author: M.K. Thomas, J.

text:
    Liberty NEW, Appellant, v. Charles BENNETT, Appellee.
    No. 1D17-3196
    District Court of Appeal of Florida, First District.
    June 4, 2018
    Rachel R. Seaton of Seaton Law Offices, P.A., Panama City, for Appellant.
    Robert L. Sirianni, Jr., of Brownstone, P.A., Winter Park, for Appellee.
   M.K. Thomas, J.

Liberty New appeals the Florida trial court's denial of her Petition for Domestication of a final order entered in Georgia. The Georgia order holds Charles Bennett, her former spouse, in contempt of court and orders his immediate incarceration until payment of child support arrearages. New argues that pursuant to the Full Faith and Credit Clause, a sister state's judgment must be recognized in the absence of jurisdictional invalidity or extrinsic fraud, neither of which were proven by Bennett. We agree and reverse and remand the case for domestication of the Georgia order.

I.

The parties were divorced in Okaloosa County, Florida, on October 23, 2008. The divorce decree requires Bennett to pay child support and provide health and dental insurance, among other financial obligations. Shortly after the parties divorced, New and the children relocated to Georgia. In December of 2013, New filed a complaint in Georgia requesting that the 2008 divorce decree entered in Florida be registered and enforced by the court in Coweta County, Georgia. The complaint, which was properly served upon Bennett, alleged Bennett's failure to comply with the divorce decree. A hearing was scheduled in Georgia for March 24, 2015, to address temporary relief. Prior to the hearing, Bennett filed a responsive pleading. Neither Bennett nor his attorney appeared for the hearing despite receiving notice. The Georgia trial court noted that upon review of Bennett's response it was unable to determine either the relief requested or the defenses asserted. As a result of the March hearing, a contempt order was entered on April 17, 2015. A final hearing was scheduled for December 7, 2015. Despite notice of the final hearing to all parties, Bennett and his attorney were again no-shows. As a result of the hearing, the Georgia trial court determined both that: 1) New had complied with the requirements to register the Florida divorce decree for enforcement in Georgia; and 2) the pleading filed by Bennett was intended as an objection to registration of the Florida divorce decree in Georgia. The Georgia trial court denied Bennett's objection to registration, held him in contempt and ordered his immediate incarceration until payment of $23,417.85 in support arrearages and previously awarded attorney's fees.

As of late 2016, Bennett had apparently not returned to Coweta County, Georgia, or had done so unbeknownst to law enforcement. Accordingly, he had not been incarcerated nor had he paid the outstanding child support. In further effort to obtain relief and to enforce the Georgia order, New filed in Florida a Petition for Domestication of Foreign Order in accordance with sections 55.503 and 55.505, Florida Statutes. New filed the petition in Bay County, Florida, where Bennett was living. In response, Bennett filed a Motion to Strike. A hearing was scheduled, and this time, Bennett and his attorney appeared. Ultimately, the Florida trial court denied New's request for domestication of the Georgia order, concluding the Georgia court lacked proper jurisdiction to find Bennett in willful contempt and subject to imprisonment-as the contempt order was issued without a jury trial. The trial court further concluded that the Georgia order lacked the requisite findings to order Bennett's incarceration, even if jurisdiction was proper, because the Georgia court did not find Bennett had the present ability to pay the amount awarded. This appeal followed.

II.

"Florida enacted the Uniform Enforcement of Foreign Judgments Act, or Florida Enforcement of Foreign Judgments Act (FEFJA), in 1984." Patrick v. Hess , 212 So.3d 1039, 1042 (Fla. 2017) ; see also §§ 55.501-509, Fla. Stat. (2016). FEFJA was intended to provide an efficient method of enforcing foreign judgments without the undue cost and difficulty associated with filing a new, separate action to domesticate a foreign judgment. Pratt v. Equity Bank, N.A. , 124 So.3d 313, 315 (Fla. 5th DCA 2013). A foreign judgment domesticated under FEFJA has the same effect as a Florida judgment and is subject to the same legal and equitable defenses and rules of procedure. Desert Palace, Inc. v. Wiley , 145 So.3d 946, 947 (Fla. 1st DCA 2014).

FEFJA stems from the Full Faith and Credit Clause of the United States Constitution, which states: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State." U.S. Const. art. IV, § 1. In the Full Faith and Credit context, if the first state had jurisdiction over the parties and the subject matter, " 'the validity of the claim on which the foreign judgment was entered is not open to inquiry.' " M & R Invs. Co. v. Hacker, 511 So.2d 1099, 1101 (Fla. 5th DCA 1987) (quoting Trauger v. A.J. Spagnol Lumber Co., Inc., 442 So.2d 182, 183 (Fla.1983). "A foreign order of contempt is entitled to full faith and credit in Florida if it is valid in the state in which it was issued." Roosa v. Roosa, 519 So.2d 1108, 1109 (Fla. 4th DCA 1988).

Pursuant to the Full Faith and Credit Clause, a sister state's judgment must be recognized, but it may be attacked for either lack of jurisdiction or extrinsic fraud. Hinchee v. Golden Oak Bank , 540 So.2d 262, 263 (Fla. 2d DCA 1989). "[T]he validity of the foreign judgment must be analyzed under the law of the foreign state." Id. at 263. If a Florida litigant shows that a sister state's judgment is valid and final and that subject matter and personal jurisdiction existed in the foreign state, the judgment is properly authenticated. See Robinson v. Robinson , 487 So.2d 67, 68 (Fla. 1st DCA 1986). A Florida court should not "attempt to determine the validity of a judgment or decree of a sister or foreign country unless something appears on the face of the record which discloses its invalidity." The Cadle Co. v. Jay , 907 So. 2d 634, 639 (Fla. 3d DCA 2005).

III.

Whether the trial court erred in its denial of New's Petition for Domestication of the Georgia order is reviewed de novo . Spano v. Wells Fargo Equip. Fin. , 165 So.3d 834, 836 (Fla. 4th DCA 2015).

In the order on appeal, the Florida trial court briefly addressed jurisdiction, stating, "the Georgia Court did not have proper jurisdiction to find Respondent/Former Husband in willful contempt subject to imprisonment. (See Ga. Code Ann. § 15-1-4.)" Correctly, the Florida trial court applied the laws of the foreign state in analyzing jurisdiction. However, it erred in finding the Georgia court lacked jurisdiction, as nothing on the face of the Georgia order indicates any form of jurisdictional invalidity. Furthermore, the Florida trial court's citation of section 15-1-4 in relation to its analysis of the personal jurisdiction was misplaced. The statute is not jurisdictional in nature, but rather addresses a court's power to punish contempt based on specified acts. The Georgia court specifically found it "ha[d] personal jurisdiction over Former Husband and to enforce the terms of the Final Decree." Georgia's Uniform Interstate Family Support Act provides that "[i]n a proceeding to establish or enforce a support order ... a tribunal of this state may exercise personal jurisdiction over a nonresident individual ... if ... (2) [t]he individual submits to the jurisdiction of Georgia by ... filing a responsive document having the effect of waiving any contest to personal jurisdiction" or if there is any other basis consistent with the Constitutions of Georgia and the United States. Ga. Code Ann. § 19-11-110(a)(2),(8). Here, the Georgia court specifically referenced Bennett filing a pleading in the Georgia proceeding prior to issuance of the Georgia order. The burden was on Bennett to prove lack of personal jurisdiction. By failing to appear at the Georgia final hearing to assert said defenses, the registration of the Florida decree was confirmed, which precluded further contest of the registration in Georgia with respect to jurisdiction or any other defense which could have been raised in the Georgia proceeding. Ga. Code Ann. §§ 19-11-166(a), 19-11-167.

The Florida trial court supported its denial of the Petition for Domestication by finding the Georgia order "lacks the requisite findings to order [Bennett's] immediate incarceration even if jurisdiction was proper." Specifically, the trial court held that the Georgia order did not find Bennett had the present ability to pay the arrearage, so a finding of willful and "criminal" contempt was improper. However, where a petition is made to register and enforce a foreign judgment pursuant to section 55.501, Florida law only permits the judgment debtor to contest the jurisdiction of the foreign court. The registering court is not entitled to retry the foreign court's findings of fact. See § 55.509, Fla. Stat.

Here, the trial court initiated an improper substantive review of the Georgia judgment. The Cadle Co. , 907 So.2d at 639. "The courts of Florida cannot be empowered by the legislature to review the underlying cause of action when a person seeks to enforce a foreign judgment in this state." Trauger , 442 So.2d at 183-84. The validity of New's claim upon which the Georgia judgment was entered was not "open to inquiry" by the Florida trial court. See Stern v. Dejong , 462 So.2d 41, 42 (Fla. 1st DCA 1984). Consistent with the Full Faith and Credit Clause, the Georgia order is impeachable in Florida only if the judgment is susceptible to collateral attack under the foreign state's jurisprudence. See Johnson v. Muelberger , 340 U.S. 581, 589, 71 S.Ct. 474, 95 L.Ed. 552 (1951). These collateral attacks against judgments involve parties who have had their day in court. Where there has been participation by the parties in the foreign divorce proceedings and the parties have been given full opportunity to contest the jurisdictional issues, any further attack on the judgment is barred by res judicata. Sherrer v. Sherrer , 334 U.S. 343, 351, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948).

Florida courts have jurisdiction to enforce a foreign judgment for arrearages in alimony or child support by equitable remedies, including contempt. See Gibson v. Bennett , 561 So.2d 565 (Fla. 1990). As Bennett failed to satisfy his burden of proof that the Georgia trial court lacked personal jurisdiction or that the foreign order was obtained as a result of extrinsic fraud, the Florida trial court erred in not providing full faith and credit to the Georgia order. Accordingly, the order on appeal is reversed, and the matter remanded for domestication of the Georgia order.

REVERSED and REMANDED with directions.

Osterhaus and Winokur, JJ., concur.

      The trial court's reasoning for denial of the Petition for Domestication is limited to the order on appeal. No transcript of the hearing in Bay County, Florida, was provided as part of the record.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Kenneth WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5155
    District Court of Appeal of Florida, First District.
    June 5, 2018 Rehearing Denied August 1, 2018
    Kenneth Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Rowe, Kelsey, and Winokur, JJ., concur.


author: EMAS, J.

text:
    CITY OF MIAMI, Appellant, v. CITY OF MIAMI FIREFIGHTERS' AND POLICE OFFICERS' RETIREMENT TRUST & PLAN, et al., Appellees.
    No. 3D18-86
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018.
    Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, and Kerri L. McNulty and Kevin R. Jones, Assistant City Attorneys, for appellant.
    Klausner, Kaufman, Jensen & Levinson, and Robert D. Klausner, Adam P. Levinson and Paul A. Daragjati (Plantation), for appellees.
    Before ROTHENBERG, C.J., and EMAS and LINDSEY, JJ.
   EMAS, J.

INTRODUCTION

The City of Miami ("the City") filed suit against the City of Miami Firefighters' & Police Officers' Retirement Trust & Plan ("the Trust") and the Board of Trustees of the City of Miami Firefighters' & Police Officers' Retirement Trust ("the Board"), seeking temporary and permanent injunctive relief.

In the instant appeal, the City seeks review of the trial court's order (1) denying the City's emergency motion for temporary injunctive relief; and (2) granting the Trust and the Board's motion for abatement and abating the proceedings below, pending exhaustion of the conflict resolution procedures in Chapter 164.

For the reasons that follow, we reverse the trial court's order denying the City's emergency motion for temporary injunctive relief, and affirm the trial court's order abating the proceedings.

FACTS AND PROCEDURAL HISTORY

On July 28, 2010, the City declared a "financial urgency," pursuant to section 447.4095, Florida Statutes (2010), and, on August 31, 2010, voted to unilaterally alter the terms of its collective bargaining agreement ("CBA") with Miami Lodge No. 20, Fraternal Order of Police ("the Union"). The City implemented this change to the CBA by amending its pension ordinance, resulting in reduced pension benefits for retired police officers ("the 2010 pension ordinance").

The Union filed an unfair labor practice charge with the Public Employees Relations Commission ("PERC") on September 21, 2010, contending that the City improperly modified the CBA without completing the impasse resolution process required by the financial urgency statute. See § 447.403, Fla. Stat. (2010). The hearing officer found that the City had properly invoked the financial urgency statute and was not required to complete the impasse resolution procedures before implementing changes to the CBA. PERC adopted the hearing officer's recommendation in its final order dismissing the Union's charge.

The Union appealed to the First District Court of Appeal, which affirmed PERC's final order, finding PERC did not err in interpreting or applying section 447.4095. Headley v. City of Miami, 118 So.3d 885 (Fla. 1st DCA 2013).

The Union sought review from the Florida Supreme Court, and on March 2, 2017, the Florida Supreme Court issued its opinion, agreeing with the Union that a public employer may not modify a CBA in the event of a financial urgency unless it shows "that the funds are not available from any other possible reasonable source." Headley v. City of Miami, 215 So.3d 1, 8 (Fla. 2017). The Court also held that " section 447.4095 permits the unilateral implementation of changes to the CBA only after the parties have completed the impasse resolution proceedings and have failed to ratify the agreement." Id. at 9. The Court quashed the First District's decision and remanded "for proceedings consistent with this decision." Id. at 10. On remand, the First District issued an order remanding the case to PERC "for further proceedings consistent with the Florida Supreme Court's opinion."

On remand, PERC concluded that the City failed to comply with the impasse resolution procedures of section 447.403, and that it was not statutorily authorized to unilaterally modify the collective bargaining agreement. PERC further concluded that the City engaged in an unfair labor practice when it adopted the 2010 pension ordinance, because the City unilaterally changed wages, pensions, health insurance and other monetary items for the police union employees prior to completing the impasse resolution procedures. The order remanded the cause to a hearing officer to recommend an appropriate remedy. On July 20, 2017, the hearing officer recommended that the City be directed to rescind its modifications to the wages, health care, and pension benefits of employees represented by the Union and that PERC direct the parties to return to the status quo ante as of September 29, 2010, the day prior to the adoption of the 2010 pension ordinance.

On September 27, 2017, the Board sent a letter to the City Manager, inviting the City to engage in discussion with the Board on the issues arising out of the Florida Supreme Court's decision and PERC's recent orders ("the Board's September 27 letter").

On October 18, 2017, PERC adopted the hearing officer's recommendations and determined that "[t]he appropriate remedy in this case requires the City to rescind the changes in wages and benefits that were legislatively imposed on September 30, reinstate the status quo ante as of September 29, 2010, and make the employees whole." PERC directed the clerk to open a back-pay case and schedule a hearing before a hearing officer for that purpose. Importantly, the PERC order specifically provided:

This is not an appealable final order because the amount of back pay remains for determination. When the amount of back pay is resolved, the Commission will issue a final order that will allow either party to appeal the merits of this order or the amount of back pay.

(Emphasis added.)

Following this October 18, 2017 nonfinal, nonappealable order from PERC, on November 2, 2017, the Board voted to "administer the System as if the Ordinance had never been adopted in 2010 ... correct all member records accordingly and add the liability to the City cost." It directed the Trust Administrator to "correct all members that were affected and provide benefits as if Ordinance 13202 had never been adopted." This "correction" of benefits did not calculate any back pay that was due, but restored the plan beneficiaries to the pension calculation that was utilized before the City's 2010 pension ordinance.

On December 22, 2017, the City filed suit against the Board and the Trust in circuit court, seeking to enjoin the Board's anticipated action in adjusting benefit payments and providing benefits under the pre-2010 pension ordinance. It also filed an emergency motion for temporary injunctive relief, asserting such adjusted payment of benefits would be in violation of the City's pension code, which had not been amended by the City, which no final court order had invalidated, and which the Board and the Trust had no authority to modify, rescind or ignore.

After an evidentiary hearing, the trial court entered an order denying the City's motion for temporary injunctive relief. The trial court also determined that, because the City failed to comply with the pre-suit conflict resolution procedures under Chapter 164, the circuit court proceedings must be abated pending compliance with those conflict resolution procedures. This appeal followed.

ANALYSIS AND DISCUSSION

Did the trial court err in denying the City's motion for a temporary injunction to prevent the Board from unilaterally adjusting payments and providing benefits as if the 2010 pension ordinance had never been adopted?

We apply a hybrid standard of review to the appeal of an order granting or denying a temporary injunction: "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." Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1258 (Fla. 2017) (quoting Fla. High Sch. Athletic Ass'n v. Rosenberg, 117 So.3d 825, 826 (Fla. 4th DCA 2013) (additional citations omitted).

The Board's position is that the Headley decision "invalidated" the 2010 pension ordinance, rendering it void ab initio, and thus, the Board was required to restore the plan beneficiaries to the pre-2010 pension ordinance.

Thus framed, the initial question is whether, at this procedural posture, the 2010 pension ordinance is still valid in light of Headley. We conclude that it is. First and foremost, nowhere in Headley did the Florida Supreme Court invalidate or declare void the City's 2010 pension ordinance. Nor did the Court direct the First District or PERC to do so. Although Headley quashed the First District's opinion upholding PERC's determination that the City acted properly, the Headley court did not quash the 2010 pension ordinance. The Headley Court simply rejected the First District's determination that the City was entitled to unilaterally amend the pension ordinance without first completing the impasse resolution proceedings, and then showing that funds were not available from any other possible reasonable source. In other words, the Florida Supreme Court rejected PERC's and the First District's basis for determining that the City properly enacted the 2010 pension ordinance. The First District, on remand, simply remanded to PERC for proceedings consistent with the Supreme Court's opinion.

The Board further maintains it that had no choice but to administer the system and provide benefits as if the 2010 pension ordinance did not exist because PERC's subsequent order on remand from the First District Court of Appeal also rendered the 2010 pension ordinance void. Again, we disagree.

First, on remand, although PERC concluded that the 2010 pension ordinance was improvidently passed, PERC determined that the appropriate remedy is for the City to rescind the 2010 changes to the pension ordinance and to reinstate the pension ordinance in place before those unilateral changes were made:

The appropriate remedy in this case requires the City to rescind the changes in wages and benefits that were legislatively imposed on September 30, reinstate the status quo ante as of September 29, 2010, and make the employees whole.

Although, ultimately, the City may be required to rescind, modify or amend its 2010 pension ordinance to comply with any final order issued by PERC, the obligation and authority to do so rests with the City and not the Board.

Furthermore, as PERC specifically provided in its order, its determination is neither final nor appealable, and a final order will be forthcoming (following the back pay determination) which will then allow the City to appeal both the back pay issue and the merits of PERC's decision. Accordingly, because the PERC order is not yet final or appealable, the 2010 pension ordinance is still in place and the Board should have continued to administer the Trust pursuant to that ordinance until PERC issues a final order. See § 185.06(4), Fla. Stat. (2017) (providing "nothing herein shall empower a board of trustees to amend the provisions of a retirement plan without the approval of the municipality).

The Board's erroneous conclusion that the 2010 pension ordinance is void ab initio, and its corresponding, unauthorized, directive that the Trust Administrator "provide benefits as if Ordinance 13202 had never been adopted," and "administer the System as if the Ordinance had never been adopted in 2010," usurped the City's authority and its police power. In addition, given that the PERC proceedings are not yet complete, and the order issued by PERC on remand is nonfinal and nonappealable, the Board's action impairs the City's appellate rights.

Based upon this threshold determination, we conclude that the trial court erred in denying the City's emergency motion for temporary injunction. Under Florida law, "[a] temporary injunction should only be granted where there is a showing of (1) the 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 petitioner outweigh any possible harm to the respondent, and (4) that the granting of the preliminary injunction will not disserve the public interest." Miami-Dade Cty. v. Fernandez, 905 So.2d 213, 215 (Fla. 3d DCA 2005). However, and importantly in this case, "this showing is relaxed when an injunction is sought by a governmental entity to enforce its police powers. In such circumstances the municipality need not come forth with proof to show irreparable harm or lack of an alternate remedy." Id. (citing Metro. Dade Cty. v. O'Brien, 660 So.2d 364, 365 (Fla. 3d DCA 1995) for the proposition that "[w]here the government seeks an injunction in order to enforce its police power, any alternative legal remedy is ignored and irreparable harm is presumed).

A municipality's enforcement of its ordinance falls within that municipality's police power. See Manatee Cty. v. 1187 Upper James of Fla., LLC, 104 So.3d 1118, 1121 (Fla. 2d DCA 2012) (holding county entitled to injunction where it seeks to enforce its duly enacted ordinance); Polk County v. Mitchell, 931 So.2d 922 (Fla. 2d DCA 2006).

Given our conclusion that the 2010 pension ordinance was not invalidated in Headley, and that the PERC order on remand was not final or appealable, the City is correct that it need not establish irreparable harm and lack of an alternate remedy in order to obtain temporary injunctive relief, as it is seeking such to protect its police power to enforce its own existing ordinances.

Did the trial court err in abating the proceedings until Chapter 164's conflict resolution procedures are exhausted?

The trial court determined that abatement was required because (1) the Board initiated formal conflict resolution procedures with its September 27 letter; and (2) because, where a governmental entity files suit against another governmental entity, Florida law requires abatement until the procedural options of the Florida Governmental Conflict Resolution Act have been exhausted. § 164.1041, Fla. Stat. (2017). We agree with the trial court that section 164.1041 warrants abatement.

The purpose of Chapter 164 is to:

enhance intergovernmental coordination efforts by the creation of a governmental conflict resolution procedure that can provide an equitable, expeditious, effective, and inexpensive method for resolution of conflicts between and among local and regional governmental entities.

§ 164.102, Fla. Stat. (2017). The Legislature has expressed its intent "that conflicts between governmental entities be resolved to the greatest extent possible without litigation." Id. It is undisputed that the parties in this case are all "governmental entities," as defined in chapter 164.

Pursuant to section 164.1041(1) :

If a governmental entity files suit against another governmental entity, court proceedings on the suit shall be abated , by order of the court, until the procedural options of this act have been exhausted.

(Emphasis added). That same subsection further provides:

The governing body of a governmental entity initiating conflict resolution procedures pursuant to this act shall, by motion, request the court to issue an order abating the case pursuant to this section.

Finally, section 164.1052(1) provides:

The governing body of a governmental entity shall initiate the conflict resolution procedures provided by this act through passage of a resolution by its members. The resolution shall state that it is the intention of the governing body to initiate the conflict resolution procedures provided by this act prior to initiating court proceedings or prosecuting action on a previously filed court proceeding to resolve the conflict....

Chapter 164 also provides for a conflict assessment phase and joint public meetings (in the event of no resolution), followed by the governmental entities' right to pursue other legal rights. See §§ 164.1053, 164.1055, 164.1056, and 164.1057. It is undisputed that none of these conflict resolution procedures have been conducted between the City and the Board in this case.

The City contends that the trial court erred in abating the matter because chapter 164's dispute resolution procedures were not properly invoked by the Board. The City asserts that the Board's September 27 letter was not a resolution passed by the members of the Board's governing body as required under section 164.1052(1). Therefore, the City argues, the Board did not "initiate the conflict resolution procedures provided by this act," and may not move to abate the proceedings pursuant to section 164.1041(1).

We agree with the City that the Board's letter of September 27 does not qualify as a "resolution" as would be statutorily required to initiate dispute resolution procedures under section 164.1052(1). Instead, the Board's letter states merely that the Board is prepared to meet with the City in an open, public discussion to address the issues. Nowhere does the letter indicate, as required by section 164.1052(1), that the Board has adopted a "resolution" stating "that it is the intention of the governing body to initiate the conflict resolution procedures provided by this act." Indeed, the record reflects no such resolution having been passed by the Board.

However, we agree with the Board that despite any failure to pass a resolution, abatement was nevertheless required under section 164.1041(1), which provides: "If a governmental entity files suit against another governmental entity, court proceedings on the suit shall be abated, by order of the court, until the procedural options of this act have been exhausted." The only reasonable construction of this language requires the trial court to abate the proceedings until the parties exhaust the procedural options of Chapter 164, even if dispute resolution procedures were not initiated prior to filing suit.

The City appears to conflate the two provisions of sections 164.1041(1) (mandatory abatement) and 164.1052(1) (initiation of conflict resolution procedures). In essence, the City asserts that, unless the Board properly initiates conflict resolution procedures, it cannot move for abatement of the proceedings and the trial court cannot order abatement of the proceedings. We do not agree, and conclude that, where a governmental entity files suit against another governmental entity and the procedural options under chapter 164 have not yet been exhausted, the plain language of section 164.1041(1) requires the trial court to abate the action regardless of whether either party has initiated the conflict resolution procedures. Any other reading would produce absurd results, would permit parties to evade conflict resolution in favor of litigation, frustrating the entire legislative purpose and intent of chapter 164. The City would have us interpret the law to mean that if a governmental entity sues another governmental entity without invoking the conflict resolution procedures, the defending entity cannot seek to abate the action and invoke those procedures post-filing unless its governing body first passes a resolution. But that is not what the statute plainly states: "If a governmental entity files suit against another governmental entity, court proceedings on the suit shall be abated, by order of the court, until the procedural options of this act have been exhausted." § 164.1041(1) (emphasis added).

Although the City may be correct that the conflict resolution procedures cannot begin until either the Board or the City passes a resolution, this does not mean that the court proceeding should continue until that happens. The court proceeding "shall be abated ... until the procedural options ... have been exhausted."Id. (emphasis added).

Accordingly, because the City filed suit without the parties having first exhausted Chapter 164's conflict resolution procedures, the trial court properly abated the action.

We affirm the trial court's order abating the action, and reverse the trial court's order denying the City's motion for temporary injunction. We remand for entry of a temporary injunction in favor of the City and for further proceedings consistent with this opinion.

      See § 447.4095, Fla. Stat. (2010).

      Section 447.501, Florida Statutes (2017), entitled "Unfair labor practices" provides in pertinent part:
      (1) Public employers or their agents or representatives are prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.
      ...
      (c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.

      Beginning on January 15, 2018, the Board began paying restored pension benefits calculated on the pre-2010 pension ordinance.

      Although the Board argues that the City cannot demonstrate a likelihood of success on the merits, the Board's argument fails to recognize that the "merits" is not the ultimate validity of the 2010 pension ordinance. Rather, the "merits" in this case is whether the Board was without authority to unilaterally calculate and pay benefits based on the pre-2010 pension ordinance. As discussed earlier, the Board does not have such unilateral authority in the absence of a final order invalidating the 2010 pension ordinance. See §§ 40-195, 40-196, City of Miami Code of Ordinances (providing that the Board must act "[i]n accordance with ordinances and other applicable law, documents and other instruments governing the retirement system" and listing the duties of the Board, none of which includes deciding whether or not to follow existing ordinances which have not been invalidated or replaced).

      The Board is the governing body of the governmental entity (the Trust) in this case. See § 164.1031(5).


text:
    Avery G. PATTERSON Sr., Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Financial Department, Department of Risk Management and Assistant Attorney General, Elizabeth Van De Berg, et al., Respondents.
    No. 1D18-1904
    District Court of Appeal of Florida, First District.
    June 5, 2018 Rehearing Denied August 1, 2018
    Avery G. Patterson Sr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Respondents.
   Per Curiam.

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

Rowe, Kelsey, and Winokur, JJ., concur.


author: LINDSEY, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR LEHMAN XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-16N, Appellant, v. Renee MORELLI, a/k/a Renee M. Izquierdo and Moses Linen, Lakes of the Meadow Recovery, Inc., et al., Appellees.
    No. 3D17-286
    District Court of Appeal of Florida, Third District.
    Opinion filed June 6, 2018
    DeLuca Law Group, PLLC, and Shawn Taylor (Fort Lauderdale), for appellant.
    Cotzen Law, P.A., and Michael L. Cotzen, for appellee Lakes of the Meadow Recovery, Inc.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LINDSEY, JJ.
   LINDSEY, J.

U.S. Bank National Association, as Trustee for Lehman XS Trust Mortgage Pass-Through Certificates, Series 2007-16N, appeals the trial court's dismissal of U.S. Bank's foreclosure complaint finding it was barred by the applicable five-year statute of limitations pursuant to section 95.11(2)(c), Florida Statutes (2014). Because under current law it was not, we reverse.

I. BACKGROUND

In February 2009, Aurora Loan Services, LLC filed a complaint to foreclose a mortgage on real property then-owned by Renee Morelli and Moses Linen. In its complaint, Aurora alleged that there was "a default under the terms of the note and mortgage for the October 1, 2008 payment and all payments due thereafter ." (Emphasis added). However, that complaint was dismissed without prejudice on May 23, 2011 for failure to appear for trial.

On July 28, 2014, U.S. Bank, as the then-holder of the note and mortgage, filed a verified complaint to foreclose on the same real property. U.S. Bank alleged that "Defendant(s) has defaulted under the Note and Mortgage by failing to pay the payment due October 1, 2008 and all subsequent payments ." (Emphasis added). The trial court concluded, based on Collazo v. HSBC Bank USA, N.A., that because U.S. Bank asserted a payment default date of October 1, 2008, more than five years prior to the July 28, 2014 filing of the underlying foreclosure complaint, U.S. Bank's action was barred by the statute of limitations. 213 So.3d 1012 (Fla. 3d DCA 2016). In accordance therewith, the trial court entered the order of dismissal on January 5, 2017, from which this timely appeal follows.

II. ANALYSIS

While the relevant and applicable case law in this area has recently been settled, it was still somewhat developing just before and after the trial court entered its dismissal order. This Court issued our decision in Deutsche Bank and Trust Co. Americas v. Beauvais on April 13, 2016. 188 So. 3d 938 (Fla. 3d DCA 2016) (en banc). We also issued our decisions in Collazo and Dhanasar v. JPMorgan Chase Bank, N.A., 201 So.3d 825 (Fla. 3d DCA 2016) on October 13, 2016. The Florida Supreme Court issued its opinion in Bartram v. U.S. Bank, N.A., 211 So.3d 1009 (Fla. 2016) on November 3, 2016, and declined review in Bollettieri Resort VillasCondominium Ass'n v. Bank of New York Mellon, 228 So.3d 72 (Fla. 2017) on October 12, 2017. Finally, we issued our decision in Wells Fargo Bank, N.A. v. Rendon, 245 So.3d 917, 918-19, 2018 WL 1832582, at *1 (Fla. 3d DCA Apr. 18, 2018), on April 18, 2018.

A. Deutsche Bank Trust Co. Americas v. Beauvais (en banc)

In Beauvais, Deutsche Bank's predecessor in interest filed a complaint on January 23, 2007 to foreclose on real property owned by Beauvais, alleging that Beauvais defaulted on a mortgage in failing to make a September 1, 2006 payment and accelerating payment of the balance due on the note and mortgage. 188 So.3d at 940-41. However, the action was dismissed without prejudice on December 6, 2010, for failure to appear at a case management conference.

Id. at 941. Subsequently, on December 18, 2012, Deutsche Bank filed another foreclosure complaint alleging that Beauvais was in default for failing to make a payment due October 1, 2006 and "all subsequent payments." Id. at 940.

The trial court concluded that Deutsche Bank's foreclosure action was barred by the statute of limitations because the bank's right to accelerate was exercised by the filing of the first action on January 23, 2007. Id. at 941. This Court concluded that "dismissal of a foreclosure action accelerating payment on one default does not bar a subsequent foreclosure action on a later default if the subsequent default occurred within five years of the subsequent action." Id. at 944. Thus, we reversed the trial court's order of dismissal of the action in part because it was "the fact that the bank alleged the failure to pay the October 1, 2006 installment payment 'and all subsequent payments ' that makes the instant case fall within the rule as set out herein." Id. at 945 (emphasis in original).

B. Collazo v. HSBC Bank USA, N.A.

Collazo is almost factually on point with the instant case. In Collazo, as in the instant case, a lender filed two foreclosure actions. 213 So.3d at 1012-13. The complaint in the first foreclosure action, as in the instant case, was dismissed without prejudice for failure to comply with a court order. Id. However, the second foreclosure case asserted only the same default date as the initial foreclosure action, which was more than five years prior to the filing of the second case. Id. at 1013. Accordingly, we reversed the final judgment of foreclosure entered by the trial court on the basis that the second case was commenced after "the expiration of the five-year statute of limitations applicable to the mortgage note." Id.

However, unlike the instant case, the default dates alleged in Collazo were not expanded to include either of the following: "and all payments due thereafter " or "and all subsequent payments ." See id. at 1013-14 (Shepherd, J., concurring) (distinguishing Collazo from the decisions in Bartram and Beauvais, Judge Shepherd explained that, unlike the latter two cases, here, the bank did not base the alleged default on a default date within the five-year limitations period for bringing the action under section 95.11(2)(c) of the Florida Statutes. Instead, the bank "doubled down on a stale default date outside the limitations period.").

C. Dhanasar v. JPMorgan Chase Bank, N.A.

In Dhanasar, JPMorgan Chase's predecessor in interest sent the defendant a notice of default letter on June 18, 2008, asserting that the defendant was in default for failing to make her April 2008 mortgage payment and providing a thirty-day cure provision to avoid acceleration of the total balance. 201 So.3d at 826. However, no further action or proceedings were initiated based on the notice of default letter. Id. Subsequently, JPMorgan Chase, filed a foreclosure complaint on August 31, 2013, alleging that the defendant "failed to pay the April 2008 payment and all subsequent payments." Id.

The trial court ultimately entered a final judgment of foreclosure against the defendant. Id. This Court affirmed the trial court's decision and explicitly relied on the en banc decision in Beauvais. Thus, we held that because JPMorgan's complaint specifically alleged that Dhanasar had failed to pay the April 2008 payment and all subsequent payments and was filed within five years of a default payment, the action survived the asserted statute of limitations bar. Id. (emphasis in original).

D. Bartram v. U.S. Bank N.A.

In Bartram, U.S. Bank filed a foreclosure complaint on May 16, 2006 based on Bartram's failure to make payments on a mortgage from January 1, 2006 to the date of the complaint. 211 So.3d at 1014. The complaint also declared the full amount payable under the mortgage and note to be due. Id. However, the action was involuntarily dismissed after U.S. Bank failed to appear at a case management conference. Id. Approximately one year after the dismissal of the foreclosure action and almost six years after U.S. Bank filed its initial foreclosure complaint, Bartram filed a crossclaim against U.S. Bank in a separate foreclosure action brought by Bartram's former wife. Id. at 1015. Bartram's crossclaim sought a declaratory judgment to cancel the mortgage and quiet title to the subject property, asserting that the statute of limitations prevented U.S. Bank from bringing another foreclosure action. Id.

The trial court agreed with Bartram, cancelled the note and mortgage, and released U.S. Bank's lien on the property. Id. The Fifth District Court of Appeal reversed on appeal, holding that a default occurring after a failed foreclosure attempt creates a new cause of action for statute of limitations purposes, even where acceleration had been triggered and the first case was dismissed on the merits. Id.

Pursuant to Article V, section 3 of the Florida Constitution, the Fifth District certified a question of great public importance which the Supreme Court rephrased as:

DOES ACCELERATION OF PAYMENTS DUE UNDER A RESIDENTIAL NOTE AND MORTGAGE WITH A REINSTATEMENT PROVISION IN A FORECLOSURE ACTION THAT WAS DISMISSED PURSUANT TO RULE 1.420(B), FLORIDA RULES OF CIVIL PROCEDURE, TRIGGER APPLICATION OF THE STATUTE OF LIMITATIONS TO PREVENT A SUBSEQUENT FORECLOSURE ACTION BY THE MORTGAGEE BASED ON PAYMENT DEFAULTS OCCURRING SUBSEQUENT TO DISMISSAL OF THE FIRST FORECLOSURE SUIT?

Bartram, 211 So.3d at 1012. The Florida Supreme Court concluded that "with each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage." Id. at 1019.

E. The Instant Case and Subsequent Case Law

Here, U.S. Bank filed its foreclosure complaint on July 28, 2014 alleging a payment default date on October 1, 2008 and "all subsequent payments." Accordingly, U.S. Bank's action is not barred by the five-year statute of limitations. See Klebanoff v. Bank of N.Y. Mellon, 228 So.3d 167, 167-68 (Fla. 5th DCA 2017) (opinion issued on June 30, 2017, clarifying its previous opinion in Hicks v. Wells Fargo Bank, N.A., 178 So.3d 957, 959 (Fla. 5th DCA 2015), noting that Hicks is consistent with Collazo, and holding that because the bank alleged and proved a default "for the March 1, 2009 payment and all subsequent payments due thereafter," the foreclosure action filed on June 26, 2014 was not barred by the statute of limitations); Kebreau v. Bayview Loan Servicing, LLC, 225 So.3d 255, 256 (Fla. 4th DCA 2017) (opinion issued on July 12, 2017 holding that the foreclosure complaint was not barred by the five-year statute of limitations because it "alleged continuing defaults"); Anton, 230 So.3d at 504 (opinion issued on August 30, 2017, holding that "[g]iven the allegation that Anton failed to make all subsequent payments, the mere fact that the second foreclosure complaint alleged the same initial default date as that alleged in the first foreclosure complaint (i.e., August 1, 2008), is of no moment: by alleging that Anton failed to make the payment due on August 1, 2008 'and all subsequent payments,' the action alleged a series of defaults by Anton on all payments due beginning on August 1, 2008 and continuing up to the date of the filing of the second foreclosure action on December 19, 2014").

More recently, in an opinion issued on October 12, 2017, the Florida Supreme Court in Bollettieri, 228 So.3d 72, declined review of Bollettieri Resort Villas Condominium Ass'n v. Bank of New York Mellon, 198 So.3d 1140 (Fla. 2d DCA 2016), which certified conflict with Hicks, 178 So.3d at 957, 959 (reversing a final judgment of foreclosure and remanding for dismissal of the complaint with prejudice when the complaint was "based on a default that occurred outside of the five-year statute of limitations period"), after consideration of the subsequent opinions in Klebanoff, Kebreau, and Forero v. Green Tree Servicing, LLC, 223 So.3d 440, 443-44 (Fla. 1st DCA 2017) (foreclosure action not barred by the statute of limitations where "[i]n this case and the two previous, dismissed cases, the period of default alleged is open-ended-'December 1, 2008 and all subsequent payments.' ").

Finally, in Rendon, this Court reversed the trial court's entry of final summary judgment in favor of the borrower on the grounds that the lender's foreclosure action was filed outside the applicable statute of limitations found in section 95.11(2)(c) of the Florida Statutes. 2018 WL 1832582, at *1 (emphasis in original) ("Because Wells Fargo's complaint specifically alleged that Rendon missed the February 1, 2009 payment and 'all subsequent payments ' [ ], Wells Fargo's complaint survived the alleged expiration of the statute of limitations.").

III. CONCLUSION

It is now settled law that a when a foreclosure complaint alleges a borrower is in default for any payment due within five years of the filing of the complaint, the action is not barred by section 95.11(2)(c) of the Florida Statutes. Accordingly, because the complaint in the instant appeal so alleged, we reverse the final judgment of dismissal and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      On February 21, 2013, Lakes of the Meadow Recovery, Inc. purchased the subject real property at a foreclosure sale. A certificate of title reflecting such was recorded on March 7, 2013 in Official Records Book 28519, Page 4112 of the Public Records of Miami-Dade County, Florida.

      In general, appellate courts are bound to apply decisional law as it exists at the time of appeal. See Lowe v. Price, 437 So.2d 142, 144 (Fla. 1983) (citations omitted) ("Decisional law and rules in effect at the time an appeal is decided govern the case even if there has been a change since time of trial."); see also Bank of N.Y. Mellon Corp. v. Anton, 230 So.3d 502, 503 n.1 (Fla. 3d DCA 2017).


author: PER CURIAM.

text:
    Mel Roucell WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-742
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 8, 2018
    James S. Purdy, Public Defender, and Nicole Joanne Martingano, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Mel Roucell Williams appeals his sentence for burglary of an unoccupied structure, arguing that the trial court incorrectly believed that it was required to sentence him to a minimum of ten years' incarceration as a violent career criminal. Based upon the record before us, we reverse and remand for resentencing.

After the jury returned its guilty verdict, the State proceeded to have Williams sentenced as a violent career criminal pursuant to section 775.084, Florida Statutes (2017). Under section 775.084, a trial court "shall sentence the violent career criminal ... [i]n the case of a felony of the third degree, for a term of years not exceeding 15, with a mandatory minimum term of 10 years' imprisonment." § 775.084(4)(d), Fla. Stat. (2017). "[T]o be sentenced as a violent career criminal, a defendant must have been previously incarcerated in state or federal prison, must have been convicted three times as an adult of certain violent felonies (listed in the statute), and must have committed another such offense within the above time frame." Clines v. State, 912 So.2d 550, 553 (Fla. 2005) (citing § 775.084(1)(d), Fla. Stat. (2002) ). However, if a trial court finds "that it is not necessary for the protection of the public to sentence a defendant who meets the criteria for sentencing as a ... violent career criminal, ... sentence shall be imposed without regard to this section." § 775.084(4)(e), Fla. Stat. (2017). Therefore, a trial court has the discretion not to sentence a defendant as a violent career criminal if it determines that such a sentence is not necessary for the protection of the public. See Harris v. State, 849 So.2d 449, 450 (Fla. 3d DCA 2003) ("[T]he trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established. The trial court actually had discretion, per Section 775.084(4)(d), Florida Statutes (2000), to determine whether the ... classification, and enhanced sentence, is necessary for the protection of the public.").

The transcript of Williams's sentencing hearing indicates that the trial court may have been unaware that it had this discretion. During the hearing, the trial court discussed the issue:

THE COURT: Yeah. And I haven't heard any justification that would allow me not to find that Mr. Williams does qualify as a violent career criminal based on the evidence and the testimony that I've seen today.
And given the statute, 775.084 requires me to sentence you, Mr. Williams, to at least 10 years, and it does seem like a lot of time to do, but the Legislature didn't give me any discretion, so that's what I have to do, sir, is to sentence you to 10 years. It's the minimum that I'm allowed to, and that's what I'm going to sentence you to.

This exchange indicates that the trial court may have believed that it was required to sentence Williams as a violent career criminal based upon his qualifying convictions regardless of whether such a sentence was necessary for the protection of the public.

We therefore reverse and remand for the trial court to make a determination as to whether it is necessary for Williams to be sentenced as a violent career criminal for the protection of the public and to impose a sentence accordingly. See Goldwire v. State, 73 So.3d 844, 846 (Fla. 4th DCA 2011) ("This court has stated that where 'the record suggests that the trial court mistakenly believed it had no discretion ... to sentence appellant,' the case should be remanded for 'the trial court [to] exercise its sentencing discretion and consider all sentencing alternatives.' "); Soanes v. State, 31 So.3d 914, 914 (Fla. 4th DCA 2010) ("[T]he trial court erred during sentencing when it stated that it did not think it had any discretion other than to sentence the defendant to life in prison as a violent career criminal.").

REVERSED and REMANDED.

SAWAYA, PALMER and TORPY, JJ., concur.


author: EVANDER, J.

text:
    Richard EASTER, on Behalf of Himself and All Other Persons Similarly Situated, Appellant, v. CITY OF ORLANDO, Appellee.
    Case No. 5D17-276
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 8, 2018
    David M. Kerner and Jason E. Weisser, of Schuler, Halvorson, Weisser, Zoeller & Overbeck, P.A., and Andrew A. Harris, of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    Vincent Falcone III, David B. King, and Thomas A. Zehnder, of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, for Appellee.
    Stephen F. Rosenthal, of Podhurst Orseck, P.A., Miami, for Amicus Curiae Florida Justice Association.
   EVANDER, J.

In this class action suit seeking refunds for fines paid pursuant to an unconstitutional red-light camera ordinance, the class representative, Richard Easter, appeals a non-final order denying his motion to certify the class. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi). In denying Easter's motion, the trial court found that Easter had failed to establish certain requirements for class certification-commonality, typicality, predominance, and superiority. The court's findings on these factors were based, in large part, on its determination that the voluntary payment defense applies to this case. The voluntary payment defense provides that "where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered." City of Miami v. Keton , 115 So.2d 547, 551 (Fla. 1959). On appeal, Easter argues that the voluntary payment defense is inapplicable under the facts of this case and that the trial court erred in denying his motion to certify the class. We affirm.

Procedural and Factual Background

This case concerns an ordinance ("the Ordinance") adopted by the City of Orlando ("the City") that authorized the use of cameras to record vehicles that failed to properly stop at red lights. In addition to authorizing civil fines, the Ordinance authorized city-appointed hearing officers to assess administrative charges against a vehicle owner in the amount of the City's costs if the owner's appeal was denied.

The City issued 49,423 notices of infraction under the Ordinance. Of those vehicle owners who were issued citations, 35,851 paid the fines without appeal, while 378 filed notices of appeal. Most people who appealed raised factual challenges; less than ten percent raised legal challenges. Of those people whose appeals were not summarily granted, 174 attended a scheduled hearing, while 51 abandoned their appeals by paying their fines without a hearing.

In August 2009, Naveel Nasari filed a class action suit against the City and the company administering the program, seeking: (1) a declaration that the Ordinance was preempted by state law, (2) an injunction from further enforcement, and (3) class damages for various claims including unjust enrichment. Michael Udowychenko subsequently replaced Nasari as the class representative. The trial court later entered a final order determining that the Ordinance was invalid because it was preempted by state law and otherwise conflicted with state statutes. This Court affirmed the trial court's decision in City of Orlando v. Udowychenko , 98 So.3d 589 (Fla. 5th DCA 2012). In doing so, we certified conflict with City of Aventura v. Masone , 89 So.3d 233 (Fla. 3d DCA 2011), where our sister court upheld the validity of a similar red-light camera ordinance. In a footnote, we noted that Udowychenko's motion to certify the class had been denied:

This was initially a class action suit. Udowychenko's motion to certify the class was denied. The court noted that only Udowychenko had filed an action to challenge the ordinance and that others who paid the fine most likely would be barred by the doctrine of voluntary payment.

Udowychenko , 98 So.3d at 592 n.3. Because that denial was not challenged on appeal, we did not address it further.

In April 2010, the City sent Easter a notice of infraction of the Ordinance. He filed a notice of appeal, arguing, in part, that the Ordinance was unlawful. After a hearing officer upheld the infraction, Easter paid the fine. Thereafter, Easter filed the instant class action suit against the City. In November 2012, the parties filed a joint motion to stay proceedings pending resolution of the Udowychenko and Masone cases in the Florida Supreme Court.

The conflict between Udowychenko and Masone was resolved by the Florida Supreme Court in Masone v. City of Aventura , 147 So.3d 492 (Fla. 2014). There, in a 5-2 decision, the court held that both cities' ordinances were expressly preempted by state law. After the resolution of Udowychenko and Masone , and after engaging in discovery, Easter filed his motion to certify class. The trial court relied on the Florida Supreme Court's decision in Keton to conclude that the voluntary payment defense would be applicable in the instant case, stating, "[T]he Florida Supreme Court has long held that the doctrine applies when a local government imposes a fine later found preempted."

Voluntary Payment Defense

On appeal, Easter argues that it was error for the trial court to rely on the application of the voluntary payment defense in denying his motion for class certification. We disagree.

The voluntary payment defense has existed in Florida for over a century. In 1887, the Florida Supreme Court noted that "money voluntarily paid upon claim of right, with full knowledge of all the facts, cannot be recovered back merely because the party, at the time of payment, was ignorant, or mistook the law, as to his liability." Jefferson Cty. v. Hawkins , 23 Fla. 223, 2 So. 362, 365 (1887). The court went on to state that the illegality of the demand for payment does not, by itself, provide grounds for relief. Id. Rather, there must also be a showing of "some compulsion or coercion attending its assertion which controls the conduct of the party making the payment." Id.

The Florida Supreme Court has reaffirmed the viability of the voluntary payment defense in later cases. See, e.g., Keton , 115 So.2d at 551 ("The rule seems to be universal that where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered."); Pacific Mut. Life Ins. Co. of Cal. v. McCaskill , 126 Fla. 82, 170 So. 579, 582 (1936) ("The general rule is that money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment, cannot be recovered back on the ground that the claim was illegal, or that there was no liability to pay in the first instance.").

In Keton , Dade County adopted an ordinance pursuant to article VIII, section 11 of the Florida Constitution that "nullified all municipal ordinances attempting to regulate traffic." 115 So.2d at 548. The City of Miami nevertheless continued to impose traffic fines under its ordinances. Id. at 549. Two classes of drivers challenged the fines: (1) drivers who were cited, tried, and convicted for infractions, and (2) drivers who paid fines without a hearing. Id. After determining that the ordinance was invalid based on the preemption doctrine, the court concluded that neither class could recover their previously paid fines. Id. at 551. In applying the voluntary payment defense to bar the class claims, the court noted that there had been no showing that any of the payments "were made under protest." Id.

In City of Hollywood v. Miller , 471 So.2d 655 (Fla. 4th DCA 1985), our sister court referenced Keton in reversing a final summary judgment entered in a class action in favor of an individual challenging the procedural due process elements of a city parking ordinance. After concluding that the city's ordinance provided adequate due process for those contesting parking citations, the court noted that Keton would have nevertheless barred the plaintiff's claim for a refund of amounts already paid:

Lastly, we note that even if [plaintiff] had been deprived of due process, under City of Miami v. Keton , 115 So.2d 547 (Fla. 1959), he would be precluded on these facts from any recovery.

Id. at 656.

Subsequent to Keton , our court has recognized the continued viability of the voluntary payment defense. See, e.g. , Chateau Cmtys., Inc. v. Ludtke , 783 So.2d 1227, 1231 (Fla. 5th DCA 2001) ("Equally individual are each tenant's claim of coercion and available defenses such as voluntary payment."); Hall v. Humana Hosp. Daytona Beach , 686 So.2d 653, 658 (Fla. 5th DCA 1996) (holding that statute did not bar hospital from asserting voluntary payment defense). The purpose of the voluntary payment doctrine is to promote stability in transactions so that the entity receiving payment may rely upon payments without protest to use those funds in future activities, without fear of a claim of reimbursement by the payor. Roadepot, LLC v. Home Depot, USA, Inc. , 163 A.3d 513, 523 (R.I. 2017) (citing Putnam v. Time Warner Cable of Se. Wis., Ltd. P'ship , 255 Wis.2d 447, 649 N.W.2d 626, 633 (2002) ).

Easter argues that the trial court's reliance on the voluntary payment defense is "inconsistent with post- Keton Supreme Court precedent." He cites primarily to the Florida Supreme Court's decision in Department of Revenue v. Kuhnlein , 646 So.2d 717 (Fla. 1994), where the court addressed the validity of a Florida Statute that imposed impact fees on cars purchased or titled in other states but subsequently registered in-state by Florida residents. After determining that the impact fee constituted an illegal tax, the court concluded that a full refund to those who had paid the impact fee was the appropriate remedy. Id. at 726. Kuhnlein is distinguishable from Keton because Kuhnlein involves the imposition of a tax, not a traffic fine. In Florida, the common law voluntary payment defense has been supplanted by statutes authorizing refunds for taxes paid in many situations. See, e.g. , § 197.182(1)(a), Fla. Stat. (2011) (authorizing Department of Revenue to order refunds if payment of taxes assessed on county's tax rolls "has been made voluntarily or involuntarily" in specified circumstances); § 215.26, Fla. Stat. (2011) (authorizing chief financial officer to refund certain monies paid into state treasury, including "overpayment of any tax, license, or account due" and "payment where no tax, license, or account is due"). Indeed, in Department of Revenue v. Nemeth , 733 So.2d 970, 973 (Fla. 1999), the court stated that the Kuhnlein decision established "that in cases where the plaintiff is challenging the unconstitutionality of an involuntarily paid tax and seeking a refund for the same the taxpayer need not comply with the 'administrative' requirements in section 215.26." (Emphasis added).

Significantly, the Kuhnlein opinion did not reference Keton or the voluntary payment defense. The Florida Supreme Court has made clear that it does not overrule itself sub silentio :

We take this opportunity to expressly state that this Court does not intentionally overrule itself sub silentio. Where a court encounters an express holding from this Court on a specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to apply our express holding in the former decision until such time as this Court recedes from the express holding.

Puryear v. State , 810 So.2d 901, 905 (Fla. 2002).

Accordingly, we agree with the trial court that Keton is controlling in the instant case and, thus, it was proper for the trial court to consider the application of the voluntary payment defense in determining whether to grant Easter's motion to certify the class.

Class Certification

A trial court's decision to grant or deny class certification is reviewed for an abuse of discretion. Sosa v. Safeway Premium Fin. Co. , 73 So.3d 91, 102-03 (Fla. 2011). However, we examine a trial court's factual findings for competent, substantial evidence, and review conclusions of law de novo. Discount Sleep of Ocala, LLC v. City of Ocala , 245 So.3d 842, 848-49, 2018 WL 300228 (Fla. 5th DCA Jan. 5, 2018).

Class actions in Florida are governed by Florida Rule of Civil Procedure 1.220. The class proponent has the burden to prove four prerequisites to class certification under rule 1.220(a) :

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

Fla. R. Civ. P. 1.220(a) ; Terry L. Braun, P.A. v. Campbell , 827 So.2d 261, 265-66 (Fla. 5th DCA 2002). These four prerequisites are referred to as numerosity, commonality, typicality, and adequacy. Terry L. Braun, P.A. , 827 So.2d at 266. In addition to satisfying the four prerequisites in rule 1.220(a), the class proponent must prove one of three requirements in subsection (b) of the rule. Discount Sleep , 245 So.3d at 850. Easter sought certification under subsection (b)(3), which requires that

[q]uestions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.

Fla. R. Civ. P. 1.220(b)(3). These requirements are known as the predominance and superiority requirements. Terry L. Braun, P.A. , 827 So.2d at 269. As the class proponent, Easter had the burden to establish each and every element required by rule 1.220. Id. A class action may be certified only after the trial court determines after "rigorous analysis" that the elements of the class action rules have been satisfied. Id. We find no error in the trial court's determination that Easter failed to establish the commonality, typicality, predominance, and superiority elements.

Before addressing these elements individually, it is significant to note that Easter filed his motion to certify the class after the Florida Supreme Court had determined that the Ordinance was invalid. As a result, there was no longer an issue as to whether the City had improperly imposed fines against potential class members. It had. The primary issue became whether the City was required to refund monies paid, notwithstanding the fact that fines had been improperly imposed in the first place. The City's primary defense against a timely claim for refund would be the voluntary payment defense.

To establish the commonality requirement, the class proponent must establish that its claim or defense "raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class." Fla. R. Civ. P. 1.220(a). The primary concern in a consideration of commonality is whether the representative's claim arises from the same practice or course of conduct that gave rise to the remaining claims and whether the claims are based on the same legal theory. Sosa , 73 So.3d at 107. However, the court may also consider the application of defenses in analyzing the commonality element. Id. at 109. Here, because the issue of whether the City improperly assessed fines under the Ordinance has been resolved, the trial court would be called upon to determine whether each class member's claim was precluded by the voluntary payment defense. In considering the application of the voluntary payment defense, Easter's course of conduct was significantly different than that of virtually all other members of the proposed class. Specifically, Easter paid his fine under protest after raising a legal challenge to the validity of the Ordinance. As a result, the trial court could properly conclude that the questions of law or fact that would need to be addressed on Easter's claim are not common to the questions of law or fact that would need to be addressed on the claims of other proposed class members.

To establish the typicality requirement, the class proponent must establish that its claim or defense is typical of the claim or defense of each member of the class. Fla. R. Civ. P. 1.220(a). Although the focus is usually whether the class representative has the same legal interest and has endured the same legal injury as the class members, Sosa , 73 So.3d at 114-15, courts may consider the applicability of defenses in determining typicality. See Wyeth, Inc. v. Gottlieb , 930 So.2d 635, 643 (Fla. 3d DCA 2006) ("Since factual differences among the class members' claims and the defenses which Wyeth can assert vary depending on each plaintiff's individual circumstances and conditions, Ms. Gottlieb's claims are not typical of the class."); Seminole Cty. v. Tivoli Orlando Assocs. Ltd. , 920 So.2d 818, 823 (Fla. 5th DCA 2006) (holding plaintiff failed to satisfy typicality requirement where it presented no evidence and complaint alleged plaintiff "was the only developer described in the claim, the only developer to pay under protest, and the only developer to challenge the fees"); Mathieson v. Gen. Motors Corp. , 529 So.2d 761, 762 (Fla. 3d DCA 1988) ("A claim is not representative where the defenses of each plaintiff would be dependent on different facts and circumstances."). Easter made significant efforts to contest his fine, prior to eventually making payment under protest. By contrast, most of the proposed class members simply paid the fine. Accordingly, the trial court could properly conclude that Easter's claim was not typical of the claims of the other class members.

To establish the predominance element, the class proponent must establish that "the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class." Fla. R. Civ. P. 1.220(b)(3). The Florida Supreme Court has observed that the determination of whether a party has shown actual compulsion or coercion sufficient to overcome the voluntary payment defense normally requires an individualized, fact-intensive inquiry. See Pacific Mut. Life Ins. Co. of Cal. , 170 So. at 583 (stating that because of difficulty in setting forth a definite and exact rule of universal application to determine whether a payment is voluntary or involuntary, each case "must depend somewhat upon its own peculiar facts"); see also Chateau Cmtys., Inc. , 783 So.2d at 1231 (reversing certification of class members where plaintiff's claims, as pled, were not suitable for class action; stating "[e]qually individual are each tenant's claim of coercion and available defenses such as voluntary payment").

Here, the application of the voluntary payment defense doctrine supports the trial court's conclusion that Easter failed to prove the predominance element. In discussing predominance, the trial judge noted that even if those proposed class members who "objected to their fines but did not seek judicial relief" were not immediately barred, overcoming the voluntary payment defense would require a "highly individualized" determination regarding the nature of the objection, the extent to which each person pursued the objection, and whether the potential penalties compelled or coerced payment from that person. Thus, the trial court could properly conclude that in determining whether the City was required to pay refunds to potential claimants, individual issues would predominate over common issues.

To establish the superiority requirement, the class proponent must establish that class representation "is superior to other available methods for the fair and efficient adjudication of the controversy." Fla. R. Civ. P. 1.220(b)(3). In affirming the trial court's conclusion that Easter failed to establish the superiority element, we find it appropriate to quote from Judge Frederick Lauten's order denying the motion to certify class in the Udowychenko case:

If Plaintiff's putative class is certified, all drivers cited under the Ordinance would be included in the class and be entitled to class notice, a time consuming and expensive proposition. Only later, after unnecessary consumption of party and judicial resources, would the other members of the class very likely be told that, pursuant to binding Florida Supreme Court precedent in Keaton [sic], they are unable to recover the fines they paid because of the voluntary payment defense. Surely the law does not require such a pointless, time-consuming and fruitless action. In some ways, there is a certain cruelty to Plaintiff's argument when he asserts that the Court should ignore the voluntary payment doctrine, certify the class with the attendant effect of raising hopes that notified class members only to later announce to them that they voluntarily paid their fines and are not equally entitled to relief.

AFFIRMED.

BERGER and EDWARDS, JJ., concur.

      The Ordinance also authorized a penalty for nonpayment of a fine, requiring the City to deny the vehicle owner the "right to obtain and maintain any city permits or licenses, including, but not limited to, occupational licenses (business tax receipts) and building permits until the civil fine and any assessed costs of appeal were paid in full." However, the City did not list the denial of city licenses or permits as a nonpayment penalty in the notices of infraction, and it never imposed such penalties.

      A showing that the payor made a legal protest is not required where the penalty for nonpayment "is so severe that it constitutes coercion and duress." Broward Cty., Fla. Bd. of Cty. Comm'rs v. Burnstein , 470 So.2d 793, 795 (Fla. 4th DCA 1985). In the instant case, Easter has not argued that the penalties for nonpayment were so severe that they negated the protest requirement.

      The United States Supreme Court has noted that Florida has a "longstanding practice of permitting taxpayers to seek refunds under § 215.26 for taxes paid under an unconstitutional statute." Newsweek, Inc. v. Fla. Dep't of Rev. , 522 U.S. 442, 444, 118 S.Ct. 904, 139 L.Ed.2d 888 (1998).


author: BLACK, Judge.

text:
    The BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee FOR The CERTIFICATEHOLDERS CWALT, INC., Alternative Loan Trust 2006-18CB, Mortgage Pass-Through Certificates, Series 2006-18CB, Appellant, v. HOA RESCUE FUND, LLC, as Trustee under the 12122 Fox Bloom Avenue Trust Dated 2/21/2012; Henry Barahona; Yanira Lagos; South Bay Lakes Homeowners Association, Inc.; and Bank of America, N.A., Appellees.
    Case No. 2D17-3291
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP, West Palm Beach, for Appellant.
    Robert E. Biasotti of Biasotti Law, St. Petersburg, for Appellee HOA Rescue Fund, LLC.
    No appearance for remaining Appellees.
   BLACK, Judge.

The Bank of New York Mellon f/k/a The Bank of New York as Trustee for the Certifcateholders CWALT, Inc., Alternative Loan Trust 2006-18CB, Mortgage Pass-Through Certificates, Series 2006-18CB (the Bank), challenges the involuntary dismissal of its foreclosure action. We reverse and remand for further proceedings.

On June 23, 2009, the Bank filed its notice of lis pendens and foreclosure complaint, naming the mortgagors and the South Bay Lakes Homeowners Association as defendants. A default was entered against the mortgagors. In January 2012, while the Bank's foreclosure action was pending, HOA Rescue Fund, LLC, as Trustee under the 12122 Fox Bloom Avenue Trust dated 2/12/2012, purchased the property at the foreclosure sale resulting from South Bay Lakes Homeowners Association's lien foreclosure action. Importantly, South Bay Lakes' lien was recorded in December 2009, six months after the recordation of the Bank's lis pendens.

Subsequently, HOA Rescue moved to intervene in the Bank's foreclosure action. Over the Bank's objection, HOA Rescue's motion was granted. HOA Rescue then filed an answer and affirmative defenses, raising the Bank's lack of standing as a defense.

A nonjury trial was held in February 2017; only the Bank and HOA Rescue appeared. The Bank noted that HOA Rescue was a third-party purchaser and would therefore be "limited" in what it could object to during trial. The court was asked to take judicial notice of the court file, which it did. Additionally, prior to calling its only witness, the Bank sought to introduce into evidence the original note and mortgage at issue, as well as the assignment of the mortgage, two certified limited powers of attorney, and certified copies of the pooling and servicing agreement (PSA) and mortgage loan schedule for the subject mortgage. Over objection, the court admitted all of the documents. The note bears three indorsements: the first is from Greenpoint Mortgage Funding, Inc., the original lender, to Countrywide Bank, N.A; the second is from Countrywide Bank, N.A., to Countrywide Home Loans, Inc.; and the third is a blank indorsement from Countrywide Home Loans, Inc. The assignment of mortgage, dated July 15, 2009, assigns the note and mortgage from Countrywide Home Loans, Inc., to the Bank, as Trustee, and provides an effective date of May 4, 2009. The PSA was executed on May 1, 2006, with a closing date of May 30, 2006, by and between Countrywide Home Loans, Inc., and the Bank, as Trustee. The PSA identifies mortgage pass-through certificates series 2006-18CB to include the mortgage at issue.

Following the introduction into evidence of these documents, the Bank called one witness, a litigation foreclosure specialist for the loan servicer. The witness testified that the PSA identifies the loan in question by loan number, city, property location, purchase amount, and several other things which all "match." She also testified that the PSA "shows, on the title page, that this involves Countrywide Home Loans, which is one [i]ndorsement on the note and ... speaks for itself," as to the timing of the indorsement.

After all evidence had been presented, HOA Rescue moved for an involuntary dismissal based on the Bank's failure to establish its standing at the inception of the action. The court granted the motion and dismissed the foreclosure action "without prejudice," stating that the Bank could "try again."

The Bank now seeks reversal of the dismissal, arguing both that HOA Rescue was improperly permitted to intervene in the action and participate in trial and that the Bank sufficiently established standing and a prima facie case for foreclosure.

As this court has previously held, while it is preferable for the trial court to enter a final judgment at the conclusion of a nonjury trial, an order granting a motion for involuntary dismissal in such instances is an appealable final order. See Ventures Tr. 2013-I-H-R v. Asset Acquisitions & Holdings Tr., 202 So.3d 939, 940 n.1 (Fla. 2d DCA 2016). Our review is de novo. Id. at 942.

The law is clear that HOA Rescue should not have been permitted to intervene in the case. A purchaser of property that is the subject of a pending foreclosure action in which a lis pendens has previously been recorded is not entitled to intervene in that foreclosure action. Bonafide Props. v. Wells Fargo Bank, N.A., 198 So.3d 694, 695 (Fla. 2d DCA 2016) (citing cases). Accordingly, HOA Rescue was improperly permitted to participate in and defend the foreclosure suit, and the court improperly granted its motion to dismiss. See Bank of Am., N.A. v. Mirabella Owners' Ass'n, 238 So.3d 405, 407 (Fla. 1st DCA Jan. 29, 2018) (holding that because the purchaser pendente lite was not a proper party to the foreclosure action, "the trial court erred in granting its motions to dismiss the case").

Moreover, HOA Rescue purchased the property subject to a superior interest; its subordinate interest is limited, and notwithstanding the improper intervention, HOA Rescue should not have been permitted to participate as though it "were a party to the note and mortgage." See Wells Fargo Bank, N.A. v. Rutledge, 230 So.3d 550, 552 (Fla. 2d DCA 2017) ; cf. Pealer v. Wilmington Tr. Nat'l Ass'n, 212 So.3d 1137, 1139 (Fla. 2d DCA 2017) (Sleet, J., Concurring) (stating that indispensable third-party purchasers "may participate in the bank's foreclosure proceedings only to the extent that they plan to exercise their statutory right of redemption and prevent the forced sale of the property"). HOA Rescue, a purchaser pendente lite, "like any intervenor, 'must take the suit as [it] finds it.' " Ventures Trust, 202 So.3d at 943 (alteration in original) (quoting Coast Cities Coaches, Inc. v. Dade County, 178 So.2d 703, 706 (Fla. 1965) ); accord State Tr. Realty, LLC v. Deutsche Bank Nat'l Tr. Co. Ams., 207 So.3d 923, 925 (Fla. 4th DCA 2016). It could not contest the Bank's claims against the mortgagors and South Bay Lakes; nor could it "challenge [the] sufficiency of the pleadings or the propriety of the procedure." See State Tr. Realty, 207 So.3d at 925-26 (quoting Krouse v. Palmer, 131 Fla. 444, 179 So. 762, 763 (1938) ).

Accordingly, we reverse the order dismissing the foreclosure action and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CRENSHAW and SLEET, JJ., Concur.

      HOA Rescue does not challenge the court's evidentiary rulings in a cross-appeal; therefore, we make no comment on those rulings. Cf. Miller v. Bank of N.Y. Mellon, 189 So.3d 359, 361-62 (Fla. 4th DCA 2016).


text:
    James Ray PARISH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3219
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    James Ray Parish, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

James Ray Parish challenges the summary denial of his motion to correct sentence filed June 17, 2017. Parish was charged and convicted of first-degree burglary and involuntary sexual battery in 1979. He was sentenced in February 1980 to life in prison on the burglary conviction and to a consecutive fifteen years in prison on the involuntary sexual battery conviction. Parish's judgment and sentences were affirmed on appeal. Parish v. State, 404 So.2d 875 (Fla. 2d DCA 1981) (table decision).

In his motion, filed pursuant to Florida Rule of Criminal Procedure 3.800(a), Parish argued that his fifteen-year consecutive sentence for involuntary sexual battery is illegal because under the law at the time he committed the offenses he could not have been sentenced for both first-degree burglary and involuntary sexual battery where the sexual battery conviction was the predicate offense for the burglary conviction. See Speed v. State, 410 So.2d 980, 981 (Fla. 2d DCA 1982) (relying on State v. Hegstrom, 401 So.2d 1343 (Fla. 1981) ). The postconviction court interpreted Parish's claim as one challenging the involuntary sexual battery conviction, determined that such a claim could only be raised in a motion pursuant to rule 3.850, and denied the claim as untimely filed under that rule.

"[R]ule 3.800(a) is limited to claims that a sentence itself is illegal, without regard to the underlying conviction." Coughlin v. State, 932 So.2d 1224, 1226 (Fla. 2d DCA 2006) (en banc). Thus, where, unlike the facts of Coughlin, correcting an alleged illegal sentence would not require the vacation of the corresponding conviction, and the error is otherwise identifiable on the face of the record, Williams v. State, 957 So.2d 600, 602 (Fla. 2007), the claim is cognizable in a rule 3.800(a) motion. See also Jackson v. State, 650 So.2d 1026, 1027 (Fla. 1st DCA 1995) (reversing dismissal of motion to correct sentence where postconviction court did not address claim that Hegstrom applied, thus making Jackson's sentence for armed robbery illegal).

At the time Parish was charged, the law was that "a court [could] not sentence on lesser included offenses arising out of the same criminal transaction or episode as the higher offense" where the lesser offense was alleged in the charging language of the higher offense.

Ennis v. State, 364 So.2d 497, 500 (Fla. 2d DCA 1978) (citing § 775.021(4), Fla. Stat. (1977) ) (discussing category four lesser included offenses under Brown v. State, 206 So.2d 377 (Fla. 1968) ). In 1979, to convict a defendant of first-degree burglary, the State was required to "plead and prove not only the essential elements of burglary as defined in section 810.02(1), [Florida Statutes (1979),] but also that, in the course of committing the burglary, the defendant either made an assault upon a person" or was armed with a dangerous weapon or explosives. Speed, 410 So.2d at 981. Therefore, unless alleged as an assault, a sexual battery would not allow for reclassification of a burglary charge as was done in Parish's case.

During the pendency of Parish's appeal, the Florida Supreme Court decided Hegstrom, in which the court "determine[d] what punishment our legislature authorized for a single criminal transaction involving two or more separate, statutory offenses." 401 So.2d at 1346. The Hegstrom court determined that where proof of the greater offense "requires, by definition, proof of the predicate [offense], the latter is necessarily an offense included within the former" such that a defendant may be convicted of both offenses but not sentenced on the predicate offense. Id. (citing § 775.021(4), Fla. Stat. (1979) ). Hegstrom was subsequently overruled by State v. Enmund, 476 So.2d 165, 168 (Fla. 1985). However, the sentencing law in effect at the time of the crimes must be applied. Lamore v. State , 86 So.3d 546, 548 (Fla. 2d DCA 2012) ; cf. Wheeler v. State , 344 So.2d 244, 245 (Fla. 1977) ("The decisional law in effect at the time an appeal is decided governs the issues raised on appeal, even where there has been a change of law since the time of trial."). Thus, at the time this court decided Parish's appeal, there was no bar to his conviction for involuntary sexual battery; however, based on the law in effect when he committed the crimes, his sentence for involuntary sexual battery may have been barred. And if barred, the claim of illegal sentence is independent from Parish's conviction such that it should be considered by the postconviction court. See Speed, 410 So.2d at 981 (recognizing the holding of Hegstrom and concluding that Speed could not "be sentenced both for first-degree felony burglary and sexual battery, but [could] be convicted and adjudicated guilty of both"). But see White v. State, 412 So.2d 28 (Fla. 2d DCA 1982) (affirming sentences for first-degree felony burglary and sexual battery without reference to Speed ).

Because the postconviction court did not address Parish's claim that his sentence is illegal without regard to the underlying conviction, we reverse and remand.

Reversed and remanded.

VILLANTI, BLACK, and SALARIO, JJ., Concur.


author: KHOUZAM, Judge.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee, ON BEHALF OF the holders of the J.P. MORGAN MORTGAGE ACQUISITION TRUST 2007-CH1 ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-CH1, Appellant, v. James SHEARD a/k/a James Bell Sheard; Chase Bank USA, National Association f/k/a Chase Manhattan Bank, USA N.A. ; Citibank (South Dakota) NA ; United States of America, Department of the Treasury, Internal Revenue Service; Unknown Tenant #1; Any and All Unknown Parties Claiming by, Through, Under and Against the Named Individual Defendant(s) who are not known to be Dead or Alive, Whether Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants, Appellees.
    Case No. 2D17-1911
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    Joseph T. Kohn and Benjamin B. Brown of Quarles & Brady, LLP, Naples, for Appellant.
    Roy W. Foxall of Roy W. Foxall, P.A., Fort Myers for Appellee James Sheard a/k/a James Bell Sheard.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Deutsche Bank National Trust Company (the Trust) timely appeals the order dismissing its foreclosure action against James Sheard. The court dismissed the suit based on Sheard's claim at trial that he did not receive the default notice letter because the Trust sent it to the wrong address. Regardless of whether it was appropriate for the trial court to consider Sheard's defense in the first place, an issue we do not need to address, the Trust showed substantial compliance with the notice requirements. Accordingly, we reverse and remand for the trial court to enter a final judgment of foreclosure in favor of the Trust.

The record shows that Sheard admitted in response to a request for admissions that the Trust had sent the notice letter and that he had indeed received it. These admissions were never withdrawn or amended. Sheard also failed to provide a witness and exhibit list prior to trial, even though the Trust had sent him a request for a pretrial meeting to exchange exhibits to be used at trial. Despite these circumstances, the main issue at trial became Sheard's defense that he had never received the notice letter because it was sent to the property address instead of his secondary mailing address. The Trust objected to Sheard presenting this defense because he never provided a witness and exhibit list, which would have indicated that Sheard's receipt of the letter was at issue. Perplexingly, the Trust neglected to bring Sheard's admissions on this exact point to the court's attention during trial. Over the Trust's objection, Sheard introduced testimony and documents into evidence in support of his defense. The court ultimately granted Sheard's motion to dismiss based on a finding that the Trust had failed to comply with a condition precedent because the notice of default letter was mailed to the wrong address. On rehearing, the Trust argued that it was unfairly surprised by Sheard's defense in part because of Sheard's admissions. The motion for rehearing was denied.

On appeal, the Trust argues that, for multiple reasons, it was improper for the trial court to allow any evidence on the issue of whether the default letter had been mailed or received. We decline to address this issue because, regardless of whether the defense was appropriately considered, we agree with the Trust that the evidence presented did not support involuntary dismissal. Rather, it showed that the Trust had substantially complied with the notice requirements.

A mortgage is interpreted and applied like any other contract, and, "[i]n Florida, a party's adherence to contractual conditions precedent is evaluated for substantial compliance or substantial performance." Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 13 (Fla. 2d DCA 2015). Paragraph 15 of the mortgage provides that "[a]ny notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means" and "[t]he notice address shall be the Property Address unless Borrower has designated a substitute notice address by notice to Lender." Here, the evidence showed that the Trust had sent the notice letter to the property address. Though there was evidence that Sheard had at one point designated a substitute address, the servicer's records indicated that it was no longer needed. Specifically, the Trust's witness, a case manager for the current servicer, stated that the substitute address used by the prior servicer was no longer necessary and so correspondence was sent to the property address pursuant to paragraph 15 of the mortgage.

This evidence shows that the servicer reasonably relied on its records indicating that the property address was the appropriate notice address. Moreover, the property address was a valid address for Sheard and next door to his secondary address. Under these circumstances, the servicer substantially complied with the notice requirements set forth in the mortgage.

Accordingly, we reverse the circuit court's order dismissing the Trust's foreclosure action against Sheard. And because the Trust otherwise established its right to foreclose, we remand for the trial court to enter a final judgment of foreclosure in the Trust's favor. See Federal Nat. Mortg. Ass'n v. Hawthorne, 197 So.3d at 1241 (Fla. 4th DCA 2016).

Reversed and remanded with instructions.

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