author: VILLANTI, Judge.

text:
    Serap FREDERICK, Appellant, v. Timothy FREDERICK, Appellee.
    Case No. 2D17-3668
    District Court of Appeal of Florida, Second District.
    Opinion filed September 14, 2018
    Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellant.
    Russell G. Marlowe of Russell G. Marlowe, PA, New Port Richey, for Appellee.
   VILLANTI, Judge.

Serap Frederick (the Wife) appeals the amended final judgment that dissolved her marriage to Timothy Frederick (the Husband), raising four issues. First, the Wife argues that the trial court erred in determining the equitable distribution and in finding that the mortgage on the property was a marital debt. Second, the Wife contends that the trial court failed to treat the reduction in the nonmarital property's mortgage debt as a marital asset. Third, the Wife claims that a $23,000 debt should not have been classified as a marital debt. Fourth, the Wife asserts that she was entitled to an award of her attorney's fees and costs.

On appeal, the Wife's appellate counsel advised this court that the final hearing was not reported. Although the absence of a transcript of a final hearing is "usually fatal" to an appellant's claims, Esaw v. Esaw, 965 So.2d 1261, 1264 (Fla. 2d DCA 2007) (citations omitted), "this court may review the final judgment for an error of law apparent on the face of the judgment," Mobley v. Mobley, 18 So.3d 724, 725 (Fla. 2d DCA 2009) (citing Silverman v. Silverman, 940 So.2d 615, 616 (Fla. 2d DCA 2006) ). For the reasons discussed below, the first two issues have merit and require reversal under this standard. But, because the absence of a transcript precludes this court from conducting a substantive review of the remaining issues, we conditionally affirm as to issues three and four.

After being married for nine years, the Husband filed a petition for dissolution of marriage and the Wife filed a counterpetition. Following the final hearing, the trial court entered a detailed final judgment of dissolution that reflected numerous factual findings and conclusions of law. The Wife filed a motion for rehearing, after which the trial court entered an amended final judgment.

According to the amended final judgment, there was no dispute that the Husband owned a house known as the Mitchell Ranch property prior to the parties' marriage. The house was not subject to any mortgage at the time the parties married. During their marriage, the parties obtained a mortgage on the home in the amount of $73,339; however, the Wife's name was not on the promissory note or the deed. Both the Husband and Wife testified that the mortgage was taken out to improve the Mitchell Ranch property. In the amended final judgment, the trial court found that the Husband spent approximately $16,000 of the funds from the mortgage to remodel the floors, windows, and back porch of the property. The Wife testified that she did not receive any money from the mortgage. There were no findings as to what became of the remaining amount and specifically no evidence supporting the funds being used for marital purposes. Hence, we are left with the implication that these funds do not currently exist outside of the equitable distribution, or are in the exclusive possession of the Husband but not the Wife.

According to the amended final judgment, the Husband's appraiser testified that the property was valued at $95,000 when the parties were married and $45,000 at the time the Husband filed for the dissolution of the marriage. The mortgage balance was $65,978.03 when the petition was filed and there was a $7360.97 pay down of the mortgage during the marriage. Both the Husband and Wife's appraisers testified that the value of the property had increased to $63,000 and $71,000, respectively, a few months before the final hearing. However, as was its prerogative, the trial court used its discretion to apply the date of filing value in determining equitable distribution.

Ultimately, the trial court determined that the Mitchell Ranch property was the Husband's nonmarital property, but that the mortgage on the property was a marital debt. Additionally, the trial court held that the Wife was not entitled to a credit for the pay down of the mortgage because the property had decreased in value during the marriage, relying on Kaaa v. Kaaa, 58 So.3d 867 (Fla. 2010). Specifically, the trial court held that "as a result of the negative equity being greater than the [Wife]'s credit for the pay down of the mortgage, there [was] no amount to distribute to the [Wife]."

In the original final judgment, the Wife was not required to make an equalizing payment because the trial court determined that the equitable distribution plan left the parties "in similar net positions given that the [Husband] is solely liable for the mortgage (a marital debt) on the nonmarital Mitchell Ranch property ...." However, after the Wife's motion for rehearing, the trial court sua sponte changed the value of the Mitchell Ranch property from $45,000 to $0 and ordered the Wife to make an equalizing payment to the Husband in the overall amount of $25,185. Importantly, the court made no additional findings to explain this dramatic change. Thus, in doing so, the trial court committed legal error.

We review a trial court's determination as to whether a mortgage is a marital debt using the de novo standard of review. Dravis v. Dravis, 170 So.3d 849, 852 (Fla. 2d DCA 2015). The factual findings necessary for such legal conclusions must be based on competent, substantial evidence. Id. The trial court's equitable distribution decisions are reviewed for an abuse of discretion. Id. at 853. But the trial court's failure to apply the correct legal rule is reviewed as a matter of law. Green v. Green, 788 So.2d 1083, 1085 (Fla. 1st DCA 2001) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980) ).

"Generally stated, equitable distribution of marital assets is a three-step process: (1) identification of marital and nonmarital assets, (2) valuation of marital assets, and (3) distribution of marital assets as statutorily prescribed." Keurst v. Keurst, 202 So.3d 123, 127 (Fla. 2d DCA 2016). The trial court must support each step with findings that identify the marital and nonmarital assets and liabilities and set forth "the value of each marital asset, the responsibility for each liability, and the factors supporting their distribution." Id. (citing § 61.075(3), Fla. Stat. (2013) ).

Under section 61.075, nonmarital assets and liabilities include "[a]ssets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities." § 61.075(6)(b)(1) (emphasis added). See also Steiner v. Steiner, 746 So.2d 1149, 1151 (Fla. 2d DCA 1999) (recognizing that properties purchased during the marriage with proceeds from the sale of nonmarital property acquired before the marriage are nonmarital assets "to the extent that their purchase prices were paid with proceeds that are traceable" to the sale of that premarital property). It is also important to note that a party that signs a mortgage but does not sign the accompanying note cannot be held liable beyond that party's interest in the property. See Flagstar Bank, FSB v. Hochstadt, 405 F. App'x 374, 377 (11th Cir. 2010) (holding that the Wife could not be held liable "over and beyond her interest in the property because she did not sign the accompanying notes"); ROSL, Inc. v. Des Jardins, 756 So.2d 1078, 1079 (Fla. 4th DCA 2000) (holding that a third party is not liable where the third party does not sign the note). Thus, where a liability is incurred in exchange for a nonmarital asset that is directly traceable to one party and that party assumes full financial responsibility, an additional signatory cannot be liable beyond the interest that party has in the property.

In this case, the trial court made conflicting findings in support of designating the mortgage as a marital debt. Nothing in the amended final judgment refutes the Wife's testimony that she did not receive any portion of the funds. Both the Husband and the Wife testified that the mortgage was taken out to improve the Mitchell Ranch property. Even though the trial court found that there was no evidence "of any substantial improvements paid with marital funds during the marriage," the court also found that the Husband used $16,000 of the mortgage funds to remodel the nonmarital property. The trial court further found that the Husband was solely responsible for the repayment of the note because the Wife was not a signatory to the promissory note.

Often a lending institution will require a mortgage to be joined by a spouse in order to place a valid lien on the property in favor of the lending institution. The mere act of signing the mortgage, and thereby waving any potential spousal claim in the event of foreclosure, does not impute liability under the note. See Sudhoff v. Fed. Nat'l Mortg. Ass'n, 942 So.2d 425, 427 (Fla. 5th DCA 2006) ("[B]ecause of its homestead status, Fannie Mae required Mrs. Sudhoff to join in the mortgage, although not the note .... The mortgage made clear that because Mrs. Sudhoff did not sign the note, she was not liable for the debt, but was pledging her interest in the subject property to secure the debt."). Therefore, without evidence the proceeds were used for some marital purpose, it is of no moment in this case that the Wife joined in the mortgage. Under this circumstance, joinder in the mortgage is an accommodation only, and as a matter of law cannot ipso facto determine that the mortgage is a marital liability.

Additionally, the trial court made no findings to support changing the value of the Mitchell Ranch property from $45,000 to $0. In fact, the trial court's ultimate determination that the Mitchell Ranch property had no value was directly contradicted by the parties' appraisers. See Suk v. Chang, 189 So.3d 224, 226 (Fla. 2d DCA 2016) (holding that dissolution judgments that contain internal inconsistencies must be reversed so the inconsistencies can be corrected); Heiny v. Heiny, 113 So.3d 897, 900-01 (Fla. 2d DCA 2013) (reversing as to the property value amount where the undisputed testimony did not support the trial court's finding); Pinder v. Pinder, 750 So.2d 651, 653 (Fla. 2d DCA 1999) (reversing the trial court's conflicting valuation of the nonmarital assets and requiring the trial court to make appropriate findings on remand). This inconsistency is apparent on the face of the judgment and requires reversal.

In summary, the trial court's factual findings do not support its characterization of the mortgage on the nonmarital property as a marital debt. Furthermore, the trial court's determination that the Mitchell Ranch property had no value was clearly erroneous. We therefore reverse the trial court's determination that the mortgage on the Mitchell Ranch property was marital and remand to recalculate the equitable distribution in accordance with this opinion. In making these corrections, the trial court will need to recalculate any equalizing payment and may consider any new evidence concerning the status of the Mitchell Ranch property. See Suk, 189 So.3d at 226.

Concerning the second issue, it is apparent on the face of the record that the trial court erroneously applied Kaaa to reach its determination that the Wife was not entitled to credit for any portion of the $7360.97 pay down of the Mitchell Ranch mortgage. In fact, Kaaa does not apply at all to the circumstances of this case. The trial court's misapplication of Kaaa to determine the pay down value of the Mitchell Ranch property also requires reversal.

As we explained in Somasca v. Somasca, 171 So.3d 780, 782-83 (Fla. 2d DCA 2015), Kaaa addressed "passive, market-driven appreciation in a nonmarital asset, not the payoff of or a reduction in the amount of a mortgage on the property." See also Ballard v. Ballard, 158 So.3d 641, 643 (Fla. 1st DCA 2014) ("The only question at issue in Kaaa was whether passive appreciation in the value of non-marital property by market forces alone constitutes a marital asset subject to distribution ...."). Kaaa did not affect the general rule that when marital assets are used to reduce the mortgage on nonmarital property, the resulting equity increase is considered a marital asset. Ballard, 158 So.3d at 643.

In Somasca, the trial court relied on Kaaa to determine that the wife was not entitled to a credit for the pay down on the mortgage because there was no proof of any appreciation in the value of the property during the marriage. Somasca, 171 So.3d at 782. The husband in Somasca argued that there was no appreciation because the property had decreased in value during the marriage; however, this court rejected that argument, noting that the husband's argument confused "the concept of the appreciation in the overall value of an asset with an enhancement in its equity value." Id. at 781-82. This court further explained:

Granted, the [property] did not appreciate in value during the term of the parties' marriage, but the use of marital funds to pay down the mortgage obviously caused an enhancement in the value of the Husband's equity in the property . Absent the reduction in the amount of the mortgage indebtedness through the payment of marital assets, the net proceeds that the Husband realized from the sale of the [property] would have been reduced by an amount equal to the pay down of the debt. It follows that the resulting increase in the equity value of the [property] was a marital asset subject to equitable distribution.

Id. at 782 (emphasis added).

In Kaaa, the Florida Supreme Court found that paying the mortgage was a prerequisite to enjoying the passive appreciation of the property. 58 So.3d at 871. While the passive appreciation of a nonmarital asset may be regarded as a marital asset under certain circumstances, such as in Kaaa, the converse is not true. That is, the passive depreciation of a nonmarital asset is not a marital liability to be automatically shared equally by the non-owning spouse. Unlike in the first scenario, the depreciated amount, due only to market forces, is irrelevant because the nonmarital property is excluded from the equitable distribution scheme.

Here, as in Somasca, the trial court erred in failing to give the Wife a credit for one-half of the $7360.97 of marital funds used to pay down the Mitchell Ranch mortgage. Although the trial court has discretion to use the date of filing valuation to determine that the property had depreciated in value, the court was not permitted to disregard the equity increase that occurred during the marriage. There is no question that the marital funds in this case were used to pay down the mortgage by $7360.97, resulting in an increase in the value of the Husband's equity in the property. Therefore, we reverse and remand to include the mortgage pay down in the equitable distribution award and to recalculate the equitable distribution as necessary.

As to the third and fourth issues, because the final hearing was not transcribed, we are unable to determine whether the trial court abused its discretion. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it."). Nevertheless, because this case requires a major adjustment to the equitable distribution scheme, the trial court must reconsider both the alimony and the denial of attorney's fees and costs after it has recalculated the financial resources of the parties. See Betts v. Betts, 235 So.3d 958, 959 (Fla. 2d DCA 2017) (holding that, in recalculating the equitable distribution, "[t]he trial court may readdress any portion of the equitable distribution or related alimony calculations as necessary"); Orloff v. Orloff, 67 So.3d 271, 275 (Fla. 2d DCA 2011) (requiring the trial court to reconsider the award for both alimony and attorney's fees and costs after recalculating the equitable distribution) ). Upon remand, if the trial court determines that either party is required to make an equalizing payment, the court must also include findings as to that party's ability to pay. See Abramovic v. Abramovic, 188 So.3d 61, 64 (Fla. 4th DCA 2016) (reversing the trial court's imposition of an equalizing payment plan where the record was "devoid of evidence supporting the former wife's ability to pay").

For the above reasons, we reverse the equitable distribution and remand for the trial court to enter an amended judgment in accordance with this opinion. In all other respects, the amended final judgment is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

KELLY and KHOUZAM, JJ., Concur.


source: Caselaw Access Project

author: COHEN, C.J.

license: Public Domain

text:
    W.D., Father of N.D. and S.D., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-2241
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 5, 2018
    Brenda H. Smith, Umatilla, for Appellant.
    Kelley Schaeffer, Appellate Counsel, Department of Children and Families, Children's Legal Services, Bradenton, for Appellee.
    Thomasina Moore, Statewide Director of Appeals, and Sara E. Goldfarb, Appellate Counsel, Guardian ad Litem Program, Tallahassee, for Guardian ad Litem Program.
   COHEN, C.J.

This case, involving the termination of W.D.'s parental rights to two children, N.D. and S.D., comes to us in an unusual posture. The trial court granted the Department of Children and Family's petition for termination of parental rights. On appeal, the Department suggests the trial court erred in granting its petition. The Guardian ad Litem disagrees and argues that the record supports the trial court's determination. We affirm.

An order terminating parental rights will be upheld if it is supported by clear and convincing evidence. L.F. v. Dep't of Child. & Fams., 888 So.2d 147, 148 (Fla. 5th DCA 2004). The evidence reflected that both parents of the children are admitted addicts. Even after N.D. was born with drugs in her system, requiring her extensive hospitalization, the parents continued to abuse drugs, resulting in S.D. suffering the same fate.

W.D.'s history of drug abuse is long-term and includes convictions in Kentucky for drug trafficking and in Florida for drug possession. The children were initially removed from the parents in 2015. They were found to be dependent, and a case plan was formulated. W.D.'s case plan tasks were to undergo substance abuse evaluation, submit to random drug screens, obtain a biopsychosocial evaluation, complete a parenting class, have suitable housing and income, visit the children, and pay child support. Apart from a few visits with the children, W.D. failed to comply with the case plan.

At the review hearing, the trial court placed the children in a permanent guardianship with their maternal grandmother, finding that neither W.D. nor the children's mother had completed the case plan within a reasonable time. Subsequently, W.D. was arrested again on a series of charges including possession of methamphetamine.

The trial court modified the children's placement after their maternal grandmother returned them to their mother in violation of the guardianship order. The children were then placed into foster care where they have remained.

An amended case plan was entered with concurrent goals of reunification and adoption through termination of parental rights. W.D.'s tasks were identical to those in the first case plan. W.D.'s incarceration impacted his ability to comply with the second case plan.

In 2018, almost three years after the children were removed, the Department filed a petition for termination of parental rights. Both parents were incarcerated at the time of the filing. Following trial, the court terminated W.D.'s and the mother's parental rights.

On appeal, W.D. argues that the court erred in considering his noncompliance with the first case plan. We find no error. W.D. had more than a year before his incarceration to comply with the case plan but made virtually no effort to do so. In evaluating whether termination of his parental rights was supported by the evidence, the trial court needed to determine whether W.D. was likely to substantially comply with the second case plan. § 39.806(1)(e)2., Fla. Stat. (2017). His past history was relevant to that determination. See In re J.B., 923 So.2d 1201, 1207 (Fla. 2d DCA 2006) ("[A] parent's past conduct necessarily has some predicative value as to that parent's likely future conduct ....").

The Legislature designed Chapter 39 to prevent children such as N.D. and S. D. from languishing in foster care. See S.M. v. Fla. Dep't of Child. & Fams., 202 So.3d 769, 781-82 (Fla. 2016) ("The Legislature has also made clear that '[t]ime is of the essence' in providing permanency for children ... if possible, children should be placed in a permanent living situation within one year .... [T]here is a strong policy incentive in achieving permanency for children in care as quickly as possible."); see also Lehman v. Lycoming Cty. Children's Servs. Agency, 458 U.S. 502, 513-14, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982) ("It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current 'home,' ... especially when such uncertainty is prolonged.").

AFFIRMED.

WALLIS and GROSSHANS, JJ., concur.

      Both W.D.'s and the mother's parental rights were terminated, but this appeal relates only to the termination of W.D.'s parental rights.

      At the time of the removal, N.D. was one year old, while S.D. was three days old and still in the hospital.


author: PER CURIAM.

text:
    James CHERRY, III, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-894
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018.
    James Cherry, III, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
   PER CURIAM.

Affirmed. See Thompson v. State, 759 So.2d 650, 655 (Fla. 2000) (observing: "[W]e have previously stated that trial counsel's failure to object to standard jury instructions that have not been invalidated by this Court does not render counsel's performance deficient") (citing Downs v. State, 740 So.2d 506, 518 (Fla. 1999) ).


text:
    Michael R. WILSON, as Personal Representative of the Estate of Brenda L. Gwin, deceased, Appellant, v. PINNACLE HEALTH FACILITIES, XXIII, LP, Appellee.
    Case No. 2D17-5133
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018.
    Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, for Appellant.
    Donna J. Fudge and Caitlin E. Kramer of Fudge Broadwater, P.A., St. Petersburg, for Appellee.
   PER CURIAM.

Michael R. Wilson, as Personal Representative of the Estate of Brenda L. Gwin, appeals an order that stayed the Estate's wrongful death lawsuit against Pinnacle Health Facilities, XXIII, LP (Pinnacle), and that compelled arbitration of their dispute. On appeal, the Estate argues that because Pinnacle neglected to demonstrate that Mr. Wilson possessed the apparent authority to bind Ms. Gwin to Pinnacle's arbitration agreement, the trial court erred by compelling arbitration. After careful review, we agree and reverse the trial court's order staying the Estate's lawsuit and referring the case to arbitration. See Stalley v. Transitional Hosps. Corp. of Tampa, 44 So.3d 627, 633 (Fla. 2d DCA 2010) (reversing the trial court's order compelling arbitration because the record failed to demonstrate that the signatory of an arbitration agreement possessed the apparent authority to sign that arbitration agreement on behalf of the principal).

Reversed and remanded for further proceedings in accordance with this opinion.

KHOUZAM, SALARIO, and BADALAMENTI, JJ., Concur.


author: SALARIO, Judge.

text:
    PROVIDENT FUNDING ASSOCIATES, L.P., Appellant, v. MDTR, as trustee under the 6925 Alta Vista Land Trust and Betty Jean Groves, Appellees.
    Case No. 2D17-337
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018.
    Cynthia L. Comras, David Rosenberg, and Jarrett Cooper of Robertson, Anschutz & Schneid, P.L., Boca Raton, for Appellant.
    Mark P. Stopa, Palmetto, of Stopa Law Firm, Tampa (withdrew after briefing); Isaac Manzo, Orlando, of Manzo & Associates, P.A., Orlando (substituted as counsel of record), for Appellee MDTR, as trustee under the 6925 Alta Vista Land Trust.
    No appearance for remaining Appellee.
   SALARIO, Judge.

This is a residential foreclosure case brought by Provident Funding Associates, L.P., a mortgage servicer, against Betty Groves and MDTR, as trustee under the 6925 Alta Vista Land Trust. Provident appeals from a final order granting MDTR's motion for involuntary dismissal. The trial court incorrectly held that this case is barred by res judicata. We reverse and remand for further proceedings.

I.

In September 2007, Ms. Groves borrowed $110,000 from Provident Funding Group, Inc., which we refer to here as the lender. The debt was evidenced by a note between Provident and Ms. Groves and secured by a mortgage on residential real property in New Port Richey, Florida. At some point, Ms. Groves stopped making regular payments of principal and interest on the loan, which led to two separate civil actions filed by Provident to foreclose on Ms. Groves' mortgage.

The first case was filed on September 22, 2010 and named Provident as plaintiff and Ms. Groves and any unknown parties with an interest in the property secured by the mortgage as defendants. The complaint alleged that Ms. Groves defaulted under the note by failing to make the "October 1, 2008 payment and all payments due thereafter" and sought to foreclose the mortgage. Provident failed to respond to requests for admission Ms. Groves served on it and, by virtue of that failure, was deemed to have admitted that it was not the owner or holder of the note and that it lacked standing to sue for foreclosure. Based on those technical admissions, the trial court entered a final summary judgment in Ms. Groves' favor on May 9, 2012. Provident did not appeal, and a motion for relief from judgment was denied.

On April 1, 2015, Provident filed a second foreclosure case, which is the case that gives rise to this appeal. The complaint names Ms. Groves and MDTR as defendants and alleges that at some point MDTR became the owner of the property secured by the mortgage. It asserts that the note is in default because "the payment due May 1, 2010, and all subsequent payments" have not been made.

MDTR filed an answer and, later and with leave of court, an amended answer to Provident's complaint. The amended answer asserted that MDTR was without knowledge of and was therefore denying all of the allegations of Provident's complaint, including its allegation that MDTR was the owner of the property that was the subject of Provident's mortgage. MDTR also asserted several affirmative defenses, including a defense that Provident's foreclosure action was barred by res judicata.

The trial court held a nonjury trial on January 9, 2017. At the beginning of trial, Provident moved to drop Ms. Groves as a party. The court granted the motion, and the trial proceeded with MDTR as the sole defendant. MDTR requested that the trial court take judicial notice of the complaint and final judgment from the first foreclosure case Provident filed, and without objection, the trial court did so.

The sole witness at the trial was Joseph Tami, a foreclosure operation manager for Provident. Based on Mr. Tami's testimony, the trial court admitted into evidence the original note, which contained an undated, blank endorsement from the lender; the mortgage; a default notice dated December 19, 2014, and addressed to Ms. Groves; and a loan disbursement and payment log. Mr. Tami's testimony also established that the loan was in default as of May 1, 2010. There was no testimony or documentary evidence admitted concerning what interest MDTR had in the property, if any, or the circumstances under which it had acquired that interest.

At the end of Provident's case-in-chief, MDTR moved for an involuntary dismissal. It argued, among other things, that the action was barred by res judicata by virtue of the final judgment in the first foreclosure case and the fact that the complaint in the second case alleged an initial default date (May 1, 2010) before the first case was even filed. The trial court reserved ruling and asked MDTR whether it intended to put on any evidence. MDTR advised that it did not, and the parties continued arguing about involuntary dismissal. The trial court agreed with MDTR and dismissed Provident's claim as barred by res judicata. It expressly declined to address MDTR's other arguments for involuntary dismissal. This is Provident's timely appeal.

II.

We review an order granting a motion for involuntary dismissal de novo. Deutsche Bank Nat'l Tr. Co. v. Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016). We hold that the doctrine of res judicata does not apply here, and that the trial court thus improvidently dismissed the action, because MDTR failed to prove the required element of identity of parties and because the supreme court's decision in Singleton v. Greymar Associates, Inc., 882 So.2d 1004 (Fla. 2004), precludes application of res judicata on the facts that this case presents.

The doctrine of res judicata provides that a judgment on the merits in an earlier suit bars a later suit on the same cause of action between the same parties or others in privity with those parties. Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984) ). It applies when the later suit shares four "identities" with the earlier one: (1) the "identity of the thing sued for," (2) the "identity of the cause of action," (3) the "identity of persons and parties to the action," and (4) the "identity of the quality of the persons for or against whom the claim is made." Bryan v. Fernald, 211 So.3d 333, 335 (Fla. 2d DCA 2017) (quoting Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004) ). Further, courts may decline to apply the doctrine in limited circumstances when it would "defeat the ends of justice." State v. McBride, 848 So.2d 287, 291 (Fla. 2003). Res judicata is an affirmative defense, and the burden of proof is borne by the party asserting it. Fla. R. Civ. P. 1.110(d) ; Nunez v. Alford, 117 So.2d 208, 209-10 (Fla. 2d DCA 1960).

Here, MDTR failed to carry its burden of proof on the element of identity of parties. Identity of parties for res judicata purposes exists when the parties in the later action were also parties in the first action or, if not, were in privity with those parties. See Bryan, 211 So.3d at 336 ;

Linn-Well Dev. Corp. v. Preston & Farley, Inc., 710 So.2d 578, 580 (Fla. 2d DCA 1998). Indisputably, MDTR was not a party to Provident's initial foreclosure action-only Ms. Groves was. So the question is whether MDTR is in privity with Ms. Groves. To be in privity with a party to an earlier lawsuit, "one must have an interest in the action such that she will be bound by the final judgment as if she were a party." Pearce v. Sandler, 219 So.3d 961, 965 (Fla. 3d DCA 2017) ; see also Stogniew v. McQueen, 656 So.2d 917, 920 (Fla. 1995) (applying the same test in the context of the related doctrine of collateral estoppel).

Although the generality of that statement may make it challenging to apply in some cases, that is not a problem that we have here. In this case, there was no evidence presented at the trial that in any way bore upon what interest MDTR may have had in the prior foreclosure action. We are led to believe by some statements the parties' lawyers made during the trial that MDTR may have acquired in a bankruptcy some ownership interest in the property that is the subject of Provident's mortgage, but those statements were disputed and are not evidence of anything. See Heller v. Bank of Am., NA, 209 So.3d 641, 644 (Fla. 2d DCA 2017) ("Without a stipulation by the parties, the trial court cannot rely on an unsworn statement of counsel to make a factual determination."). The evidentiary record is wholly silent as to what interest, if any, MDTR had in the subject matter of the prior litigation, how it acquired that interest, or anything else that would permit a court to make a determination one way or the other about whether MDTR had an interest in the first foreclosure action such that it would have been bound by a judgment in that action. There was thus no evidentiary basis bearing on the element of identity of parties upon which the trial court could have invoked res judicata to dismiss Provident's second foreclosure action. See, e.g., Massey v. David, 831 So.2d 226, 234 (Fla. 1st DCA 2002) ("Because the record does not conclusively establish that Mr. David would have been bound by an adverse result ... earlier in the present proceeding ..., the trial court erred in granting summary judgment on the basis of res judicata and collateral estoppel.")

Furthermore, the supreme court's decision in Singleton poses a separate, free-standing stumbling block to MDTR's invocation of res judicata in this case. That decision establishes that res judicata does not bar a subsequent foreclosure action on the same mortgage based on a distinct period of default. 882 So.2d at 1006-07. The complaint here falls within this rule because it is based on a period of default (May 1, 2010 and all payments thereafter) that is different and distinct from the period of default alleged in the first action (October 1, 2008 and all payments thereafter).

In Singleton, a mortgagee filed a first foreclosure action based on payment defaults between September 1, 1999 and February 1, 2000. Id. at 1005. That case was dismissed with prejudice, and the mortgagee later brought a second foreclosure action for a default beginning April 1, 2000. Id. The trial court rejected the mortgagor's defense that the second foreclosure action was barred by res judicata and granted summary judgment to the mortgagee. Id. The Fourth District affirmed. Id.

At the supreme court, the mortgagor's argument was that when a mortgagee accelerates the entire balance due on the mortgage after a payment default and sues for foreclosure, the entire loan balance is at issue, and an adverse judgment is res judicata as to any subsequent claim to recover on the note and mortgage. See id. at 1006 (discussing Stadler v. Cherry Hill Developers, Inc., 150 So.2d 468, 472-73 (Fla. 2d DCA 1963) ). The supreme court disagreed and held that "[w]hile it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated on subsequent and different defaults present a separate and distinct issue" such that the second action "is not necessarily barred by res judicata." Singleton, 882 So.2d at 1007. The court explained:

For example, a mortgagor may prevail in a foreclosure action by demonstrating that she was not in default on the payments alleged to be in default, or that the mortgagee had waived reliance on the defaults. In those instances, the mortgagor and mortgagee are simply placed back in the same contractual relationship with the same continuing obligations. Hence, an adjudication denying acceleration and foreclosure under those circumstances should not bar a subsequent action a year later if the mortgagor ignores her obligations on the mortgage and a valid default can be proven.

Id. (emphasis added). It recognized that this approach to applying res judicata to an accelerated mortgage loan represents a "seeming variance from the traditional law of res judicata" and justified that variance based on equitable considerations and the "unique nature of the mortgage obligation." Id. The court concluded that "justice would not be served" if res judicata could "essentially insulate" a mortgagee from a follow-on foreclosure suit based on subsequent payment defaults. Id. at 1007-08.

Under Singleton, Provident's second foreclosure action is not barred by res judicata. The final judgment in the first foreclosure action did not make any determination that would invalidate the note and mortgage or preclude Provident from ever suing upon the note and mortgage; at most, it determined (based on a failure to answer requests for admission) that Provident lacked standing at the time the first foreclosure action was filed and at the time Provident failed to respond to Ms. Groves' requests for admission. Thus, after the first action was resolved in Ms. Groves' favor, she and the lender were returned to their presuit contractual relationship under which she was obligated to make regular payments of principal and interest on the note. See id. at 1007. And as in Singleton, the second foreclosure complaint here is based on a separate and distinct period of default on that payment obligation from the period of default alleged in the first action.

The trial court appears to have concluded otherwise because the period of default alleged in the second complaint (the May 1, 2010 payment and all subsequent payments) predates and overlaps with the time the first foreclosure action was pending (it was dismissed on May 9, 2012). We disagree. The complaint in this case was filed on April 1, 2015, and by its terms-namely, that Ms. Groves had defaulted on all payments subsequent to the May 1, 2010 payment-included payments Ms. Groves missed for nearly three years after the first foreclosure action was resolved. On its face, then, it alleged defaults outside the period the initial foreclosure was pending.

In that regard, the First District's decision in Forero v. Green Tree Servicing, LLC, 223 So.3d 440 (Fla. 1st DCA 2017), is on point. There, the plaintiff brought two foreclosure actions alleging "December 1, 2008 and all subsequent payments" as the period of default. Id. at 441-42. After it voluntarily dismissed both actions-the second voluntary dismissal operating as an adjudication on the merits under Florida Rule of Civil Procedure 1.420(a)(1) -it filed a third one also alleging defaults from "December 1, 2008 and all subsequent payments." Id. at 442. Applying Singleton, the First District held that res judicata did not bar the third action even though all three complaints alleged "December 1, 2008 and all subsequent payments" as the default period. Id. at 443-44. Its reasoning is persuasive and equally applicable here:

The additional payments missed by the time the third action was filed, which were not bases for the previous actions because they had not yet occurred, constitute separate defaults upon which the third foreclosure action may be based. Additionally, acceleration of the note occurred at a different time. Accordingly, even though the same phrase was used to describe the default in each action-"December 1, 2008 and all subsequent payments"-the meaning of the phrase expanded as time progressed and additional payments were missed.

Id. at 444 (emphasis added). We agree and hold that Provident's second complaint here alleged defaults that were separate and distinct from those alleged in the complaint in the first action. See also U.S. Bank Nat'l Ass'n v. Amaya, 254 So.3d 579, 583, 2018 WL 3553905 (Fla. 3d DCA 2018) (reversing a final judgment in the mortgagor's favor and holding that res judicata did not apply where first and second complaints alleged default dates of May 1, 2008 and "all subsequent payments" in part because the allegation "that 'all subsequent payments have not been paid' after the May 1, 2008 default, thereby including the 'subsequent and different defaults' after the filing of, and subsequent dismissal, of the previous action contemplated by Singleton" (quoting U.S. Bank's verified amended complaint) ).

The trial court believed that the supreme court's decision in Bartram v. U.S. Bank National Ass'n, 211 So.3d 1009 (Fla. 2016), required a different result. It misread that case. In Bartram, the supreme court relied on Singleton in holding that the statute of limitations on foreclosure claims does not bar a mortgagee from filing a successive foreclosure action based on a default that occurred subsequent to the dismissal of the initial action so long as the subsequent action is timely as to the subsequent default. 211 So.3d at 1012. It is precisely because Singleton holds that a subsequent default creates a distinct cause of action that the Bartram court concluded that the five-year statute of limitations runs from the date of each new default. Id. at 1019. And applying Bartram, our court has held that even where a successive foreclosure complaint alleges a default outside the limitations period, so long as it contains language like "all subsequent payments," it alleges payment defaults within the limitations period such that dismissal of the action on the basis of the statute of limitations is improper. See, e.g., Desylvester v. Bank of N.Y. Mellon, 219 So.3d 1016, 1020 (Fla. 2d DCA 2017) ("Nevertheless, the allegations of the complaint in the underlying action that the borrowers were in a continuing state of default at the time of the filing of the complaint was sufficient to satisfy the five-year statute of limitations.");

Bollettieri Resort Villas Condo. Ass'n v. Bank of N.Y. Mellon, 198 So.3d 1140, 1142 (Fla. 2d DCA 2016) ("Although the initial default occurred more than five years prior to the bank's foreclosure complaint, the bank affirmatively alleged that Graham has failed to make any subsequent payments due on the note."). Simply put, nothing in Bartram supports the proposition that the judgment in the action on the first payment default bars the prosecution of a subsequent action based on a later payment default alleged to include a date certain and all subsequent payments.

III.

In sum, because MDTR failed to carry its burden of proving identity of parties and because this foreclosure action was based on a period of default separate and distinct from that which formed the basis of the previous foreclosure action, the trial court erred in dismissing this claim as barred by res judicata. We reverse the order of involuntary dismissal and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.

      The timing and substance of the order of involuntary dismissal are unusual. An involuntary dismissal tests whether the plaintiff has made a prima facie case and is typically presented and resolved at the conclusion of the plaintiff's evidence. See Fla. R. Civ. P. 1.420(b) (describing timing and resolution of motion for involuntary dismissal); May v. PHH Mortg. Corp., 150 So.3d 247, 248 (Fla. 2d DCA 2014) ("When confronted with a motion for involuntary dismissal, the trial court must determine whether or not the plaintiff has made a prima facie case."). Here, the trial court entered an order of involuntary dismissal after Provident and MDTR were both finished with the evidentiary portion of the trial (MDTR having declined to put on evidence), when it could have simply rendered a final judgment on the basis of an affirmative defense rather than a deficiency in Provident's prima facie case. See Kummer, 195 So.3d at 1175 n.2 ("We would further note that the timing of the court's involuntary dismissal of Deutsche Bank's complaint-after both parties had rested their respective cases, when the court could just as easily rendered a final judgment on the merits-was unusual and perhaps not in keeping with the 'best practice' in nonjury trials of ruling on such a motion at the conclusion of the plaintiff's case."). We need not sort through these aspects of the trial court's order to resolve this case. As demonstrated in the text, MDTR bore the burden of proof on res judicata, and it both failed to carry that burden and ran into a legal obstacle posed by the supreme court's Singleton decision.

      Both of the foreclosure actions that Provident filed with respect to Ms. Groves' note and mortgage were based on the acceleration of the entire amount due under the note.

      We express no opinion on whether or to what extent the preclusive effect of the judgment in the first action may limit or prohibit Provident from having payment defaults that were embraced by the allegations of the first complaint or that occurred while the first action was pending in the amount of indebtedness to be established in this action. Depending on how the proceedings on remand unfold, this may be an issue the trial court will have to resolve based on the pleadings, evidence, and legal arguments offered by the parties.

      The same is true of the trial court's reliance on GMAC Mortgage, LLC v. Whiddon, 164 So.3d 97 (Fla. 1st DCA 2015). That case involved the dismissal of a subsequent action that was based on the same period of default. Id. at 98-101. The court there affirmed the dismissal of the subsequent action because the plaintiff had failed to allege a separate default sufficient to give rise to a new cause of action. Id. As demonstrated in the text, that is not the case here.

      We decline to reach MDTR's tipsy coachman arguments and leave them for the trial court to consider in the first instance on remand. See HSBC Bank USA, Nat'l Ass'n v. Nelson, 246 So.3d 486, 489 (Fla. 2d DCA 2018). To the extent MDTR seeks to defend on the basis of collateral estoppel, we note that the law requires mutuality of parties there as well. See Stogniew, 656 So.2d at 919.


author: B.L. Thomas, C.J.

text:
    Anthony Lamar SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5213
    District Court of Appeal of Florida, First District.
    October 15, 2018
    Andy Thomas, Public Defender, Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was convicted and sentenced on two counts of attempted second-degree murder and four counts of attempted armed robbery. Appellant challenges evidentiary rulings allowing deposition testimony to be admitted at a pretrial similar-fact hearing and admitting related evidence at trial. Appellant argues that these two rulings, together with improper prosecutorial comments, require reversal and a new trial.

Facts and Trial Proceedings

Six people went out to a restaurant to sing karaoke and celebrate a birthday. After the restaurant closed, they remained outside for an hour or longer, talking and laughing about the weekend.

Appellant, identified in court by four witnesses, approached the restaurant and checked the door to see if the business was closed. Appellant then walked a few feet toward the group, told them his car was out of gas, and asked for money to help. One member of the group immediately offered to take care of the car for Appellant. Declining that assistance, Appellant accepted $2.00 from another person and walked away a few feet, but then turned to the group again, his hand fumbling in his pocket, and irately asked why the victims had given him so little money. Appellant pulled out a handgun and told the group he would shoot anyone who attempted to leave, and demanded their wallets and money.

One member of the group stood up and stepped toward Appellant, and Appellant immediately shot the victim in the chest. The bullet entered the victim's lower torso, exited, and then entered the second victim's face. The first victim testified that he tried to run after Appellant but found that he couldn't breathe, and looked at his chest to find a hole in his body. The second victim testified that his face started shaking and his body "slumped" to the left, and he could not move. The bullet lodged permanently in that victim's neck.

Appellant's girlfriend testified that Appellant, whom she met on Facebook, was known as "Amp." When a local televised news report posted pictures of the suspect from restaurant surveillance video, Appellant admitted to her that the picture depicted him.

The State introduced a photograph of Appellant with a handgun, which was posted to Facebook near the date of the crimes and matched the victims' descriptions of the perpetrator. The State noted that the gun in the photograph was consistent with the .40-caliber Smith & Wesson semi-automatic pistol seized from the apartment Appellant shared with his girlfriend. The State presented evidence that Appellant's DNA was found on the magazine of that firearm.

After law enforcement obtained sufficient evidence to secure an arrest warrant, several officers attempted to arrest Appellant as he arrived at his girlfriend's apartment. The officers used three cars to attempt to block the egress route of the car in which Appellant arrived. Appellant jumped into the driver's seat and drove into a parked car and then directly into an officer's car, and continued until he reached a dead end. Appellant then drove into a dumpster, and one officer rammed his car. Appellant leapt out of the car and was hit by another vehicle, but quickly jumped up and attempted to run away. Appellant was then tackled by several officers and arrested.

The State presented the similar-fact testimony of a witness who was robbed by Appellant two nights earlier, at a restaurant less than a mile away from the location of the charged crimes. The trial court informed the jury of the limited purpose of the evidence, noting that "the defendant cannot be convicted for a crime, wrong or act that is not included in the Information."

The similar-fact witness testified that she and friends arrived at the restaurant near 2:45 a.m. She did not know Appellant, who was standing outside the restaurant, but she asked him to use her phone to take a picture of her and two friends. The witness and her friends then went into the restaurant. When the witness left the restaurant alone 15 minutes later, Appellant approached her and asked for a cigarette lighter. She went to her car and looked for a lighter, then turned to tell Appellant she did not have one, and saw that Appellant was pointing a handgun at her. Appellant demanded her clothing, which contained her wallet and cell phone, and then returned her driver's license after wiping it off with his shirt. The witness testified that she drove home in her undergarments. The witness further testified that Appellant had on a white tank-top, which was a similar shirt to the one described by the witnesses to the charged crime. The witness also testified that Appellant was in a car similar to the car shown in the surveillance video on the televised news report. Shortly after the robbery, the witness identified Appellant from a photographic line-up, and she positively identified him at trial.

Appellant testified in his own defense, stating that on the night of the charged crimes he told the victims he needed money for gas, and they gave him money in exchange for marijuana. After noticing he had been short-changed, he returned to them, when the first shooting victim pulled a knife and threatened Appellant, and then chased him. Appellant testified that he fell and got back up, but his pants were baggy and needed to be pulled up; while he was pulling up his pants, his gun went off accidently. He further testified that he fled the attempted arrest because he thought he was being assaulted, as the officers were in unmarked cars. Appellant denied any involvement in the prior robbery.

After the defense rested, the State called the victims of the charged case, who testified on rebuttal that they never bought drugs from Appellant and no one attacked Appellant with a knife. The State also called the arresting officer, who testified that Appellant, after being read his rights, told police he did not own a gun and he was never at the restaurant that night.

During closing argument, the State told the jury that Appellant's story about being attacked by the victim was "made up - made up for the first time three years and one month later." Defense counsel objected, which was overruled. The State made several similar remarks attacking Appellant's credibility and veracity. Defense counsel did not object to these statements. The State also argued that the discharge of the firearm "doesn't have to be accidental, it doesn't have to be intentional, it's the fact that [Appellant] was the person with the firearm, he is the one that discharged it."

Appellant was found guilty on all counts. At sentencing, the victim who had been shot in the face testified to the pain and suffering he continued to endure, urging the court to sentence Appellant to life imprisonment. Another victim testified to the extreme mental anguish she experienced after the crime. The court sentenced Appellant to forty years in prison on one count of attempted second-degree murder and twenty-five concurrent years in prison on all other counts, based on a jury finding that Appellant discharged a firearm during the offenses causing great bodily harm.

Analysis

I. Use of Deposition Testimony at Similar-Fact Pretrial Hearing

Appellant argues that the trial court committed reversible error in allowing the State to proffer deposition transcripts from the charged offense in the pretrial similar-fact hearing. Appellant argues that the deposition testimony used at the pretrial hearing was hearsay, and therefore this Court should reverse and remand for a new trial.

The relevant statutory law requires no proffer of the evidence of the charged crimes during a pretrial review of similar-fact evidence:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2016).

Before introducing evidence of collateral crimes, the State "shall furnish to the defendant ... a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information ...." § 90.404(2)(d)1, Fla. Stat. (2016). The supreme court has held that, "before even considering whether to allow evidence of prior acts to be presented to the jury, the trial court must find that the prior acts were proved by clear and convincing evidence." McLean v. State , 934 So.2d 1248, 1262 (Fla. 2006) (emphasis added); Barber v. State, 781 So.2d 425, 428-29 (Fla. 5th DCA 2001) ("[t]he State is only required to give notice of its intent to rely on Williams[ ] rule evidence pursuant to section 90.404(2)(b), Florida Statutes (1997).").

After considering arguments and case law during the pretrial hearing, the trial court here ruled that the State could use the depositions of the witnesses to the charged offense at the pretrial hearing to serve as a comparison to the similar-fact evidence. In pretrial hearings, hearsay evidence is generally admissible. See, e.g. , Bauer v. State, 528 So.2d 6, 10 (Fla. 2d DCA 1988) ("hearsay evidence is admissible at such a pretrial hearing"); Lara v. State , 464 So.2d 1173, 1177 (Fla. 1985) (finding that hearsay evidence "was properly admitted at the suppression hearing, even though [a witness] was unavailable for cross-examination"). In addition, the State's notice of its intent to use similar-fact evidence was specific and adequate, referring to both the case number of the similar-fact robbery and the name of that robbery victim.

After the depositions from the charged crime were entered into evidence, the State called a deputy sheriff and the victim of the similar-fact robbery. Defense counsel cross examined these witnesses. The trial court then heard arguments as to whether the collateral crime was similar enough to the charged offense (as described in the depositions) to be admissible at trial. The trial court found that the evidence of the collateral robbery was admissible. Thus, because the State gave sufficient notice of the similar-fact evidence, and the hearsay evidence was admissible in the pretrial Williams rule hearing, and testimony from the similar-fact witness was subject to cross examination, the trial court did not err in allowing the State to use the deposition testimony at the hearing. See Barber, 781 So.2d at 427.

Were we to hold otherwise, each victim in the charged offenses would be required to appear and testify three times -once at a pretrial deposition, again at the pretrial similar-fact hearing, and finally at trial.

Such is not required under either the statute or the relevant case law. The collateral-crime witnesses testified at the pretrial hearing and were cross examined by defense counsel on how these incidents compared to what was known of the charged offenses. Furthermore, the witnesses to the charged offense were cross examined at their depositions and at trial. In addition, the trial court continued to assess the admissibility of the similar-fact evidence at trial, asking if defense counsel had "any rebuttal as it relates to that argument about additional crimes." Thus, Appellant was not prejudiced by the trial court's decision to allow the use of deposition testimony during the pretrial hearing.

II. Admission of Similar-Fact Evidence at Trial

A trial court's decision to admit similar-fact evidence is reviewed for abuse of discretion. Black v. State , 630 So.2d 609, 618 (Fla. 1st DCA 1993). "[C]ollateral crime evidence is not required to be so unique that no other perpetrator could have committed both offenses. Rather, the two crimes must share some unique features suggesting the same perpetrator." Id. at 617-18. In Black , this Court found that the following facts were sufficiently similar as to render the Williams rule evidence admissible:

All robberies occurred at the end of weekend business; at gunpoint, the robber ordered all store employees into a confined area, and they were told not to come out for ten minutes; the robber disabled the store phones in each instance; the robber carried a large, dark, semiautomatic handgun in each instance; and in each instance, the perpetrator was a tall, bulky black man wearing a plaid flannel shirt, a dark ski mask and gloves.

Id. at 617.

Appellant argues that the collateral armed robbery was not sufficiently similar to the charged crime as to render the evidence admissible. The trial court found that both robberies occurred on 103rd Street in Jacksonville; both crimes happened outside of chain restaurants; both crimes were committed in the early-morning hours, within two days of each other; both crimes were committed by similarly described lone gunmen wearing white tank tops; and both crimes were committed against strangers. The trial court then explained that the "signature feature" shared by each instance was that the perpetrator struck up a friendly conversation with strangers and made innocent requests, then returned with a gun to make demands. The trial court found it "unusual in robberies for there to be an innocent encounter and a request for something seemingly innocent prior to a robbery."

We agree with the trial court that there were sufficient similarities and "significant feature[s]" between the collateral and the charged robberies. Although there may have been insignificant differences between the robberies, "[d]issimilarities are not fatal when they 'seem to be a result of differences in the opportunities with which [the defendant] was presented, rather than differences in modus operandi.' " Durousseau v. State , 55 So.3d 543, 553 (Fla. 2010) (quoting Gore v. State , 599 So.2d 978, 984 (Fla. 1992) ). Thus, while it is correct that a trial court must evaluate both similarities and differences, it is the entire picture of the criminal episodes which a court must view, not simply differences in isolation. By definition, no two criminal episodes are identical.

Based on the similarities and unusual modus operandi noted by the trial court, plus other similarities, the trial court did not abuse its discretion in admitting the similar-fact evidence. See State v. Norris , 168 So.2d 541, 543 (Fla. 1964). As in Black , where similar modus operandi, clothing, description, and location established a logical connection, here the State showed "similarity and an unusual nature of the factual circumstances." 630 So.2d at 617. We therefore reject Appellant's arguments on this issue.

III. Improper Prosecutorial Arguments

If a defendant does not contemporaneously object to an improper comment made in closing argument, he waives the claim on appeal. Randolph v. State, 853 So.2d 1051, 1068 (Fla. 2003) ; see also Wasko v. State, 505 So.2d 1314, 1317 (Fla. 1987) (finding that a trial court's ruling on such an objection is reviewed for abuse of discretion). Likewise, if a defendant does object to an improper comment, but does not move for mistrial before the jury retires for deliberation, he waives the claim on appeal. State v. Cumbie , 380 So.2d 1031, 1033 (Fla. 1980). When a criminal defendant fails to object to an allegedly improper prosecutorial argument, an appellate court may not reverse a conviction on that basis, unless the prosecutorial comment constitutes fundamental error, although the reviewing court may find the cumulative effect of improper comments to be so prejudicial as to deprive a defendant of a fair trial, requiring reversal. See Lukehart v. State , 70 So.3d 503, 524 (Fla. 2011). Of course, where all individual claims of prosecutorial misconduct are meritless, a cumulative error claim necessarily fails. Id.

Here, Appellant alleges that the State: 1) improperly argued that Appellant lied on the stand; 2) misstated the law by telling the jury it could convict if Appellant accidentally discharged his firearm; 3) improperly shifted the burden of proof for self-defense; and 4) improperly commented on Appellant's right to remain silent. Appellant asserts that the cumulative effect of these comments warrants reversal.

It is improper for a prosecutor to opine that a defendant lied on the stand, unless the comments were "made in fair reference to the evidence." Blackwood v. State , 946 So.2d 960, 970 (Fla. 2006) ; see also Lugo v. State, 845 So.2d 74, 107-08 (Fla. 2003) (holding that where the evidence substantially proved the defendant was deceitful, remarks challenging the veracity of the defendant were proper comments on the evidence). "It is only when, viewed in the totality of the case, the prosecutor's comments drift far afield from the evidence adduced at trial that they may constitute fundamental error." Zack v. State, 911 So.2d 1190, 1205 (Fla. 2005). Appellant cannot prevail in his argument for reversal, unless the combined remarks were so prejudicial as to deny him a fair trial. See Lukehart , 70 So.3d at 524 ; Cumbie , 380 So.2d at 1033.

We hold that the State's comments were a fair reference to the evidence, and were not so far afield from the evidence adduced at trial as to constitute fundamental error. The State introduced evidence tending to show that Appellant gave a false statement to police by claiming that he was never at the scene and did not own a firearm. The State also presented evidence that Appellant committed the collateral robbery, including the collateral-crime victim's identification of Appellant. The collateral-crime evidence showed that Appellant had a modus operandi for robberies, contradicting his testimony that he was an innocent victim ambushed by the victims of the charged offenses. Likewise, Appellant's statements to police discredited his trial testimony.

Appellant also argues that, during closing argument, the State misstated the law by incorrectly informing the jury that Appellant could be convicted even if the jury believed the discharge of the firearm was an accident. Where a prosecutor misstates the law during closing argument, and the defendant does not object or move for mistrial, the issue is not preserved for appellate review unless the comment rises to fundamental error, such that a conviction could not have been obtained without the error. See, e.g. , Evans v. State , 177 So.3d 1219, 1234 (Fla. 2015) ; State v. Fountain , 930 So.2d 865, 866 (Fla. 2d DCA 2006).

During closing arguments, the State told the jury that the discharge of the firearm "doesn't have to be intentional, it's the fact that [Appellant] was the person with the firearm, he is the one that discharged it." Appellant neither objected nor moved for mistrial; thus, absent fundamental error, the issue is waived. Evans , 177 So.3d at 1234. Regardless, we do not view the State's comment as a misstatement of law, let alone fundamental error. The State argued that intent was not required for the aggravating factor of discharging a firearm. The State had already explained how to find second-degree murder, and prefaced the challenged comment with "So, if you find [Appellant attempted to] commit[ ] murder in the second degree ...." (Emphasis added.) Thus, no fundamental error occurred.

Next, Appellant claims that the State improperly shifted the burden of proof on his self-defense claim. When a defendant raises a self-defense claim, he must produce enough evidence to establish a prima facie case of justifiable use of force. Fields v. State , 988 So.2d 1185, 1188 (Fla. 5th DCA 2008). Once a defendant makes this showing, the State has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. Id. Where a defendant does not object to a comment that shifts the burden of proof, the claim is waived on appeal. Morrison v. State, 818 So.2d 432, 445 (Fla. 2002).

Here, the State told the jury that "in order to find a justifiable attempted homicide, you all would have to believe unanimously that [Appellant] was the one being attacked by [the victim] with that pocketknife in order to find that [Appellant's] actions, the firing of the gun, was justifiable." As Appellant did not object or move for mistrial, this claim is not preserved for appeal. See id. Moreover, this comment did not shift the burden of proof. See Fields , 988 So.2d at 1188. Shortly after making the comment, the State told the jury that if, "in your consideration of the issue of self-defense, you have reasonable doubt on the question of whether [Appellant] was justified in the use of deadly force, you should find [Appellant] not guilty ." (Emphasis added.) Thus, Appellant fails to show any fundamental error.

Appellant next argues that "[a] prosecutor's comments on a defendant's failure to offer an exculpatory statement prior to trial amounts to a comment upon the defendant's right to remain silent." Munroe v. State, 983 So.2d 637, 641 (Fla. 4th DCA 2008) (citing State v. Hoggins , 718 So.2d 761, 772 (Fla. 1998) ). A comment on a defendant's right to remain silent is not fundamental error, and a contemporaneous objection is required to preserve for appeal any claim asserting that the State violated the defendant's constitutional right to remain silent. Clark v. State , 363 So.2d 331, 333 (Fla. 1978), overruled in part on other grounds, State v. DiGuilio , 491 So.2d 1129, 1137 n.14 (Fla. 1986).

Appellant waived this argument by not objecting to the comments at trial. Clark , 363 So.2d at 333. In addition, the record shows that, after being read his rights, Appellant voluntarily gave a statement to law enforcement indicating that he was never at the crime scene and did not own a firearm. After Appellant testified at trial that he was at the scene and did shoot a firearm in self-defense, the State called the arresting officer on rebuttal and asked, "at any point in time did [Appellant] tell you that he shot in the direction of [the two shooting victims] in self-defense?" The officer answered, "No, ma'am, he said he wasn't even there." In closing, the State argued that Appellant's trial testimony was inconsistent with the statement he gave to police.

Because Appellant did offer an exculpatory statement prior to trial, the State did not comment on his silence. Appellant's reliance on Munroe is misplaced, as that case does not stand for the proposition that the Fifth Amendment allows defendants to testify at trial and change their previous explanations with no risk of impeachment. See Munroe , 983 So.2d at 641. Thus we hold that none of the prosecutorial arguments entitle Appellant to a new trial.

AFFIRMED .

Osterhaus and Bilbrey, JJ., concur.

      Williams v. State, 110 So.2d 654 (Fla. 1959).


author: Per Curiam.

text:
    George WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3629
    District Court of Appeal of Florida, First District.
    October 16, 2018 Rehearing Denied December 12, 2018
    George Walker, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of August 30, 2018, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Lewis, Wetherell, and Winokur, JJ., concur.


text:
    George WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3625
    District Court of Appeal of Florida, First District.
    October 16, 2018 Rehearing Denied November 29, 2018
    George Walker, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of August 30, 2018, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Lewis, Wetherell, and Winokur, JJ., concur.


author: EMAS, J.

text:
    Ronald Jerome LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-698
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018.
    Ronald Jerome Lee, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

Ronald Jerome Lee appeals from a trial court order which granted his motion to correct illegal sentence but which resentenced Lee in absentia and without the presence of, or representation by, counsel. We reverse for a new sentencing proceeding because Lee had a right to be present and to be represented by counsel at the resentencing hearing in which the trial court had discretion in determining the new sentence to be imposed.

Lee was originally sentenced to forty years' imprisonment for attempted second-degree murder with a firearm, together with a twenty-year mandatory minimum for discharge of a firearm during the commission of that crime. The trial court ordered that the twenty-year mandatory minimum sentence for that count be served consecutively to the twenty-year mandatory minimum sentences imposed in two other counts (two counts of aggravated assault with a firearm, each involving discharge of a firearm). At the time of Lee's original sentencing, the trial court believed it had no discretion and was required to order that the mandatory minimum sentences be served consecutively. See Morgan v. State, 137 So.3d 1075 (Fla. 3d DCA 2014) (quashed by Morgan v. State, 42 Fla. L. Weekly S680 (Fla. May 26, 2017) ); Williams v. State, 125 So.3d 879 (Fla. 4th DCA 2013) (quashed by Williams v. State, 186 So.3d 989 (Fla. 2016) ).

Lee filed a motion to correct illegal sentence pursuant to rule 3.800(a), contending in part that the forty-year sentence is illegal because the crime of attempted second-degree murder with a firearm is a first-degree felony, punishable by a maximum of thirty years. The trial court granted the motion to correct illegal sentence, and resentenced Lee to thirty years' imprisonment, with a twenty-year mandatory minimum. The trial court again ordered that the twenty-year mandatory-minimum portion of the sentence be served consecutively to the mandatory minimum sentences imposed on the aggravated assault counts. Neither Lee nor his counsel were present for the resentencing proceeding.

The State has properly and commendably conceded that, although the trial court properly granted Lee's motion to correct illegal sentence, the trial court erred in resentencing Lee in absentia and without the presence of, and representation by, counsel. Where a trial court grants a motion to correct an illegal sentence, a defendant has the right to be present at the resentencing and to be represented by counsel. Jordan v. State, 143 So.3d 335, 338 (Fla. 2014) ; Gonzalez v. State, 221 So.3d 1225 (Fla. 3d DCA 2017) ; Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008) (holding that a "new sentencing hearing is a critical stage of the proceedings, and due process requires he be present and assisted by counsel"). See also Fla. R. Crim. P. 3.180(a)(9) (providing that "the defendant shall be present ... at the pronouncement of judgment and the imposition of sentence"). While a violation of this right is subject to a harmless error analysis, Jordan, 143 So.3d at 338, the State acknowledges, and we agree, that the error in this case is not harmless, as the trial court had discretion in imposing a corrected, legal sentence. See id. at 339-40 (holding that "a resentencing at which the trial judge has discretion is not a ministerial act").

The trial court had the authority to impose a sentence less than the maximum legal sentence of thirty years. Although the original sentence of forty years (and the corrected sentence of thirty years) would appear to demonstrate the trial court's intent to impose the maximum allowable sentence, the absence of Lee and his counsel from the resentencing deprived Lee of the opportunity to present evidence and argument to the trial court that some sentence less than the maximum is appropriate.

Further, since the time of Lee's original sentence, our decision in Morgan, and the Fourth District's decision in Williams, have been quashed by the Florida Supreme Court, and the law is now clear that the trial court has the discretion to order the twenty-year mandatory minimum portion of Lee's sentence to be served concurrently with, rather than consecutively to, the other mandatory minimum sentences imposed in this case. See Morgan, 42 Fla. L. Weekly S680 at *1 ; Williams, 186 So.3d at 995 ; Charlemagne v. State, 223 So.3d 1124 (Fla. 3d DCA 2017) ; Martinez-Castaneda v. State, 225 So.3d 847 (Fla. 3d DCA 2016). Indeed, the trial court's resentencing order acknowledges this clarification of the law, but concludes that the mandatory minimum portion of the sentence should be served consecutively to the mandatory minimum sentences imposed for the aggravated assault convictions. Nevertheless, because this determination involves the exercise of the trial court's discretion, Lee and his counsel were entitled to be present at the resentencing and to present evidence and argument to the trial court on the issue.

We therefore vacate the corrected sentence imposed for Lee's conviction for attempted second-degree murder, and remand for the trial court to conduct a resentencing proceeding on that count and thereafter impose sentence. Lee shall be present for that proceeding and shall be represented by counsel. We express no opinion with regard to what sentence should be imposed at resentencing.

      See § 775.087(2)(d), Fla. Stat. (2014) (known as the 10/20/Life statute, it requires a mandatory minimum sentence of twenty years where a defendant discharges a firearm during the course of the commission of certain enumerated felonies).

      See §§ 777.04(4)(c), 782.04, Fla. Stat. (2014) (together providing that attempted second-degree murder is a second-degree felony, punishable by a maximum of fifteen years); § 775.087, Fla. Stat. (reclassifying a second-degree felony to a first-degree felony for use of a firearm); § 775.082(3)(b)1. (providing that the maximum sentence for a first-degree felony is "a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment").

      As discussed earlier, at the time of the original sentencing, the trial court followed the then-existing law, which gave the trial court no discretion and required it to impose the mandatory minimum sentence consecutively. Thus, at this resentencing proceeding, Lee and his counsel will be afforded the opportunity to present to the trial court, for the first time, evidence and argument in support of a concurrent, rather than a consecutive, mandatory minimum sentence on this count. See Mason v. State, 210 So.3d 120 (Fla. 2d DCA 2016).


author: ORFINGER, J.

text:
    David W. FOLEY, Jr. and Jennifer T. Foley, Appellants, v. Asima AZAM, Tim Boldig, Fred Brummer, Richard Crotty, Frank Detoma, Mildred Fernandez, Mitch Gordon, Tara Gould, Carol Hossfield, Teresa Jacobs, Roderick Love, Rocco Relvini, Scott Richman, et al., Appellees.
    Case No. 5D18-145
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 19, 2018
    David W. Foley, Jr. and Jennifer T. Foley, Orlando, pro se.
    Lamar D. Oxford and Eric J. Netcher, of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellees, Tim Boldig, Carol Hossfield, Rocco Relvini, Phil Smith, Tara Gould and Mitch Gordon.
    Derek J. Angell, B.C.S., of O'Connor & O'Connor, LLC, Orlando, for Asima Azam, Fred Brummer, Richard Crotty, Frank Detoma, Mildred Fernandez, Teresa Jacobs, Roderick Love, Scott Richman, Joe Roberts, Marcus Robinson, Tiffany Russell, Bill Segal and Linda Stewart.
    No Appearance for Orange County, a political subdivision of the State of Florida.
   ORFINGER, J.

David W. Foley, Jr. and Jennifer T. Foley appeal the trial court's dismissal of their amended complaint. The Foleys argue that, contrary to the court's order, the statute of limitations did not bar their action because 28 U.S.C. § 1367(d) (2016) tolled the limitations period. We agree and reverse.

The Foleys were commercial toucan farmers who attempted to run their business out of their home in Orange County. After a neighbor complained, Orange County Code Enforcement investigated and determined that the Foleys were violating the Orange County Code. Following a public hearing, the Board of Zoning Adjustment ("BZA") found that the Foleys were in violation of the Code and the Board of County Commissioners ("BCC") affirmed that decision.

After exhausting their administrative remedies, the Foleys filed a complaint in the U.S. District Court for the Middle District of Florida against Orange County (the "County"), various county employees (the "Employee Defendants"), and the members of the BZA and BCC in both their individual and official capacities (the "Official Defendants"), raising federal and state claims. Foley v. Orange Cty., Fla., No. 6:12-cv-269-Orl-37KRS (M.D. Fla. Dec. 4, 2012). The district court determined that the County was entitled to summary judgment on all of the Foleys' federal claims. However, it ruled that the Foleys were entitled to summary judgment on their state law claims because the relevant Code provisions were void. Id.

The Foleys and the County cross-appealed to the U.S. Court of Appeals for the Eleventh Circuit. Foley v. Orange Cty., 638 F. App'x 941 (11th Cir. 2016). The Eleventh Circuit affirmed in part and reversed in part, holding that the Foleys' federal claims were frivolous and that the district court lacked subject matter jurisdiction to adjudicate the state law claims, explaining that

[a]ll of the Foley's federal claims either " 'ha[ve] no plausible foundation, or ... [are clearly foreclosed by] a prior Supreme Court decision.' " Blue Cross & Blue Shield of Ala. [v. Sanders], 138 F.3d [1347,] 1352 [ (11th Cir. 1998) ] (quoting Barnett [v. Bailey ], 956 F.2d [1036,] 1041 [ (11th Cir. 1992) ] ). The District Court therefore lacked federal-question jurisdiction. Bell [v. Hood], 327 U.S. [678,] 682-83, 66 S.Ct. [773,] 776 [90 L.Ed. 939 (1946) ]. Without federal-question jurisdiction, the District Court did not have jurisdiction to determine the state-law claims presented by the Foleys. See 28 U.S.C. § 1331 ; 28 U.S.C. § 1332(a)(1).

Id. at 945-46.

On remand, the district court dismissed the case. Within thirty days of the dismissal, the Foleys initiated a state court action against the County and the Official and Employee Defendants. They subsequently amended their complaint, alleging that their action was timely because " 28 USC § 1367(d), tolls for thirty days after such dismissal all limitations on supplemental claims related to those asserted to be within the original jurisdiction of the federal district court." The Official and Employee Defendants filed motions to dismiss, alleging, in part, that Florida's statute of limitations barred the action.

In their motions to dismiss, the Official and Employee Defendants argued that the Foleys' cause of action accrued on February 18, 2008, that all of the claims were governed by the four-year statute of limitations in section 95.11(3), Florida Statutes (2016), and that the Foleys did not file their complaint in state court until eight years after the action accrued. They admitted that the Foleys filed their federal lawsuit within the limitations period, but asserted that section 1367(d) did not toll the limitations period while the federal action was pending because the Eleventh Circuit concluded that the federal district court lacked original jurisdiction.

Following a hearing, the trial court entered an order granting both the Official Defendants' and the Employee Defendants'

motions to dismiss, dismissed the amended complaint with prejudice as to the Official Defendants and entered a final judgment in favor of the Employee Defendants. The court determined that the applicable statute of limitations barred all of the Foleys' claims and rejected the Foleys' argument that section 1367(d) tolled the limitations period because that section

only applies where a federal court enjoyed original jurisdiction over the case, and if the initial assertion of federal jurisdiction is found to be insufficient, then the section does not apply and the party does not get the benefit of the tolling. See Ovadia v. Bloom, 756 So.2d 137, 140 (Fla. 3d DCA 2000). Because the Eleventh Circuit determined that the Plaintiffs' claims had no plausible foundation, section 1367(d) is inapplicable to the instant matter.

As we will explain, we disagree.

A legal issue concerning a statute of limitations is subject to de novo review. Desai v. Bank of N.Y. Mellon Tr. Co., 240 So.3d 729, 730 (Fla. 4th DCA 2018). 28 U.S.C. § 1367 provides federal district courts with supplemental subject matter jurisdiction and reads, in relevant part:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
....
(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

Thus, section 1367 provides that when a federal district court has original jurisdiction-either based on diversity, 28 U.S.C. § 1332 (2016), or federal question jurisdiction, 28 U.S.C. § 1331 (2016)-it may exercise supplemental jurisdiction over "all other claims," including state law claims, "that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367 (2016). Here, the federal court's supplemental jurisdiction over the state claims was based on its federal question jurisdiction over the Foleys' federal claims.

With this background in mind, we now review the development of Florida law regarding the application of section 1367(d), culminating in the Florida Supreme Court's decision in Krause v. Textron Financial Corp., 59 So.3d 1085 (Fla. 2011). In 2000, the Third District Court of Appeal addressed the application of section 1367(d) in Ovadia v. Bloom, 756 So.2d 137 (Fla. 3d DCA 2000), the case relied on by the Official and Employee Defendants and the trial court. There, the plaintiff filed an action in federal court based on diversity jurisdiction. Id. at 138. The federal court dismissed the case because the parties did not have diversity of citizenship. Id. at 139. Within thirty days following the dismissal, but after the limitations period had expired, the plaintiff filed an action in state court. Id. The trial court dismissed the case as barred by the statute of limitations, and the Third District Court affirmed, holding that the tolling provision of section 1367(d) was not applicable "because the federal court never had original jurisdiction over [the plaintiff]'s action. Any arguable jurisdiction was based on diversity, and the presence of non-diverse defendants in the action destroyed jurisdiction on that basis." Id.

That same year, the First District Court of Appeal addressed a similar issue in Blinn v. Florida Department of Transportation, 781 So.2d 1103 (Fla. 1st DCA 2000). There, the plaintiff filed her action in federal court, asserting federal question and supplemental jurisdiction. Blinn, 781 So.2d at 1104. She later voluntarily dismissed her federal case and nine days later filed her state claims in state court. Id. The trial court dismissed the case for exceeding the statute of limitations, but the First District Court reversed, concluding that "the tolling provision of section 1367 ought not be interpreted as applicable only to dismissals predicated on a federal court's decision to decline supplemental jurisdiction," and consequently, held that the limitations period was tolled for thirty days following the dismissal of the federal case. Id.; see Stevens v. ARCO Mgmt. of Wash., D.C., Inc., 751 A.2d 995, 998 (D.C. 2000) (holding that section 1367(d) tolled statute of limitations where federal case dismissed for lack of subject matter jurisdiction, and noting that it "does not require a successful assertion of federal jurisdiction" and does not "differentiate among the possible reasons for dismissal, whether it be on the merits, or for jurisdictional reasons").

In 2002, the Fourth District Court of Appeal reached the same conclusion as Blinn in Scarfo v. Ginsberg, 817 So.2d 919 (Fla. 4th DCA 2002). There, the plaintiff filed an action in state court less than a month after a federal court dismissed her case for lack of subject matter jurisdiction. Scarfo, 817 So.2d at 920. The trial court dismissed the case for exceeding the limitations period. The Fourth District Court reversed, holding that section 1367(d) applied and explaining that the purpose of the tolling provision was to allow plaintiffs to pursue their federal claims in federal court without risking their state claims "should the federal claim prove unsuccessful." Id. at 921. The Fourth District reasoned:

Section 1367(d) provides for a tolling of state law limitations on any state law claim asserted in federal court under section 1367(a). The only requirements are that the claim be asserted under section 1367(a). Plaintiff's dismissed claims arose under state law and they were asserted in federal court under section 1367(a). The mere fact that the federal court of appeals saw the question of the employers' liability under Title VII as an issue of subject matter jurisdiction does not change the text of section 1367.

Id.

Then, in 2011, the Florida Supreme Court addressed the issue in Krause. 59 So.3d at 1088-91. The plaintiff in Krause filed his claims in state court less than one month after a federal court dismissed his case for lack of subject matter jurisdiction. Id. at 1087. The state court also dismissed the case for filing beyond the limitations period and the Second District Court of Appeal affirmed. Id. at 1088. In reversing, the Florida Supreme Court held that "[t]he plain text of the federal statute [ section 1367(d) ] does not, by its terms, bar the application of the tolling provision where a claim is dismissed for lack of federal subject matter jurisdiction." Id. at 1090. It agreed with the analysis in Blinn and Scarfo, noting that the tolling provision "serves to prevent the limitations period from expiring while a plaintiff unsuccessfully pursues state claims in federal court in conjunction with federal claims."

Id. at 1091. It determined that "[a]s we have explained above, the plain language of section 1367 leads us to conclude that the dismissal of a claim in federal court ... for lack of subject matter jurisdiction, does not bar the applicability of the federal tolling provision in the subsequent state court action." Id.

The Official and Employee Defendants attempt to distinguish Krause, contending that it was "bottomed on the premise that the federal claims were at least plausible" and here, the Foleys' federal claims were frivolous. However, Krause makes no such distinction. It did not matter in Krause why the federal court found a lack of jurisdiction. See Krause, 59 So.3d at 1091 (holding that applicability of tolling provision is not limited to instances where court declines to exercise supplemental jurisdiction solely for reasons under section 1367 ); see also Scarfo, 817 So.2d at 921 (holding that "[t]he only requirements [under section 1367(d) ] are that the claim be asserted under section 1367(a)" and later dismissed for lack of subject matter jurisdiction).

For these reasons, we conclude that section 1367(d) applies, as its text does not require a successful assertion of federal jurisdiction. Because the Foleys brought their state court claims within thirty days of the dismissal of their federal case, the trial court erred in finding that the statute of limitations barred their action.

REVERSED and REMANDED.

TORPY, J., concurs.

BERGER, J., dissents with opinion.

While I agree with the majority that the Foleys' complaint was not barred by the statute of limitations, I would nevertheless affirm the order of dismissal under the tipsy coachman doctrine because the record reflects that both the Official and Employee Defendants are entitled to immunity from suit. See Willingham v. City of Orlando, 929 So.2d 43, 50 (Fla. 5th DCA 2006) ("Judgmental or discretionary government functions are immune from legal action ...."); Grady v. Scaffe, 435 So.2d 954, 955 (Fla. 2d DCA 1983) (finding public officials immune for actions taken in connection with public office).

      The trial court has not yet considered the County's motion to dismiss. As such, the County is not a party to this appeal.

      Federal question jurisdiction exists when the action arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331 (2016).

      The Official and Employee Defendants argue that if this Court finds that the amended complaint is not barred by the statute of limitations, we should affirm on tipsy coachman grounds because they are entitled to immunity from suit. Inasmuch as the trial court did not consider that issue, we decline to do so as well. We "cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so." Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009).

      Under the tipsy coachman doctrine, "where the trial court 'reaches the right result, but for the wrong reasons,' an appellate court can affirm the decision only if 'there is any theory or principle of law in the record which would support the ruling.' " Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010) (emphasis is omitted) (quoting Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) ).


text:
    SUBIC BAY MARINE EXPLORATORIUM, INC., Appellant, v. JV CHINA, INC., Appellee.
    Case No. 5D17-4030
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 19, 2018
    Stephen D. Milbrath, of Byrd Campbell, P.A., Winter Park, for Appellant.
    David C. Gibbs III, of Gibbs Law Firm, P.A., Bartonville, Texas, for Appellee.
   ORFINGER, J.

Subic Bay Marine Exploratorium, Inc. ("SBMEI") appeals the dismissal of its amended complaint. It argues that the trial court erred in ruling that it lacked personal jurisdiction over JV China, Inc. ("JV China"). SBMEI contends that by being a domestic Florida corporation, JV China is subject to the general jurisdiction of Florida courts. We agree and reverse.

JV China is a Florida corporation. It was incorporated in Florida in 1996, and has remained an active Florida corporation ever since. Though JV China is a Florida corporation, it maintains its principal place of business in California and conducts much of its business overseas.

The present dispute arises out of a stock subscription agreement, under which JV China agreed to purchase one million shares of SBMEI stock. After JV China allegedly failed to pay the balance owed for the shares, SBMEI filed this action. In turn, JV China moved to dismiss SBMEI's amended complaint, contending the trial court lacked personal jurisdiction over it. The trial court agreed and dismissed SBMEI's amended complaint for lack of personal jurisdiction, concluding that SBMEI "failed to establish that JV China was subject to jurisdiction under Florida's long-arm statute."

SBMEI argues that the trial court erred in dismissing its amended complaint because as a domestic Florida corporation, JV China is subject to the jurisdiction of Florida's courts. Personal jurisdiction denotes a court's ability to exercise jurisdiction over a defendant, whether it is an individual or a corporate entity. Borden v. E.-European Ins. Co., 921 So.2d 587, 591 (Fla. 2006). The primary focus of a court's personal jurisdiction inquiry is the defendant's relationship to the forum state. Bristol-Myers Squibb v. Super. Ct. of Cal., San Francisco Cty., --- U.S. ----, 137 S.Ct. 1773, 1779, 198 L.Ed.2d 395 (2017). General jurisdiction over a defendant, meaning that a defendant can be required to answer any claim that arose anywhere in the world, requires that the defendant be "essentially at home" in the forum state. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home. Id. at 924, 131 S.Ct. 2846.

Florida residents are subject to the general jurisdiction of Florida courts. Patten v. Mokher, 134 Fla. 433, 184 So. 29, 30 (1938). Under Florida law, corporations are residents of their state of incorporation. Fowler v. Chillingworth, 94 Fla. 1, 113 So. 667, 669 (1927) ; see, e.g., Gay v. Bessemer Props., 159 Fla. 729, 32 So.2d 587, 591 (1947) (holding plaintiff was resident of Delaware, where it was incorporated). Consequently, corporations incorporated under Florida law are Florida residents, subject to the general jurisdiction of Florida's courts. See 18 Am. Jur. 2d Corporations § 67 (2018) (indicating for personal jurisdiction purposes, corporation is citizen of state where it was created).

Here, the trial court did not consider JV China's Florida residency. Instead, it applied section 48.193, Florida Statutes (2016), Florida's long-arm statute, which establishes when Florida courts may exercise jurisdiction over non-Florida residents. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla. 1989) (recognizing that long-arm jurisdiction statute sets forth legislature's determination as to "requisite basis for obtaining jurisdiction over nonresident defendants as far as Florida is concerned") (emphasis added). Such an analysis is unnecessary when dealing with a domestic corporation.

For these reasons, we conclude the trial court erred in determining that it lacked personal jurisdiction over JV China, as it is a Florida corporation. Thus, we reverse the trial court's dismissal of SBMEI's amended complaint.

REVERSED and REMANDED.

TORPY and LAMBERT, JJ., concur.

      We review a trial court's order granting a motion to dismiss for lack of personal jurisdiction de novo. Singer v. Unibilt Dev. Co., 43 So.3d 784, 786 (Fla. 5th DCA 2010).

      JV China also argues that the individual who filed the complaint on behalf of SBMEI lacked authority to act for the corporation. The trial court did not rule on this issue. Therefore, we do not consider this argument on appeal. However, we note that generally, lack of authority must be asserted as an affirmative defense unless apparent on the face of the complaint. See Patriotcom, Inc. v. Vega, 821 So.2d 1261, 1261 (Fla. 4th DCA 2002).


text:
    Kelvin Maurice COBB, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1810
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    Kelvin Maurice Cobb, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, SCALES, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Christopher v. State, 489 So.2d 22 (Fla. 1986).