that "Speyside has not appealed that order. Speyside cannot collaterally attack that non-appealed order in this separate appeal to the injunction order." The argument misapprehends the record. Speyside could not have appealed that order: Speyside was not a party when that order was entered.

Speyside was not granted leave to intervene until August 5, 2016, which was well after the trial court had entered the July 19, 2016. The case cited by the dissent, Marine Midland Bank Cent. v. Cote, 384 So.2d 658, 659 (Fla. 5th DCA 1980), involved a bank and an individual who were parties to the litigation at the time the non-appealed order was entered. The rule of Marine Midland regarding a party's failure to appeal an order simply does not extend to a non-party like Speyside who could not have appealed the order.

Second, the dissent places particular reliance on its understanding that "the lawsuit between Speyside and Credo is not a foreclosure suit." We respectfully disagree with this characterization. The dispute between Speyside and Credo is inextricably part of the foreclosure. Our prior opinion in Credo I, which gives rise to this dispute, was entirely based on applying foreclosure law in the pending foreclosure. In that foreclosure action, Speyside paid the money at issue into escrow to exercise Credo's right to redeem. The trial court order under review characterized the matter as involving a "foreclosure action:" it found the failure to deposit the funds escrowed by Speyside "into the Court Registry would result in irreparable harm to SPEYSIDE if the funds are not kept safe, as the realty at issue in this foreclosure action, now owned by SPEYSIDE, remains encumbered by Plaintiff's mortgage. " (Emphasis added).

Because this case does indeed involve a foreclosure action, the case cited by the dissent, Sammie Investments, LLC v. Strategica Capital Assocs., Inc., 247 So.3d 596, 2018 WL 2122792 (Fla. 3d DCA 2018), is inapposite. Sammie Investments involved a garden variety business dispute with claims for breach of contract, misrepresentation and unjust enrichment: it did not involve a dispute over possession of funds escrowed during a foreclosure action like the case before us.

III. CONCLUSION

Because the $3.3 million which the trial court ordered to be deposited into the court registry never belonged to Credo, because Credo does not now have, and has not ever had, any legal claim to those funds, and because it would be inequitable to allow Credo unrestricted access to $3.3 million that belongs either to Speyside or to Wells Fargo during the pendency of the underlying litigation, we affirm.

Affirmed.

LOGUE, J., concurs.

LUCK, J., dissenting.

Speyside Investments Corporation sued Credo LLC for breach of title warranties and unjust enrichment related to the sale of real property in Miami-Dade County. In a nutshell, Speyside alleged that Credo misrepresented that the title to the property it sold would be free and clear of a preexisting mortgage. Speyside moved to enjoin Credo by requiring that a portion of the money Speyside paid for the sale of the property be paid into the court registry. The trial court granted the motion, and the majority opinion affirms. I dissent because Speyside has not shown, as a matter of law, that it met the requirements for an injunction - irreparable harm and no adequate remedy at law.

I would normally spend the next few paragraphs explaining that a preliminary injunction ordering the deposit of the money at issue in a damages case (like this one) is unlawful, but that is unnecessary because a few months ago the court issued an opinion explaining the rule and going through the case law better than I ever could. Please excuse the lengthy block quote but given how recent and thorough our opinion was, it is worth it:

Strategica has failed to meet its burden of proving that it will incur irreparable harm because it has no adequate remedy at law.

As defined by this Court, "irreparable injury is injury that cannot be cured by money damages." Lutsky v. Schoenwetter, 172 So.3d 534, 534 (Fla. 3d DCA 2015) (citing Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1092 (Fla. 3d DCA 2014) ). And, "[t]he test for unavailability of an adequate remedy at law, under these requirements, is 'whether a judgment can be obtained, not whether, once obtained, it will be collectible.' " Lopez-Ortiz v. Centrust Sav. Bank, 546 So.2d 1126, 1127 (Fla. 3d DCA 1989) (citations omitted).

Here, even if Strategica is ultimately successful in establishing entitlement to the $75,000 purported loan or to twenty percent of Sammie's profits from the sale of the 9 Mile property, it will only be entitled to an award of money damages. Strategica, therefore, has an adequate remedy at law to recover the disputed funds. Accordingly, because the injury Strategica is attempting to prevent is purely monetary and can be cured by money damages, Strategica will not suffer irreparable harm.

As this Court stated in Konover Realty Associates, Ltd. v. Mladen:

It is entirely settled by a long and unbroken line of Florida cases that in an action at law for money damages, there is simply no judicial authority for an order requiring the deposit of the amount in controversy into the registry of the court, or indeed for any restraint upon the use of a defendant's unrestricted assets prior to the entry of judgment. The rule has been specifically applied, as on general principles it must be, to an action like this one for the recovery of unsegregated earnest money, and is unequivocally not affected by the claim that recovery upon any subsequently-entered judgment may be made difficult by the dissipation or unreachability of the debtor's assets.

511 So.2d 705, 706 (Fla. 3d DCA 1987) (internal citations omitted); see also Leight v. Berkman, 483 So.2d 476, 477 (Fla. 3d DCA 1986) (citations omitted) ("The law is unequivocally established that an injunction against the disposition of a defendant's assets simply may not be granted upon the ground that their preservation is required to satisfy a subsequent money judgment."); De Leon v. Aerochago, S.A., 593 So.2d 558, 559 (Fla. 3d DCA 1992) ("Injunctive relief may not be used to enforce money damages, or to prevent any party from disposing of assets until an action at law for an alleged debt can be concluded." quoting Hiles v. Auto Bahn Federation, Inc., 498 So.2d 997, 998 (Fla. 4th DCA 1986) ).

V. CONCLUSION

Because Strategica has suffered no irreparable injury that cannot be cured by money damages and an adequate remedy at law is available, we reverse the trial court's order granting Strategica's motion for temporary injunctive relief and remand for further proceedings consistent with this opinion.

Sammie Investments, LLC v. Strategica Capital Assocs., Inc., No. 3D17-2052, 2018 WL 2122792, at *3 (Fla. 3d DCA 2018). I wasn't on the Sammie Investments panel, but I fully concur.

Here, the trial court's finding of irreparable harm is the same as the one the Sammie Investments court found to be legally insufficient. Our trial court found that "the threatened injury, i.e., the possibility that CREDO may not safeguard [the money] and it may otherwise be unavailable when the total redemption amount owed to Plaintiff is determined, highly outweighs the possible harm caused to CREDO." The Sammie Investments trial court found that "if Sammie does not 'have any other assets based on the only testimony provided, then there would be irreparable harm because there would be nowhere else from where to gain that money.' " 2018 WL 2122792, at *2. As we have explained, "[t]he test for unavailability of an adequate remedy at law, under these requirements, is 'whether a judgment can be obtained, not whether, once obtained, it will be collectible.' " Lopez-Ortiz, 546 So.2d at 1127.

But despite this long and unbroken line of Florida cases, the majority opinion gives four reasons for why the injunction was lawful here: (1) we did not order in the prior appeal that the money be returned to Credo; (2) the money "does not belong to Credo and never has"; (3) the injunction was "equitably justified" as part of the trial court's "equity powers in foreclosure actions"; and (4) "Florida courts have entered injunctions to protect the res of a trust implied by operation of law." None of these reasons support an exception to the general rule.

Reasons 1 and 2. We did not order the money returned and the money does not belong to Credo. First, the majority opinion says that Credo is not entitled to the money because our earlier opinion in Credo I did not order the money returned to the company. Regardless of whether this court did or did not order the money returned to Credo in the prior appeal, the trial court ordered the money returned to Credo, and Speyside has not appealed that order. Speyside cannot collaterally attack that non-appealed order in this separate appeal of the injunction order. See Marine Midland Bank Cent. v. Cote, 384 So.2d 658, 659 (Fla. 5th DCA 1980) ("The parties have the right to appeal any matter by which they may be aggrieved and their failure to do so acts as an acceptance of the propriety of the matter."). Given that, Credo cannot improperly have money that the trial court ordered it have. Based on the trial court's unappealed order, the money was properly in Credo's bank account.

In any event, the fact that Credo may not be entitled to the money goes to the likelihood of Speyside's success on the merits of its breach of title warranties and unjust enrichment claims, but that is separate and apart from whether Speyside would be irreparably harmed and had an adequate remedy at law. Look at Sammie Investments. There, too, the defendant had the plaintiff's money it wasn't entitled to have. Still, we determined the plaintiff "ha[d] an adequate remedy at law to recover the disputed funds." Sammie Investments, 247 So.3d at 600, 2018 WL 2122792, at *3. Likewise, in this case, just because Credo should never have had the money, doesn't mean that Speyside can't recover the money at the end of the lawsuit.

The majority opinion suggests that the facts of this case are "somewhat unique," but they aren't. Every day, dozens of plaintiffs file breach of contract and unjust enrichment complaints in the circuit courts of this state alleging that they were ripped off by another's false promises and trickery. But just because the defendant's scheme to make away with the plaintiff's money was different here than it was in Sammie Investments, or Konover Realty, or Lopez-Ortiz, doesn't mean the trial court can do an injunctive end-run around the requirement that there be no adequate remedy at law and give relief to the plaintiff without discovery or trial. No two cases are alike, and each variation on the age-old bait-and-switch scheme does not change three decades of precedent.

Reason 3. The injunction was equitably justified under the trial court's equity powers in foreclosure. The majority opinion reasons that because the case between Speyside and Credo "involve[s] a foreclosure action," and foreclosure is an equitable remedy, then the temporary injunction was "equitably justified." There are two problems with this reasoning.

First, the dispute between Speyside and Credo was not a foreclosure action. Speyside intervened for the purpose of filing a counterclaim against Credo for breach of the title warranties and unjust enrichment seeking return of the money paid for the property. Speyside's counterclaim against Credo did not seek to foreclose on the property, and Speyside cannot seek relief it did not request.

Second, even if this was a foreclosure action, the trial court's "equity powers in foreclosure actions" do not extend so far as to grant a preliminary injunction without meeting the necessary requirements (like irreparable harm and no adequate remedy at law). I know of no case, and the majority opinion does not cite any, that allows the trial court to grant a Florida Rule of Civil Procedure 1.610 preliminary injunction in a foreclosure case without the movant having to prove she was irreparably harmed or did not have an adequate remedy at law. The cases cited by the majority opinion deal with equitable liens but Speyside did not plead an equitable lien claim and, even if it did, an equitable lien is not available where there's an adequate remedy. See Johns v. Gillian, 134 Fla. 575, 184 So. 140, 145 (1938) ("But there is no such lien where the expenditures are made with knowledge of the real state of the title; nor will such a lien arise where there is an adequate remedy at law." (quotation omitted) ). Speyside has an adequate remedy at law - this breach of title warranties lawsuit against Credo.

Reason 4. The Florida courts have entered injunctions to protect the res of a trust. Speyside has not pled a claim for constructive or resulting trust that would trigger this exception to the irreparable harm requirement. Again, Speyside's claims were for breach of title warranties and unjust enrichment. The court - this one and the trial court - cannot grant relief where it has not been pled. See Brickell Station Towers, Inc. v. JDC (Am.) Corp., 549 So.2d 203, 203 (Fla. 3d DCA 1989) ("We hold that the trial court decided matters which were not the subject of appropriate pleadings. In granting relief which was neither requested by appropriate pleadings, nor tried by consent, the trial court entered the order in violation of BST's due process rights."); see also Nabinger v. Nabinger, 82 So.3d 1075, 1076 (Fla. 1st DCA 2011) ("In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings."); Bilow v. Benoit, 519 So.2d 1114, 1117 (Fla. 1st DCA 1988) ("The trial court erred in granting judgment for appellee on the unpled defense of forfeiture, for a judgment based upon an issue outside the pleadings cannot stand."). Because Speyside did not plead a constructive or resulting trust, the trial court could not grant an injunction on that basis.

* * *

The majority opinion strays from the entirely settled principle, reaffirmed only a few months ago, that in an action at law for money damages there is no judicial authority for an order requiring the deposit of the amount in controversy into the registry of the court. I would not break this unbroken line of Florida cases.

      In this motion, Credo makes reference to the language contained in Credo I three times. Therein, Credo incorrectly cites this Court's language in Credo I as ordering Wells Fargo "to reimburse Credo any sums paid in compliance with the March 10 [Redemption Order]." In fact, the actual language ordered Wells Fargo "to reimburse Credo any sums paid by it in compliance with the March 10 [Redemption Order]." See Credo I, 194 So.3d at 483 (emphasis added).

      In this motion, Wells Fargo correctly cites the same language from the Credo I opinion that Credo incorrectly cited in its motion to enforce the mandate.

      Speyside was not a party to the Credo I appeal.

      At the time of entry of this order, Speyside had filed a motion seeking to intervene in the foreclosure case which was pending. After Wells Fargo elected to tender the $3.3 million to Credo, the trial court entered an order on August 5, 2016, granting Speyside's motion to intervene.

      There is no written response by Credo to this motion contained within the record on appeal. In addition, on July 28, 2016, Speyside filed a crossclaim against Credo for breach of warranties of title and unjust enrichment, and a counterclaim against Wells Fargo. In its crossclaim, Speyside alleged not only that Credo breached its warranty of title but that it has been unjustly enriched by wrongfully retaining the $3.3 million, which was intended to, but did not, satisfy Wells Fargo's mortgage. In addition, because Credo had pocketed $1.8 million from its sale of the Property to Speyside, Speyside alleged Credo has been unjustly enriched over and above the $3.3 million earmarked to pay off the mortgage by any additional amount Speyside may be required to pay pursuant the mandate in Credo I.

      Neither Credo nor Wells Fargo brought any witnesses to the hearing and neither requested to cross-examine Speyside's witnesses.

      We write only to address the first element necessary for entitlement to injunctive relief and affirm, without discussion, as to the remaining three.

      See Reply Brief of Appellant at 2-4, Credo LLC v. Speyside Invs. Corp., No. 3D17-815, 2017 WL 4871042 (Fla. 3d DCA Sept. 28, 2017).

      The majority opinion explains that Speyside did not appeal the order returning the redemption money to Credo because Speyside hadn't yet been allowed to intervene. But once Speyside was allowed to intervene, it still did not appeal the order returning the money; it did not seek to vacate the order; and it did not seek reconsideration. Speyside never challenged before the trial court the order returning the money to Credo, and it cannot do so for the first time on appeal.

      The majority opinion cites the earlier appeal as evidence that this case involves a foreclosure action, but the earlier appeal was between Wells Fargo and Credo. Speyside was not a party to the first appeal, and wasn't even a party in the underlying case when the first appeal was filed and decided. After the first appeal was decided, Speyside intervened and filed its counterclaims for breach of title warranties and unjust enrichment against Credo, followed by the motion for injunctive relief.

      The "equity powers" case cited by the majority opinion, Arsali v. Chase Home Finance LLC, 121 So. 3d 511 (Fla. 2003), did not involve an injunction. (Arsali was about objections to a foreclosure sale.) Likewise, the two cases cited by the trial court in support of its equitable justification, Hullum v. Bre-lew Corp., 93 So. 2d 727 (Fla. 1957) and Jones v. Carpenter, 106 So. 127 (Fla. 1925), did not involve injunctions. (They reversed motions to dismiss equitable lien claims.)

      In the cases relied on by the majority opinion explaining the res exception, unlike here, the party seeking an injunction pled constructive trust. See, e.g., Vargas v. Vargas, 771 So. 2d 594, 596 (Fla. 3d DCA 2000) ("If the assets are taken outside the court's jurisdiction, the corpus of any possible constructive trust would no longer be available, thereby rendering such equitable relief unattainable should the sisters ultimately prevail on their complaint."); Castillo v. Vlaminck de Castillo, 701 So. 2d 1198, 1199 (Fla. 3d DCA 1997) ("Because the appellee sought, among other things, the imposition of a constructive trust on the account, the injunctive order is affirmed." (citation omitted)). TJ Mgmt. Group, LLC v. Zidon, 990 So. 2d 623 (Fla. 3d DCA 2008) is unhelpful because the enjoined party did not appeal the trial court's finding that the elements for an injunction had been met, so we don't know whether the enjoined party may have been successful in challenging the injunction. See id. at 626 ("The problem with TJ Management's argument is that it did not appeal the Interim Order, but instead chose to file a Motion to Dissolve the Interim Order and failed to raise that issue as one of the grounds for dissolution.").


author: PER CURIAM.

text:
    Susan PRIEST, Appellant, v. Summer L. VELISEK, Appellee.
    Case No. 5D17-2059
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 26, 2018 Rehearing Denied November 29, 2018
    Maureen Monaghan Matheson, of Satellite Beach, and Robert M. Moletteire, Melbourne, for Appellant.
    Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Appellee.
    John C. Hamilton, Law Office of John C. Hamilton of Tampa, P.A., San Antonio, Amicus Curiae, for the Non-Party Expert, Michael J. Foley, M.D., in support of Appellee.
   PER CURIAM.

Appellant, Susan Priest, appeals an order granting Appellee's, Summer L. Velisek, motion for a new trial in the underlying negligence action. The trial court based the order granting a new trial on a combination of two issues: Appellant's cross-examination of Appellee's expert witness about his financial bias (where the expert was asked if he previously testified to earning two million dollars annually from all defendants) and Appellee's unsolicited and unexpected mentioning of "insurance" while she testified during Appellant's case-in-chief. The court found it erred in allowing the cross-examination of Appellee's expert and that Appellee's mention of insurance was prejudicial. Appellant argues that neither ground supports the grant of a new trial. We agree.

In granting a new trial, the trial court ruled that Florida Rule of Civil Procedure 1.280 prohibited Appellant's counsel from questioning Appellee's expert concerning his total annual income from all defendants, and that it should have applied this rule to bar any inquiry into the expert's total annual income on cross-examination. However, rule 1.280 is a rule pertaining to discovery-not evidence. Therefore, we find that the trial court erroneously relied upon this procedural rule in granting a new trial in Appellee's favor.

Likewise, the trial court erred when it granted a new trial based upon Appellee's own unexpected and unsolicited statement in front of the jury regarding her insurance. We find this argument lacks merit because at a minimum, any error was expressly waived by Appellee's counsel.

Therefore, we reverse the trial court's order granting a new trial and remand with instructions to reinstate the jury verdict and judgment.

REVERSED and REMANDED with INSTRUCTIONS.

EVANDER and EISNAUGLE, JJ., and ROGERS, S.G., Associate Judge, concur.

      We do not reach any other arguments regarding the propriety of questioning an expert in this fashion as this is the only argument preserved below and properly before us on appeal.

      As a result of the explicit waiver found in the record, we need not decide if Appellee's own statement is invited error.


author: LaROSE, Chief Judge.

text:
    Alonso Kaosayan HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1875
    District Court of Appeal of Florida, Second District.
    Opinion filed November 9, 2018
    Alonso Hernandez, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Respondent.
   LaROSE, Chief Judge.

Alonso Kaosayan Hernandez filed a petition under Florida Rule of Appellate Procedure 9.141(d) asserting four grounds of ineffective assistance of appellate counsel. We grant as to grounds one and four and deny as to grounds two and three.

Mr. Hernandez entered a negotiated no contest plea to burglary of a dwelling or structure with over $1000 in damage and grand theft, $20,000 or more, in case numbers 2010-CF-421 and 2010-CF-427, and to grand theft in case number 2011-CF-909. Because he was later found incompetent to proceed, his sentencing hearing was put off until he regained competency, about two years later. Counsel for Mr. Hernandez at sentencing was not the attorney who negotiated the plea deal. Counsel advised the trial court that Mr. Hernandez had instructed him to renegotiate the plea deal because he did not understand the plea colloquy and proceedings before the prior judge, Judge Cowden. However, the State declined to renegotiate.

Counsel said that he did not think there was a good faith basis for a motion to withdraw plea and believed that the plea was very thought out and complete. He asserted that Judge Cowden would have stopped the proceedings if there had been an issue with Mr. Hernandez's understanding of what was taking place during the plea colloquy. Counsel never formally moved to withdraw Mr. Hernandez's plea, and there was no ruling by the trial court. The trial court did not ask Mr. Hernandez if he wanted to withdraw his plea; it heard arguments regarding the appropriate sentence to impose. The trial court then sentenced Mr. Hernandez to a total of fifteen years' imprisonment followed by fifteen years' probation.

The State concedes that appellate counsel was ineffective for failing to argue on appeal that once trial counsel took a position adverse to Mr. Hernandez's obvious desire to withdraw his plea, the trial court should have either permitted counsel to withdraw or discharged counsel and appointed conflict-free counsel for this critical stage of the proceedings. See Jones v. State, 74 So.3d 118, 120-21 (Fla. 1st DCA 2011) (holding that the relationship between the defendant and defense counsel became adversarial once counsel stated that he did not believe the defendant had a sufficient basis for withdrawing his plea and that the trial court should have either permitted counsel to withdraw or discharged counsel and appointed conflict-free counsel to represent the defendant because a motion to withdraw plea is a critical stage of the proceedings); see also Benjamin v. State, 230 So.3d 953, 955 (Fla. 2d DCA 2017) (reversing and remanding for the trial court to conduct a hearing on Benjamin's motion to withdraw plea because the trial court failed to inquire into the potential for conflict when counsel said that Benjamin had buyer's remorse and because the trial court failed to inquire into whether Benjamin's complaint that he was not provided with discovery would support his desire to withdraw his plea).

By accepting trial counsel's argument that there was no basis for Mr. Hernandez to withdraw his plea and proceeding to sentencing, the trial court deprived Mr. Hernandez of his right to be heard on his desire to withdraw his plea and of his right to the effective assistance of counsel during a critical stage of the proceedings. Consequently, appellate counsel's failure to raise this issue on appeal undermines confidence in the outcome of Mr. Hernandez's appeal. See Downs v. Moore, 801 So.2d 906, 909-10 (Fla. 2001). Accordingly, we grant ground one of Mr. Hernandez's petition. Because a new appeal would be redundant, we reverse Mr. Hernandez's sentences and remand for the trial court to appoint conflict-free counsel to file a motion to withdraw plea should Mr. Hernandez still desire to do so.

In ground four of his petition, Mr. Hernandez argues that appellate counsel was ineffective for failing to file a motion to correct sentencing error under Florida Rule of Criminal Procedure rule 3.800(b)(2) and preserve the issue of his improper designation as a violent felony offender of special concern (VFOSC). See Fla. R. App. P. 9.140(b)(2)(A)(ii)(d) (providing that a defendant who enters a plea may appeal a preserved sentencing error). Although the plea agreement called for designation as a VFOSC, he argues that the designation was improper because he was not on probation or community control at the time of the burglaries and his only prior offense was not a qualifying offense. Cf. Tucker v. State, 864 So.2d 580, 581 (Fla. 2d DCA 2004) (holding that Tucker could not stipulate as part of a negotiated plea agreement to being sentenced as a habitual offender when the underlying substantive offenses necessary for such sentencing did not exist). Mr. Hernandez is correct; the VFOSC statute, by its very terms, applies to a person who is on probation. See § 948.06(8), Fla. Stat. (2012).

We reject the State's argument that Mr. Hernandez may be designated a VFOSC because he will qualify as such when he begins his probationary term for the qualifying offense of first-degree burglary. The State misreads the very terms of section 948.06(8). Case law suggests that the State may seek the VFOSC designation if and when Mr. Hernandez violates his probation. See, e.g., Bailey v. State, 136 So.3d 617, 618, 620-21 (Fla. 2d DCA 2013) (striking VFOSC designation and remanding for further proceedings because the trial court, at sentencing following the revocation of Bailey's probation, designated Bailey a VFOSC without making the statutorily-required written findings that he qualified as such); Whittaker v. State, 223 So.3d 270, 272, 276 (Fla. 4th DCA 2017) (reversing Whittaker's sentence designating him a VFOSC upon revocation of his probation and remanding for another sentencing hearing and for the trial court to make the statutorily-required written findings to support the VFOSC designation); Barber v. State, 207 So.3d 379, 382, 384 (Fla. 5th DCA 2016) (reversing Barber's sentence finding him to be a VFOSC upon the third revocation of his probation and remanding for another sentencing hearing and for the trial court to make the statutorily-required written findings to support the VFOSC designation).

For the reasons stated, we reverse Mr. Hernandez's sentences and remand for the trial court to appoint conflict-free counsel to assist Mr. Hernandez with his motion to withdraw plea, should he choose to file a written motion. If Mr. Hernandez does not withdraw his plea, the trial court must strike the VFOSC designation and the State may seek the designation if Mr. Hernandez violates probation.

Petition granted, in part; denied, in part; sentence reversed; remanded for further proceedings.

NORTHCUTT and KHOUZAM, JJ., concur.

      Florida Rule of Criminal Procedure 3.170(f) provides that a trial court "may in its discretion, and shall on good cause, at any time before a sentence," permit the withdrawal of a guilty or no contest plea. Mr. Hernandez and the State assert that trial counsel need only have asked the trial court to exercise its discretion to permit Mr. Hernandez to withdraw his plea.

      We note that while counsel gave no indication that Mr. Hernandez's improper designation as a VFOSC was a basis for his desire to withdraw his plea, it certainly could have been.


text:
    Phillip S. GEORGE, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2166
    District Court of Appeal of Florida, First District.
    October 26, 2018 Rehearing Denied January 3, 2019
    Phillip S. George, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

B.L. Thomas, C.J., and Kelsey and Winokur, JJ., concur.


author: VILLANTI, Judge.

text:
    R.B., Appellant, v. B.T., Appellee.
    Case No. 2D17-2587
    District Court of Appeal of Florida, Second District.
    Opinion filed November 9, 2018
    Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellant.
    Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellee.
   VILLANTI, Judge.

In this paternity action, R.B. (the Father) appeals several aspects of the final judgment of paternity and related relief, which adjudicated various disputes between the Father and B.T. (the Mother) relating to time-sharing and child support. While the Father claims to have identified seven alleged deficiencies in the final judgment, we conclude that only one of the identified issues has merit. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

The Mother and Father were involved in an on-again, off-again relationship for five years before the Mother became pregnant. During that time, both parties were living in Austin, Texas. However, shortly before the child was born, the Mother relocated to St. Petersburg, Florida, where she had family. As a result, the child was born in Florida and has lived in Florida ever since.

The relationship between the parties was volatile even before the birth of their child in June 2015, and to say that their relationship has been acrimonious since that time is an understatement. It appears from the record that neither party is able or willing to put aside their ill feelings for each other or to otherwise act in the best interests of the child. Due to these ongoing disputes, the Mother filed an action seeking a determination of paternity, an award of child support, and a time-sharing schedule. The Father did not dispute paternity, and the case proceeded to a hearing solely on the issues of time-sharing and child support. The final judgment adjudicated these issues, but not in the way the Father requested. He therefore brought this timely appeal.

In his brief, the Father raised numerous issues dealing with the sufficiency of the evidence to support the final judgment and the validity of the trial court's findings. We reject all of his arguments except one. To the extent that the Father contends that the trial court abused its discretion by limiting his weekend time-sharing to either St. Petersburg or Austin, we agree that he is entitled to relief. Therefore, on this single basis, we reverse and remand for further proceedings as explained below.

The time-sharing schedule incorporated into the final judgment specifically states that the Mother resides in St. Petersburg and the Father resides in Austin. The schedule provides that as long as the parents live more than fifty miles apart and before the child turns five years old, the Father will have time-sharing one weekend a month and all time-sharing shall occur in Florida. Once the child turns five, the Father will have time-sharing two weekends per month, with one weekend occurring in St. Petersburg and the other occurring in either St. Petersburg or Austin at the Father's option. Holiday and summer time-sharing can occur in either the state of Florida or the state of Texas. The Father contends that the geographic limitations on his time-sharing constitute an abuse of discretion.

"While a trial court has broad discretion to restrict visitation when necessary to protect the welfare of the children, restrictions on visitation should be supported by some evidence in the record showing that they are necessary." Coyne v. Coyne, 895 So.2d 469, 473 (Fla. 2d DCA 2005). Thus, when there was no evidence to show that the father, a Canadian citizen, could not travel in and out of the United States, this court held that the trial court abused its discretion by restricting the father's time-sharing with his children to Canada. Id. Similarly, in Mahaffey v. Mahaffey, 614 So.2d 649, 651 (Fla. 2d DCA 1993), this court reversed a provision restricting time-sharing to either the daughter's residence in Louisville or the father's family home in Alabama when there was no evidence in the record to support limiting time-sharing to either Kentucky or Alabama. See also Goodman v. Goodman, 571 So.2d 23, 23-24 (Fla. 2d DCA 1990) (holding that it was an abuse of discretion to limit the father's time-sharing with his oldest child to the mother's state of residence when there was no evidence to support such a restriction).

Here, the final judgment contains no factual findings that establish the necessity of restricting the Father's time-sharing with his child to either St. Petersburg or Austin, nor could it as no evidence was presented on this issue at the hearing. This is particularly true for time-sharing after the child reaches the age of five, when the schedule specifically contemplates some travel for the child. And while this correction may appear minor, because the parties have a long history of focusing on personal animosity, the potential for either of them to attempt to capitalize on the restricted locations of the Father's time-sharing must be corrected to avoid unnecessary litigation. Therefore, we reverse this provision of the final judgment and remand to the trial court for further proceedings on this issue. Given the length of time since the original hearing, the trial court may need to take further evidence on the issue of the propriety of any geographic limitations on time-sharing based on the parties' current residences.

Affirmed in part, reversed in part, and remanded for further proceedings.

KELLY and BLACK, JJ., Concur.


author: FERNANDEZ, J.

text:
    U.S. BANK, N.A., etc., Appellant, v. Babak RAHEB, Appellee.
    No. 3D17-2734
    District Court of Appeal of Florida, Third District.
    Opinion filed November 14, 2018.
    Lapin & Leichtling, LLP, Jeffrey S. Lapin, Adam B. Leichtling and Alejandra Arroyave Lopez, for appellant.
    Lazaro Vazquez ; Anthony Accetta and Brian A. Concepcion, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and SCALES, JJ.
   FERNANDEZ, J.

Plaintiff U.S. Bank N.A., successor Trustee to Bank of America, N.A., successor in interest to LaSalle Bank N.A., as trustee, on behalf of the holders of the WAMU mortgage pass-through certificates, series 2007-OA3 (the "Trust"), appeals to this Court the trial court's Order Granting Defendant's Motion to Dismiss Plaintiff's Complaint and dismissing the action with prejudice, as well as the subsequent order denying Plaintiff's Motion for Rehearing. We reverse because the trial court erred in dismissing the Trust's foreclosure action with prejudice.

On December 9, 2016, the Trust filed the mortgage foreclosure action below, after the defendant Babak Raheb defaulted on a $1,125,000.00 mortgage loan secured by real property Raheb owned in Miami-Dade County. The trial court's order on appeal granted Raheb's motion to dismiss the Trust's complaint with prejudice. The complaint alleged that Raheb failed to make the payment that was due on March 1, 2012, and all subsequent payments due thereafter. Raheb moved to transfer the case to the circuit court division to which the prior foreclosure actions filed by the Trust had been assigned. The trial court granted Raheb's motion, and the Trust agreed to this transfer.

Raheb then moved to dismiss the foreclosure action, contending that the foreclosure action was barred by the dismissal of three prior foreclosure actions by the Trust against Raheb. The motion to dismiss stated that the first foreclosure action was filed in 2009 and was based on Raheb's August 1, 2008 default and all subsequent payments, and was voluntarily dismissed by the Trust. The motion stated that the second action, filed in 2010, alleged the same August 1, 2008 default and was involuntarily dismissed by the Trust on a motion to quash service of process. Raheb's motion argued that the third foreclosure action, alleging the same August 1, 2008 default, was dismissed with prejudice because "the Court found after an evidentiary hearing that the [Trust] committed fraud upon the Court by submitting false affidavits."

Raheb's motion to dismiss further contended that the Trust appealed the dismissal order in the third foreclosure action and requested this Court to relinquish jurisdiction of the case so that trial court could consider a motion for rehearing by the Trust. Raheb's motion stated that the trial court denied the Trust's motion for rehearing due to the alleged fraud upon the court. The trial court's order denying the Trust's motion for rehearing does not contain this finding.

During the appeal of the Trust's third action, this Court issued Deutsche Bank Trust Company Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016), an en banc decision where this Court held that a mortgagee had a right to file a subsequent foreclosure action after a dismissal, even if the dismissal was with prejudice. After the Beauvais decision, the Trust dismissed its appeal in the third action. The Trust then filed its fourth foreclosure action, based on different defaults by Raheb.

Raheb's motion to dismiss the Trust's complaint further argued that Florida Rule of Civil Procedure 1.420(b)'s two-dismissal rule applied and that all the dismissals operated as an adjudication on the merits. Raheb thus argued that if the Trust wanted to purse its claim against Raheb, the Trust was required to refile a lawsuit against Raheb alleging a new and separate breach that was not addressed in the previous foreclosure actions.

At the conclusion of the hearing on Raheb's motion to dismiss, the trial court stated:

THE COURT: All right. Thank you for both Counsels' arguments. And the Court did consider the case law presented before this Court, and considering the arguments, the Court is going to dismiss this matter with prejudice and for the final time, as well. Should this case be re-filed I'm going to declare vexatious litigation.
You should have [a mandate] by the Third DCA directing this Court, specifically, to hear this matter. Number one, it was appealed by final judgment and you filed a voluntary dismissal, and you brought the case back before this Court. And even though the order may not have stated, initially, that it was, you know, stated as fraudulent testimony when it was brought before this Court, it is -- the record speaks clearly for itself. If you need to attach the transcript, you may, to supplement and reargue before the Third DCA.
I appreciate Counsel's argument. She wasn't here present when I conducted the hearing and made that finding, which is clearly on the record. But, again, you need an order mandating this Court to hear this again, because otherwise it's going to be a fifth time or sixth, or seventh, etcetera, where the ruling clearly stood, and you took an appeal, then you took another voluntary dismissal. This is my final judgment, otherwise we're going to be spinning our wheels here. And I don't want vexatious litigation, as I said before, until there's a final closure to this matter.

The transcript then indicates that Raheb's counsel stated that he would circulate a proposed order to the Trust's counsel before submitting it to the trial court. However, he did not, and instead submitted his proposed order to the trial court at the same time he submitted it to the Trust's counsel. As such, he did not give the Trust's counsel a chance to review it. The trial court then adopted Raheb's proposed Order verbatim.

Raheb's proposed order contained findings the trial court did not pronounce at the hearing. For example, it stated that the current action dealt with the same claims as the previous action, even though the Trust alleged different default dates. The proposed order also erroneously stated that the parties agreed to transfer the case to the trial court's division because the trial court's prior ruling involved the same claims. In addition, Raheb's proposed order cited to case law that was not discussed at the hearing, nor were the cases included in Raheb's motion to dismiss. Importantly, Raheb's proposed order stated the trial court had dismissed the Trust's prior action with prejudice after finding that the Trust committed fraud upon the court, which was factually inaccurate because the trial court had never made this finding. Raheb's proposed order also stated that "[p]laintiff committed serious misconduct by providing false or misleading testimony." The record reflects the trial court did not state this.

Raheb's proposed order also awarded Raheb entitlement to attorney's fees and costs pursuant to the mortgage. However, there was no argument at the hearing about attorney's fees and costs. There was no finding by the trial court that Raheb and the Trust were parties to the note and mortgage. Raheb had argued in his motion to dismiss and at the hearing that the Trust lacked standing to enforce the note and mortgage.

At the hearing, the Trust's counsel complained that Raheb's counsel did not submit his proposed order without first providing it to the Trust's counsel for review. The following exchange then took place at the hearing:

Trust's counsel: Why didn't you send me the draft proposed order before submitting it to the Judge? You said at the hearing that you would do so before submitting it.
* * *
Trust's counsel: I just read the proposed order. It contains rulings that the Judge did not make at the hearing. It also includes entitlement to attorney's fees that was not discussed at the hearing. Plaintiff was not given the opportunity to oppose entitlement to attorney's fees. Please retrieve your submission from the Judge and send me the draft proposed order so we may accurately reflect the Court's ruling based on the transcript. I would appreciate your cooperation in this matter and hope you will extend the professional courtesy to do the requested above.
* * *
Raheb's counsel: The request for fees is in my motion that was granted and the judge ruled your client committed fraud upon the court based on his prior order.
Maybe you were to [sic] frustrated to pay attention. Remember he said don't ever come back to his court room with this case unless you have a writ from the 3rd dca [sic].
Do you think he wasn't granting my request for fees? Are you joking? If he doesn't believe it's accurate he can change it or enter his own order.
Finally, you and your client have continued to file false and fraudulent documents with the court. That is the only amendment I'm willing to make if you would like. I suggest you relax your tone and don't ever dare tell me what to do. Your actions should be sanctioned and I believe I was beyond nice not to include them in the order. Have a great day!

Although the Trust's counsel told the trial court that the Trust never had the opportunity to review Raheb's proposed order, the trial court adopted, verbatim, Raheb's proposed order. The Trust then moved for rehearing, which the trial court denied. The Trust now appeals the trial court's order dismissing the Trust's complaint with prejudice.

The standard of review of an order granting a motion to dismiss is de novo . Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003). We find that the trial court erred in dismissing the Trust's mortgage foreclosure action with prejudice.

First, the trial court improperly dismissed this action because it based its dismissal on a previous dismissal with prejudice of a prior foreclosure action. The plaintiff alleged a default date in this action of March 1, 2012, which was different than the default date in the prior foreclosure action, in addition to "all subsequent payments due thereafter." Thus, the dismissal with prejudice of the present foreclosure action is not supported by law. The Florida Supreme Court in Bartram v. U.S. Bank National Association, 211 So.3d 1009 (Fla. 2016), permitted a subsequent foreclosure action based on subsequent default dates within five years of the filing of the subsequent foreclosure action. See also Singleton v. Greymar Assoc., 882 So.2d 1004, 1005-07 (Fla 2004). Thus, the plaintiff's allegations of a different default period stated a new foreclosure cause of action, and the trial court erred in dismissing it with prejudice.

Second, we agree with the Trust that the trial court erred in entering the dismissal order because on a motion to dismiss, it was required to only consider matters within the four corners of plaintiff's complaint. Susan Fixel, Inc., 842 So.2d at 206 (Fla. 3d DCA 2003). Here, the Trust's "Verified Complaint to Foreclose Mortgage" filed on December 9, 2016, does not contain any allegation regarding the prior foreclosure action between the parties that was dismissed with prejudice for the trial court to base its ruling in dismissing the December 9, 2016 action with prejudice. Thus, in ruling on Raheb's motion to dismiss, the trial court erroneously considered information outside of the four corners of the Trust's Complaint.

Furthermore, the trial court stated that the prior dismissal "was premised upon a finding that the Plaintiff committed serious misconduct by providing false and misleading testimony." However, the trial court never made this finding in the prior action. The basis of the dismissal in the prior action was improper service by publication. The trial court did make a finding that the process server lied but did not tie this in in any way to the Trust being involved or any fraud committed by the Trust. In order to make a finding of fraud on the court, the trial court would have had to make express written findings "demonstrating that the trial court has carefully balanced the equities and supporting the conclusion that the moving party has proven, clearly and convincingly, that the non-moving party implemented a deliberate scheme calculated to subvert the judicial process." Chacha v. Transp. USA, Inc., 78 So.3d 727, 731 (Fla. 4th DCA 2012). No such findings were made by the trial court.

Finally, the trial court erred in dismissing the plaintiff's action with prejudice because the record reflects the trial court's dismissal order included findings not made by the trial court at the hearing on Raheb's motion to dismiss. The oral pronouncement and the trial court's findings in the order on appeal do not match, and it appears that Raheb's counsel took certain liberties in making findings from the court that are not supported by the transcripts. For example, the trial court's order cites to two cases that were not cited in Raheb's motion to dismiss, nor were they discussed at the hearing on that motion. The Order also incorrectly states that the prior action dealt with the same claims as the instant action. However, the current claim before the trial court dealt with different defaults that were not addressed in the previous action. In addition, the Order incorrectly states that the parties agreed to transfer this action to the trial court's division "upon this Court's prior ruling involving the same claims and parties to this action." However, this was incorrect, because as previously stated, the current action was based on a different default date than the default claim in the prior action.

Furthermore, the trial court's Order incorrectly states that the trial court "dismissed the third action after making a finding at the close of an evidentiary hearing that the Plaintiff committed fraud upon the Court by submitting false affidavits and testimony to this Court." The trial court did not make this statement. In addition, paragraph 7 of the trial court's order states, "Plaintiff committed serious misconduct by providing false or misleading testimony." The trial court also did not make this statement or make this finding. What the trial court said was that "the record [from the prior action's evidentiary hearing] speaks clearly for itself." The trial judge never made specific findings that the Trust was in any way involved in perpetrating a fraud on the court in the prior action.

And finally, the Order erroneously granted Raheb entitlement to attorney's fees and costs "pursuant to the mortgage and applicable Florida law." The transcript of the hearing reflects that not only did the trial court not orally grant entitlement at the hearing, there was no argument at the hearing on attorneys' fees and costs. The Trust contends that for Raheb to recover attorney's fees and costs, this would require a finding by the trial court that the Trust had standing to enforce the note and mortgage. See Bank of N.Y. Mellon Tr. Co. v. Fitzgerald, 215 So.3d 116 (Fla. 3d DCA 2017). In his motion to dismiss and at the hearing on the motion, Raheb argued that the Trust lacked standing to foreclose under the note and mortgage. Raheb did not prove at the hearing and there was no finding by the trial court that both Raheb and the Trust were parties to the note and mortgage. Thus, Raheb is not entitled to fees here.

The trial court adopted the defendant's counsel's proposed order verbatim, and it was never provided to the plaintiff's counsel first for review, although at the hearing defendant's counsel indicated on the record he would provide it to plaintiff's counsel before submitting it to the trial court. This was improper. Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla. 2004).

For the foregoing reasons, we reverse the trial court's Order Granting Defendant's Motion to Dismiss Plaintiff's Complaint with prejudice and remand the case to the trial court for reinstatement of the Trust's foreclosure action against Raheb.

Reversed and remanded.

      The record reflects that the first foreclosure action alleged a September 1, 2008 default date and all subsequent payments due.

      In the current action, the Trust alleged new and separate breaches that occurred on March 1, 2012, and "all subsequent payments due thereafter."