text:
    DEER VALLEY REALTY, INC., Appellant, v. BECK & LEE, P.A., etc., Appellee.
    No. 3D17-2756
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Rice Pugatch Robinson Storfer & Cohen, PLLC, and Chad P. Pugatch and George L. Zinkler, III (Fort Lauderdale); Parker Pohl, LLP, and M. Todd Parker and David M. Pohl (New York, NY), for appellant.
    Cullin O'Brien Law, P.A., and Cullin O'Brien (Fort Lauderdale); Rumberger, Kirk & Caldwell, P.A., and M. Stephen Smith and Michael R. Holt, for appellee.
    Before SUAREZ, EMAS, and SCALES, JJ.
   SUAREZ, J.

Deer Valley Realty, Inc. ["Deer Valley"] appeals from an order summarily striking its pleadings and entering a default as sanctions for violation of a court order to timely secure replacement counsel. We vacate the default, and reverse and remand for entry of either 1) a specific record-based determination that Deer Valley's noncompliance was willful and/or deliberately contumacious and thus warrants the severe sanction of striking the pleadings and default judgment, or 2) reinstatement of Deer Valley's pleadings if the trial court finds that the noncompliance was not willful.

FACTS

Beck & Lee, P.A., d/b/a/ Beck & Lee Business Trial Lawyers ["Beck & Lee"], represented Deer Valley in a 2012 lawsuit against Donald Trump and various other entities in connection with Deer Valley's efforts to purchase a condo unit at one of Trump's Ft. Lauderdale properties. When Deer Valley allegedly failed to pay Beck & Lee's legal fees, Beck & Lee sued for breach of contract. Deer Valley counterclaimed for negligence, overbilling, and malpractice, among others.

The issue here on appeal originates in Deer Valley's counsel's September 3, 2017 motion to withdraw. On September 29, 2017, the trial court granted the motion and gave Deer Valley twenty days to secure replacement counsel. During this twenty-day period, Beck & Lee continued to file discovery motions, which Deer Valley couldn't reasonably address without new counsel. On October 19, 2017, Deer Valley's New Jersey principal timely asked for a twenty-day extension of time to seek and retain new counsel. The following day, on October 20, 2017, Beck & Lee moved to enforce the September 29 order and for sanctions, contending that Deer Valley's counsel's motion to withdraw was calculated to hinder the litigation. Beck& Lee further asserted that the motion for extension of time - as opposed to a motion for relief from the September 29 order - showed contempt for the court's order and administration of justice. Beck & Lee asked the court to sanction Deer Valley by 1) imposing fees and costs; 2) striking and dismissing Deer Valley's counterclaims and pleadings with prejudice, and; 3) entering summary judgment on Beck & Lee's claims. That same day, October 20, 2017, Beck & Lee filed a notice of hearing on its motion for sanctions.

On November 6, 2017, the trial court held a hearing on Beck & Lee's motion for sanctions. Deer Valley was unrepresented at that hearing because it had not yet retained substitute counsel. The following dialog took place:

MR. O'BRIEN: Good morning, Your Honor. Cullin O'Brien, for Beck and Lee. We have a motion to enforce Your Honor's order requiring the corporation to get new counsel when Your Honor allowed the prior counsel to withdraw.
THE COURT: I can't order them to do that. You can have a default. This is post judgment?
MR. O'BRIEN: No, your Honor. You have a trial date.
THE COURT: Okay. Then, you know what, they're in default. There you go. You win. I'm striking their pleadings for failure to obey my order. Write the order, and that's it. That will be a final order. So submit the proposed judgment by 5:00 p.m. tomorrow.
MR. O'BRIEN: Thank you, Your Honor.
THE COURT: Give me the order granting your motion now, but submit the judgment.
MR. O'BRIEN: Thank you, Your Honor.
THE COURT: All right. There you go. Easy as pie.

The trial court summarily struck Deer Valley's pleadings and counterclaims and entered a final default judgment against it. Deer Valley's new counsel filed a timely motion for rehearing and/or reconsideration which the trial court denied. Deer Valley appeals.

ANALYSIS

We vacate the default and reverse the order striking Deer Valley's pleadings and remand for the trial court to hold an evidentiary hearing to determine whether Deer Valley's noncompliance with the order to timely secure replacement counsel was willful and deliberate, whether the record supports any finding of willful disobedience of a court order, and whether a sanction less than striking the pleadings is more appropriate.

When a default judgment is entered against a party for failure to obey a court order, the order of default must contain specific findings of the noncomplying party's willful or deliberate refusal to obey the court order. See Ham v. Dunmire, 891 So.2d 492, 495 (Fla. 2004) ("Dismissing an action with prejudice as a sanction for failing to comply with court orders is 'the most severe of all sanctions which should be employed only in extreme circumstances.' " (quoting Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983) ); Rodriguez v. Kalish, 766 So.2d 411 (Fla. 3d DCA 2000) ; Munoz v. Alvarez, 774 So.2d 801 (Fla. 3d DCA 2000) (reversing and remanding, on appeal from an order dismissing the case because of a supposed violation of a court order to secure replacement counsel, because the order did not, as required, state that the claimed noncompliance was willful or deliberate); Visoly v. Kluger, Peretz, Kaplan & Berlin, P.A., 707 So.2d 427, 428 (Fla. 3d DCA 1998) (holding that striking a parties' pleadings is the most extreme sanction, and a trial court is required to make an express determination as to whether the offending party's actions were willful or deliberate); see Commonwealth Fed. Sav. & Loan Ass'n v. Tubero, 569 So.2d 1271, 1272 (Fla. 1990) ("By insisting upon a finding of willfulness, there will be the added assurance that the trial judge has made a conscious determination that the noncompliance was more than mere neglect or inadvertence.").

This Court in Baja Village Markets held, on appeal from the trial court's order striking the pleadings and entering a Final Default Judgment against the appellant, that

The trial court's action was based on the appellant's failure to comply with a court order directing that it retain new counsel within thirty days from the time its prior counsel was permitted to withdraw from the case. It is well-settled that the striking of a party's pleadings is a severe sanction which can only be imposed upon a party's willful and deliberate disregard of a court's authority. Mere negligence does not suffice to justify such an extreme measure, and mere noncompliance with a court order, standing alone, is insufficient to indicate willfulness. See K&K World Enter., Inc. v. Union SPOL, S.R.O., 692 So.2d 1000, 1002 (Fla. 3d DCA 1997). In addition, it is equally clear that before a court may strike a party's pleadings, "a trial court is required to make an express determination as to whether the offending party's actions were willful or deliberate." See Visoly v. Kluger, Peretz, Kaplan & Berlin, P.A., 707 So.2d 427, 428 (Fla. 3d DCA 1998). There was no finding by the lower court that the appellant's failure to comply with the court's order was willful, deliberate, or in disregard of the court's authority, and the record could not support any such finding. As such, we reverse the Final Judgment and remand this case to the trial court for further proceedings consistent with this opinion.

Baja Vill. Markets, Inc. v. Baja Supermarket, Inc., 712 So.2d 465, 466 (Fla. 3d DCA 1998).

Because the trial court struck Deer Valley's pleadings and counterclaims, and entered a default final judgment without making the required express findings that Deer Valley's failure to timely secure replacement counsel was willful, deliberate, or in disregard of the court's authority, we reverse the orders on appeal and remand for an evidentiary hearing. Should the court find those sanctions appropriate, it shall include express findings and record support for such in the order. Should the court find that Deer Valley's noncompliance was not willful, it shall reinstate Deer Valley's pleadings.

Reversed and remanded.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      The record on appeal does not contain any order indicating that the trial court had ruled on Deer Valley's October 19 motion for an extension of time to secure replacement counsel prior to the November 6 sanctions hearing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gerardo MONSIVAIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1511
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).


text:
    Brenda NESTOR, etc., Appellant, v. The ESTATE OF Victor POSNER, Appellee.
    No. 3D16-1330
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander and Brian C. Tackenberg, Key Biscayne, for appellant.
    Akerman LLP, and Brett Marks, Fort Lauderdale, Dale Noll and Richard C. Milstein, Miami, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   PER CURIAM.

Brenda Nestor appeals an order granting a joint motion to approve a settlement agreement between the Estate of Victor Posner and the Pension Benefit Guaranty Corporation ("PBGC"), pursuant to section 733.708, Florida Statutes (2016). We hold that the trial court did not abuse its discretion in approving the settlement agreement, and affirm.

Following Mr. Posner's death in 2002, Nestor, the sole residuary beneficiary of his estate, was appointed personal representative of the Estate by the trial court. Posner had owned several companies, and sponsored a single-employer defined benefit pension plan covered by Title IV of ERISA.

In 2011, due to a lack of activity moving the Estate toward a final resolution, the trial court ordered Nestor to "propose a plan for ascertaining and paying the federal and state estate tax obligations," or show cause why the court should not appoint an attorney ad litem to assist in closing the probate of the Estate. In May 2012, apparently unsatisfied with Nestor's response to the show cause order, the trial court appointed Michael Axman "to serve as attorney/administrator ad litem, and representative of the creditors and beneficiaries of the estate, and special fiduciary."

During Axman's tenure, it came to light that no contributions had been paid to the ERISA pension plan since 2010, and in July 2013, PBGC filed notices of federal liens against the Estate and the VP Entities. Nestor attempted at that time to settle the pension obligations with PBGC, but she was unsuccessful.

On July 24, 2013, Axman filed his initial report, detailing these and other pertinent matters, and reported that as of the report date, the Estate (and the VP Entities) faced a liability of more than $38 million as a result of the failure to pay pension plan contributions.

In April 2015, Nestor was removed as the Estate's personal representative based on, inter alia, her failure to comply with court orders requiring an accounting, and the trial court appointed a curator. Six months later, in October 2015, the Estate and PBGC executed a settlement agreement providing terms for terminating the pension plan and paying the obligations owed to PBGC. The Estate and PBGC filed a joint motion to approve the settlement agreement, and the lone objector was Nestor, who argued that the settlement agreement was not in the best interest of the interested persons. In April 2016, the trial court held an evidentiary hearing on the joint motion to approve the settlement agreement. The evidence presented at that hearing established, inter alia:

• At the time the settlement agreement was executed, the Estate and the VP Entities owed $46.7 million as a result of the unpaid pension plan contributions;
• Under the terms of the settlement, the maximum allowed claim against the Estate and VP Entities would be $32.25 million, consisting of:
• A first-priority claim of $28 million against the sale of certain real estate assets of the Estate and the VP entities;
• An unsecured claim for any balance after the sale of those real estate assets, to be paid after professionals and IRS obligations are paid and distributed pro rata with other unsecured claims.
• The agreement reduced the liability of the Estate and the VP Entities by 31% (from $46.7 million to $32.25 million); and
• PBGC would not initiate or complete foreclosure actions against the estate assets while the agreement was in effect.

After considering the evidence presented, including testimony from Nestor, the trial court approved the settlement. On appeal, Nestor contends that the trial court erred in approving the settlement without competent substantial evidence, and erred in concluding the settlement was in the best interests of the interested persons.

Upon our review of the record, we hold that the trial court's determinations are supported by competent substantial evidence and the trial court did not abuse its discretion in granting the joint motion and approving the settlement. See In re Paine's Estate, 128 Fla. 151, 174 So. 430, 437 (1937) (confirming that the trial court may approve a settlement "if it is fair, beneficial to the estate, and free from fraud, negligence or misconduct"); Buettner v. Estate of Buettner, 993 So.2d 640 (Fla. 4th DCA 2008) ; Security Ins. Co. v. Estate of Stillson, 397 So.2d 1206 (Fla. 1st DCA 1981). See also In re Estate of Dickson, 559 A.2d 331, 334 (D.C. 1989) (adopting the abuse of discretion standard of review established in Stillson, and further observing: "In deciding whether to grant the petition to settle, the trial court must determine that the settlement is in the best interest of the estate, and that the personal representative has fulfilled his or her fiduciary duty to act as a 'prudent person.' In making these determinations, the court should consider, among other factors, the validity of the claim, the personal representative's investigation of the claim, and the defenses to the claim, and the reasonableness of the compromise") ) (citations omitted).

Affirmed.

      Employment Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 -1461. "PBGC is the United States government agency that insures pensions in accordance with title IV of ERISA. If a plan sponsor is unable to support its defined benefit pension plan, PBGC becomes the statutory trustee of the plan and pays guaranteed pension benefits according to the plan provisions, subject to legal limits set by Congress under ERISA." PBGC Case No. 206371, 2018 WL 3104865 (April 30, 2018). See also 29 U.S.C. § 1302. Following Posner's death, the Estate became the contributing sponsor of the pension plan and his various companies ("VP Entities") were all members of the plan's "controlled group," jointly and severally liable for certain pension related obligations.

      PBGC is authorized to settle claims with those who become liable for a failure to make required contributions under ERISA plans. 29 U.S.C. § 1367.

      Nestor appealed her removal as personal representative, and we affirmed the trial court's order on April 6, 2016. Nestor v. Estate of Victor Posner, 191 So. 3d 472 (Fla. 3d DCA 2016).

      Section 733.708, Florida Statutes (2015) provides in pertinent part:
      When a proposal is made to compromise any claim, whether in suit or not, by or against the estate of a decedent or to compromise any question concerning the distribution of a decedent's estate, the court may enter an order authorizing the compromise if satisfied that the compromise will be for the best interest of the interested persons. The order shall relieve the personal representative of liability or responsibility for the compromise (emphasis added).

      Litigation against several VP Entities had already been commenced and was pending at the time of the settlement.

      We affirm without further discussion the remaining issues raised by Nestor in this appeal.


text:
    Derek Vernon MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-383
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Jones Walker, LLP and Edward R. Shohat, Jon A. May and Melissa A. Campbell, for appellant.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.
   PER CURIAM.

Appellant Derek Vernon Medina appeals his convictions and sentences for second-degree murder of his wife, Jennifer Alfonso; shooting or throwing a deadly missile; and child neglect. Appellant contends that the trial court erred in: (1) excluding defense expert testimony regarding battered spouse syndrome; (2) excluding evidence regarding the discovery of certain drugs in a drawer of the home where appellant shot and killed the decedent; (3) excluding defense expert testimony regarding "shadow analysis" purportedly to establish the decedent's position when she was shot by appellant; (4) admitting a video of appellant boxing; and (5) denying appellant's motion for disqualification of the trial judge. In his sixth and final claim, appellant asserts that the prosecutor's closing argument improperly expressed personal beliefs regarding whether the decedent was the aggressor, resulting in fundamental error. We affirm, and address several of the claims raised by appellant.

First, we hold that the trial court properly excluded appellant's proffered expert testimony regarding battered spouse syndrome, as it was not predicated upon facts in evidence, but instead upon hearsay evidence deemed inadmissible by the trial court. See State v. Hickson, 630 So.2d 172, 176 (Fla. 1993) (holding that expert testimony on battered spouse syndrome permits an expert to provide the trier of fact "information beyond the understanding of the average layman" and to answer hypothetical questions "predicated on facts in evidence") (emphasis added). Importantly, the trial court did not unconditionally prohibit the expert from testifying. Instead, and consistent with Hickson, the trial court ruled that it would permit the expert to testify in order to educate the jury about battered spouse syndrome and to answer certain hypothetical questions, if the defense established the proper predicate for such testimony. Because appellant chose not to testify, was not examined by the defense expert, and introduced no evidence to demonstrate that he suffered any cycle of battering by the decedent, the necessary predicate was not established and the trial court properly excluded the expert's proposed testimony.

Next, we hold that the trial court properly excluded evidence that, two months after the shooting, a bottle containing Alpha-PVP pills was found by a defense investigator in a drawer near the kitchen where the shooting occurred. The defense proffered this as evidence that the decedent was under the influence of these drugs on the day of the crime, causing her to be the aggressor. In support of appellant's contention, defense counsel offered a video depicting the decedent opening the same drawer on the day of the killing. However, the video did not show the decedent removing anything from the drawer, and no evidence was presented that the decedent had ingested, or was under the influence of, drugs on the day of the crime. The trial court determined that the discovery of these pills (two months after the crime) was too remote in time given that many people had unfettered access to the home during the intervening time period, and concluded that the presence of these drugs was not sufficiently linked to the decedent or to the actions of the decedent on the day of the murder, and thus, was not relevant. The trial court also found that no evidence was presented that appellant was aware that the decedent was taking or under the influence of such drugs on the day of the crime. We find no abuse of discretion in the trial court's decision not to admit this evidence. See Kopsho v. State, 84 So.3d 204 (Fla. 2012) ; Street v. State, 636 So.2d 1297 (Fla. 1994) ; Cooper v. State, 778 So.2d 542 (Fla. 3d DCA 2001) ; Gartner v. State, 118 So.3d 273 (Fla. 5th DCA 2013). See also Munoz v. State, 45 So.3d 954 (Fla. 3d DCA 2010).

In addition, we hold that the trial court did not err in excluding defense expert testimony regarding "shadow analysis" performed of the crime scene. The State filed a motion in limine, seeking to exclude this evidence, and both parties requested that the trial court, in determining whether the expert testimony was admissible, apply the test set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and section 90.702, Florida Statutes (2013). The trial court did so, and excluded the testimony upon a finding that it failed to meet the Daubert standard for admissibility of expert testimony. Appellant does not contend here that the trial court erred in not applying the Frye test, nor could it do so in light of the joint request that the trial court apply Daubert to determine admissibility of this testimony. On the merits, we find the trial court committed no error in its analysis or in its exclusion of the proposed expert testimony. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786 (articulating some relevant factors a trial court may consider in determining the admissibility of expert testimony, including: (1) whether the scientific theory or technique has been tested; (2) whether the scientific theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error; (4) the existence of any standards controlling the technique's operation; and (5) whether the theory or technique is generally accepted within the relevant scientific community); Kumho Tire v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (observing that the objective of the trial court's "gatekeeping" function, as required by Daubert, "is to ensure the reliability and relevancy of expert testimony" and "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field;" and concluding "that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.")

Finally, we hold that the prosecutor's closing argument did not constitute an improper expression of personal belief or suggest he was aware of the existence of other evidence not presented at trial. Rather, read in context, the prosecutor was simply offering argument in reply to the defense's closing argument, which postulated that if the decedent had armed herself with a knife before appellant threatened her with a gun, she was justified in doing so under the circumstances. See Lot v. State, 13 So.3d 1121 (Fla. 3d DCA 2009). Further, appellant made no contemporaneous objection to the prosecutor's argument, failing to preserve the issue for appeal. See McDonald v. State, 743 So.2d 501, 505 (Fla. 1999) ; Sampson v. State, 213 So.3d 1090 (Fla. 3d DCA 2017). Under such circumstances, we may review the claim only for fundamental error, and we find no such error here. See id. at 1092. See also State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991) (holding: "To justify not imposing the contemporaneous objection rule, 'the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.' ") (quoting Brown v. State, 124 So.2d 481, 484 (Fla. 1960) ).

Affirmed.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.

      Appellant contends that certain statements made by the decedent to third persons (to establish this requisite predicate) should have been deemed admissible as statements against penal interest under section 90.804(2)(c), Florida Statutes (2013). However, this basis for admissibility was not raised below and, in the absence of fundamental error, is not properly preserved for our review. See Steinhorst v. State, 412 So.2d 332 (Fla. 1982) ; Seaman v. State, 608 So.2d 71 (Fla. 3d DCA 1992) ; Carabella v. State, 727 So.2d 270 (Fla. 4th DCA 1999). Even if this issue had been properly preserved, it is without merit. While it is true that a statement against penal interest is admissible if the declarant (here, the decedent) is "unavailable" as a witness-which is defined to include a declarant who is "unable to be present or to testify at the hearing because of death," see § 90.804(1)(d) -it is subject to the following exception: "However, a declarant is not unavailable as a witness if such ... inability to be present ... is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying." § 90.804(1)(e). See State v. Villarreal, 990 So.2d 1166 (Fla. 3d DCA 2008). And on the merits, we find no abuse of discretion in the trial court's determination that these statements did not qualify as statements against penal interest. See generally Masaka v. State, 4 So.3d 1274 (Fla. 2d DCA 2009).
      Appellant further contends that the exclusion of this evidence denied him his constitutional right to present a defense, citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). To the extent that this claim was properly preserved below, we are unpersuaded that the trial court's evidentiary rulings resulted in a deprivation of appellant's sixth amendment right to present a defense. As Chambers itself acknowledged: "In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures." Id. at 302, 93 S.Ct. 1038. See also Jones v. State, 709 So.2d 512, 524-25 (Fla. 1998) (noting that that the "Supreme Court stated in Chambers that it was establishing no new standards of constitutional law, nor was it diminishing the authority of the states over their own trial rules"). In Montana v. Egelhoff, 518 U.S. 37, 52-53, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), the Court clarified the limited contours of Chambers' holding, noting that Chambers was "an exercise in highly case-specific error correction" and that "the holding of Chambers-if one can be discerned from such a fact-intensive case-is certainly not that a defendant is denied 'a fair opportunity to defend against the State's accusations' whenever 'critical evidence' favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation." (quoting Chambers, 410 U.S. at 294, 302, 93 S.Ct. 1038 ). See also Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (observing that a defendant "does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.")

      Appellant represented that Alpha-PVP is one of a class of drugs commonly referred to as "bath salts" and proffered that an expert would testify such a drug may cause its user to act in an aggressive manner.

      Following discovery of these pills, a drug screen performed on the decedent's blood revealed no evidence of Alpha-PVP.

      Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). At the time of the trial, there remained an open question whether Florida courts were required to continue to follow the Frye standard or whether they should apply the Daubert standard, adopted by the Florida Legislature in 2013. See ch. 2013-107, Laws of Fla. The Florida Supreme Court approved this statutory change only to the extent it was procedural, but did not directly answer the question of whether such evidentiary determinations are substantive or procedural. See In re Amendments to Fla. Evidence Code, 210 So.3d 1231, 1239 (Fla. 2017). During the pendency of the instant appeal, the Florida Supreme Court answered this question in Delisle v. Crane Co., 258 So.3d 1219, 2018 WL 5075302 (Fla. October 15, 2018), holding that section 90.702, as amended in 2013, is procedural and not substantive, and "reaffirm[ing] that Frye, not Daubert, is the appropriate test in Florida courts." Id. at 1229, 2018 WL 5075302, at *8.

      Any error in this regard would have been invited by appellant. See Czubak v. State, 570 So.2d 925, 928 (Fla. 1990) (explaining that, under the "invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal").

      Prior to this comment by the prosecutor, defense counsel made the following comment in his closing argument to the jury: "Let me tell you what I think happened. I think [the decedent] had the knife." (Emphasis added.). In reply to this very argument, the prosecutor argued: "Well, you know what I say, if that's true good for her, good for her, because the person who was threatened with imminent death at that moment was [the decedent] when her husband walked up on her, minding her own business, waving a gun at her face." (Emphasis added). While it is unlikely either of these arguments will serve as an example of "best practices," we conclude that, read in context, neither of these statements by counsel rose to the level of harmful error. At most, the phrases used were figures of speech intended not to express a personal belief or suggest the existence of other evidence not presented to the jury, but simply as an effort to argue, from their respective points of view, what each attorney thought the jury should find was established by the evidence presented and inferences from that evidence. See Lowder v. Econ. Opportunity Family Health Center Inc., 680 So.2d 1133 (Fla. 3d DCA 1996) ; Forman v. Wallshein, 671 So.2d 872 (Fla. 3d DCA 1996).

      We affirm without further discussion the other issues raised by appellant.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee Under the Indenture Relating to IHM Assets Corp., Collateralized Asset-Backed Bonds, Series 2004-7, Appellant, v. SOMBRERO BEACH ROAD, LLC, a Florida Limited Liability Company, et al., Appellees.
    No. 3D16-2884
    District Court of Appeal of Florida, Third District.
    Opinion filed November 28, 2018
    Blank Rome LLP, Anthony R. Yanez and Nicole R. Topper (Fort Lauderdale), for appellant.
    Oppenheim & Pilelsky, Yanina Zilberman, Roy D. Oppenheim, Geoffrey E. Sherman and Jacquelyn Trask (Weston), for appellees.
    Before, SUAREZ, SCALES, and LUCK, JJ.
   PER CURIAM.

Deustche Bank National Trust Company, as Indenture Trustee under the Indenture Relating to IHM Assets Corp., Collateralized Asset Backed Bonds, Series 2004-7 ("Deutsche Bank"), the plaintiff below, appeals a final order dismissing with prejudice its foreclosure action for Deutsche Bank's alleged repeated failure to comply with unspecified trial court orders. We reverse and remand for the trial court to hold an evidentiary hearing to apply the factors espoused in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993) (requiring the trial court to conduct a six-factor analysis when determining whether dismissal with prejudice is an appropriate sanction for the misconduct of trial counsel).

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

In June 2015, Deutsche Bank filed the instant action to foreclose on a residential mortgage encumbering real property located in Monroe County. In June 2016, the appellees, defendants below, filed their answer and affirmative defenses to the complaint.

On August 1, 2016, the trial court entered an order ("the Trial Order") setting the case for trial in November 2016, and also scheduling a pre-trial conference before a special master on September 15, 2016. The Trial Order specified that both the trial attorneys and the parties were required to attend the pre-trial conference, the failure of which could result in dismissal of the action.

Neither a representative from Deutsche Bank, nor Deutsche Bank's trial counsel, attended the September 15, 2016 pre-trial conference. Consequently, the special master entered a report and recommendation recommending that Deutsche Bank's complaint be dismissed for its failure to appear at the pre-trial conference.

On September 20, 2016, Deutsche Bank filed an exception to the special master's recommendation of dismissal, attaching an affidavit of the Hearings Department Supervisor from the law firm that represented Deutsche Bank in the lower proceedings. In the affidavit, the Hearings Department Supervisor attested that the law firm had received the Trial Order on August 2, 2016, but that "the Pre-trial Conference cited within the Order and scheduled for September 15, 2016, was never placed on the ... Attorney Hearing Calendar nor was the Plaintiff itself notified that it was required to appear at said hearing, due to my department's failure to enter that information into the internal case management system."

On September 26, 2016, the appellees filed their response in opposition to Deutsche Bank's exceptions to the special master's recommendation of dismissal. Therein, the appellees alleged additional grounds for the trial court to dismiss the action beyond Deutsche Bank and its trial counsel's failure to attend the September 15, 2016 pre-trial conference. Specifically, the appellees alleged, among other things, that: (i) Deutsche Bank and its current trial counsel had failed to comply with various requirements set forth in a March 7, 2016 scheduling order in this case; and (ii) in a prior action to foreclose the same mortgage before a different trial judge, Deutsche Bank and its prior counsel had similarly failed to comply with the various requirements set forth in a scheduling order resulting in the prior action ultimately being dismissed without prejudice.

On November 2, 2016, without conducting a hearing on Deutsche Bank's exceptions or the appellees' response, the trial court entered an order ratifying and approving the special master's recommendation that the instant foreclosure action be dismissed, for failure to attend the September 15, 2016 pre-trial conference. Immediately thereafter on that same day, and also without holding a hearing, the trial court then entered a separate order giving additional grounds for the lower court's dismissal of this action. In this second order, the trial court explained that, while it normally would not dismiss a case with prejudice for failure to attend a pre-trial conference, repeated violations of court orders in both the instant foreclosure action and the prior foreclosure action warrant the extreme sanction:

[T]he Plaintiff[ ] admits that it received a notice setting the cause for a pre-trial conference, and a trial date. Due to secretarial error, the Plaintiff failed to appear for both.
In support of this motion, the Plaintiff correctly points out that Florida Courts are loath to dismiss cases, preferring to decide them on the merits. It correctly cites numerous cases supporting that salutary policy.
Had this secretarial error existed in a vacuum, the Court would not hesitate in reinstating the case to the calendar. However, that is not the case here. This is the second foreclosure action on the same mortgage. The first was dismissed, without prejudice, for failing to abide by court orders. In this action, the Plaintiff has followed the pattern set in the first. The Plaintiff has repeatedly failed to comply with Court orders. Should the Court dismiss without prejudice or return the case to the trial calendar, how could it be assured that the pattern will not be repeated? Clearly, it cannot.

On November 7, 2016, the trial court entered a final order of dismissal with prejudice. That same day, Deutsche Bank moved for rehearing, arguing that the trial court had failed both to: (i) provide Deutsche Bank with an evidentiary hearing, and (ii) engage in the six-factor analysis to determine whether a dismissal with prejudice was an appropriate sanction for the errant conduct of Deutsche Bank's trial counsel. See Kozel, 629 So.2d at 818. The trial court denied the motion for rehearing, and Deutsche Bank appealed.

II. ANALYSIS

Dismissing an action with prejudice as a sanction for failing to comply with multiple court orders is "the most severe of all sanctions which should be employed only in extreme circumstances." Ham v. Dunmire, 891 So.2d 492, 495 (Fla. 2004) (quoting Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983) ). "While no 'magic words' are required, the trial court must make a 'finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.' " Id. at 496 (quoting Commonwealth Fed. Sav. & Loan Ass'n v. Tubero, 569 So.2d 1271, 1273 (Fla. 1990) ).

To ensure that a party is not overly punished for the errors of the party's trial counsel, the Florida Supreme Court has articulated a six-factor test that the trial court must consider when determining whether dismissal with prejudice is warranted due to counsel's errant conduct:

1) whether the attorney's disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Kozel, 629 So.2d at 818. In conducting this analysis, the trial court "must make express findings of fact concerning each of the Kozel factors." Deutsche Bank Nat'l Trust Co. v. Cagigas, 85 So.3d 1181, 1182 (Fla. 3d DCA 2012) ; see also Deutsche Bank Nat'l Trust Co. v. Avila-Gonzalez, 164 So.3d 90, 93 (Fla. 3d DCA 2015) ("This Court has also recognized that [ Kozel ] findings must be included in the trial court's order."). This generally requires the trial court to conduct an evidentiary hearing. See Chappelle v. S. Fla. Guardianship Program, Inc., 169 So.3d 291, 293 (Fla. 4th DCA 2015) ; Celebrity Cruises, Inc. v. Fernandes, 149 So.3d 744, 752 (Fla. 3d DCA 2014) ; Toll v. Korge, 127 So.3d 883, 887-88 (Fla. 3d DCA 2013).

In this appeal, the appellees argue that the trial court was not required to conduct the Kozel analysis, claiming that, on this record, it is apparent that Deutsch Bank itself, rather than Deutsche Bank's trial counsel, was guilty of the misconduct cited by the trial court. See Avila-Gonzalez, 164 So.3d at 93 ("The Borrower argues that Kozel and its progeny are inapplicable because the trial court's findings focus on the Bank's conduct as opposed to that of counsel. The law supports this argument."); Ledo v. Seavie Resources, LLC, 149 So.3d 707, 710 (Fla. 3d DCA 2014) ("Since Ledo was sanctioned for his own failures to comply with court orders while he was acting pro se , Kozel has no application here."). We disagree. In this case, it appears the trial court's orders approving the special master's recommendation of dismissal found that Deutsche Bank's counsel was responsible for the misconduct at issue here. We remand to allow the trial court to conduct an evidentiary hearing and ultimately make the determination using the Kozel factors, as to whether dismissal is an appropriate sanction.

While this Court certainly appreciates the trial court's frustration with the careless conduct evidenced in these cases, on this record we are unable to conclude that Deutsche Bank (the party) was solely responsible for violating the orders resulting in the challenged final order of dismissal.

III. Conclusion

Because the trial court dismissed the instant action without conducting the required Kozel analysis, we vacate the final order of dismissal and remand for an evidentiary hearing to allow the trial court to consider the Kozel factors. See Toll, 127 So.3d at 888 ; Cagigas, 85 So.3d at 1181 ; Alsina, 83 So.3d at 964. Should the trial court determine that sanctions, including dismissal with prejudice, are appropriate, the trial court shall include in its written order findings of fact with respect to each Kozel factor, and also individualized findings with regards to the conduct of those individuals the lower court intends to sanction. See Toll, 127 So.3d at 888 ; Cagigas, 85 So.3d at 1181.

Reversed and remanded with instructions.

      See Fla. R. Civ. P. 1.200(c) ("20 days' notice must be given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof of witnesses, or take any other appropriate action."); U.S. Bank Nat'l Ass'n v. Martinez, 188 So.3d 107, 108 (Fla. 5th DCA 2016) (recognizing that in order to dismiss an action under rule 1.200(c) for failure to attend a pre-trial conference, "the trial court must explicitly find that the party's actions were willful, flagrant, deliberate, or otherwise aggravated"); Insua v. World Wide Air, Inc., 582 So.2d 102, 103-04 (Fla. 2d DCA 1991) (finding that, in order to impose sanctions under rule 1.200(c) for failure to attend a pre-trial conference, the party "should be given notice and an opportunity to appear before the trial court to explain the violation or present any evidence in mitigation").

      Throughout the second order, the trial court uses the term "the Plaintiff" and does not differentiate between those actions and omissions of Deutsche Bank warranting sanctions, and those actions and omissions of Deutsche Bank's counsel that would warrant sanctions.

      "While dismissal of a complaint for non-compliance with a court order is subject to an abuse of discretion standard of review, failure to apply the standards for the sanction of dismissal set forth in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), is in itself a basis for reversal and remand for application of those standards." Alsina v. Gonzalez, 83 So.3d 962, 964 (Fla. 4th DCA 2012) (citations omitted).

      The trial court found that "Plaintiff has repeatedly failed to comply with Court orders" in the two foreclosure actions, but did not identify the specific orders and directives that were not followed. While our view of the record reflects that the lower court likely relied upon the various trial court orders cited in the appellees' response in opposition to Deutsche Bank's exceptions to the special master's recommendation of dismissal, if, on remand, the trial court relies upon failure to comply with orders as a basis for sanctions, such orders should be identified with specificity.

      We express no opinion as to whether Deutsche Bank or its counsel violated any order of the lower court. See Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5th DCA 2006) ("[A]n evidentiary hearing is mandated to determine the clients' involvement or complicity in the attorney's conduct."); see also Toll, 127 So.3d at 887 ("The trial court failed to hold an evidentiary hearing and failed to make the necessary findings under Kozel, rendering it impossible to determine whether the Defendants' collective dilatory conduct was personally attributable to Toll, to another defendant, or to Toll's counsel.").


author: ROTHENBERG, C.J.

text:
    D & E REAL ESTATE, LLC, Appellant, v. Jose VITTO, Appellee.
    No. 3D18-376
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2018
    Kaplan, Young & Moll Parrón PLLC, and Justin B. Kaplan and Matthew S. Sarelson, for appellant.
    Berger Singerman LLP, and David L. Gay, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

The defendant below, D & E Real Estate, LLC ("D & E"), appeals from the final judgment entered by the trial court granting the plaintiff, Jose Vitto's ("Dr. Vitto"), claim for specific performance. We affirm.

SUMMARY OF THE EVIDENCE

In 2002, David Cooper, Mel Cooper, Eric Ramos, and a fourth member of a limited liability company purchased twelve preconstruction units at the Fontainebleau condominium building in Miami Beach through the members' limited liability company. After a few years, the fourth member split from the limited liability company, and the remaining members, along with David Cooper's wife, Clara, formed Imperial Capital LLC ("Imperial") and took ownership of eight of the twelve condominium units. Sometime thereafter, Imperial fell behind on the mortgage payments and the banks commenced foreclosure proceedings.

In 2011, David Cooper and Ramos had a falling out with Mel Cooper, and ultimately Imperial transferred four of the units, including units 2601 and 2603, which are the subject of this lawsuit, to D & E. However, the foreclosure actions continued against Imperial.

The underlying action for specific performance stems from a January 28, 2014 contract between D & E and Dr. Vitto for the sale and purchase of units 2601 and 2603, which are two of the condominium units that were transferred from Imperial to D & E. The agreed upon sale price for these two units was $1,700,000. After executing the contract, it is undisputed that Dr. Vitto timely paid the agreed-upon deposits in the amount of $170,000.

When D & E and Dr. Vitto entered into the subject contract, which had a projected closing date of March 31, 2014, units 2601 and 2603 were in foreclosure and a foreclosure sale date had been set for the sale of unit 2601. However, D & E moved to reschedule the foreclosure sale date based on D & E's contract to sell unit 2601 (and 2603) to Dr. Vitto, D & E's receipt of Dr. Vitto's $170,000 deposit, and D & E's representation that, based on the contract, it would be able to satisfy its debt to the foreclosing bank. The foreclosure court granted D & E's motion and rescheduled the foreclosure sale to April 9, 2014, which was after the projected closing date.

However, prior to the closing date, Mel Cooper, on behalf of himself and Imperial, filed for bankruptcy in the Southern District of New York, thus creating a cloud on title. In the bankruptcy case, Imperial claimed that it had an interest in the subject units despite the fact that Imperial had transferred the units to D & E in 2011. On March 4, 2014, David Cooper, Ramos, and Clara Cooper (David Cooper's wife) filed a motion to dismiss the bankruptcy action, claiming that Mel Cooper had no authority to file for bankruptcy on behalf of Imperial.

A few days later, on March 6, 2014, Anthony DeYurre, counsel for D & E, contacted Neal Litman, Dr. Vitto's real estate attorney, to notify him of the title defect and to inform Dr. Vitto that D & E was attempting to cure the title defect. On April 1, 2014, Litman emailed DeYurre to inquire whether D & E wished to extend the closing date under the contract. DeYurre forwarded the email to David Cooper and Ramos and asked if they wanted to "extend the closing date" or wait and "see if the buyer [would] walk away?" Ramos immediately responded that they should extend the closing date, and David Cooper agreed. Notwithstanding David Cooper's and Ramos' express intent to extend the closing date, the record does not reflect that DeYurre ever responded to Litman's email.

On April 4, 2014, due to the ongoing bankruptcy proceedings, the bank moved to cancel the foreclosure sale of units 2601 and 2603, which had been rescheduled to April 9, 2014 based on D & E's contract with Dr. Vitto. On May 5, 2014, DeYurre, D & E's counsel, filed a notice of bankruptcy with the trial court to stay the foreclosure sale of the two units. Meanwhile, the motion to dismiss the bankruptcy proceedings in the Southern District of New York was heard on May 28, 2014. Although the motion was denied, the bankruptcy court advised counsel that if the parties identified any assets which they believed they had a right to take possession of, the parties could move for a stay and the bankruptcy court would grant stay relief as to those properties. Despite the bankruptcy court's assurances that it would essentially remove the subject units from the bankruptcy proceedings upon a motion identifying the property which D & E believed it had a right to take possession of, D & E never filed any motion identifying units 2601 and 2603 as its property, nor did D & E attempt to demonstrate Imperial's transfer of these units to D & E in 2011.

A few days later, on June 3, 2014, Litman emailed DeYurre asking for an update. In this communication, Litman told DeYurre that although it was clear that D & E had not been making a diligent effort to clear the title defect, "in an abundance of caution," Dr. Vitto was giving D & E notice that he was electing to extend the cure period to 120 days as provided by the contract. There is no record evidence that DeYurre responded to this email.

Litman again emailed DeYurre on June 13, 2014, attaching an updated title commitment and again inquiring as to whether there had been any progress on the title issues. On this same day, Litman contacted Michael Venditto, D & E's bankruptcy counsel, regarding the updated title commitment and inquiring as to what needed to be done to obtain relief. On June 18, 2014, Venditto told Litman that Imperial and Mel Cooper "definitely would consider allowing the sales to proceed" but they needed certain documents, including the contract, in order to do so. Litman forwarded Venditto's email to DeYurre.

On July 9, 2014, Litman sent Venditto a copy of the contract. On September 29, 2014, Litman wrote to Venditto asking for an update. The record reflects that Venditto forwarded this correspondence to David Cooper, Ramos, and DeYurre, and in this communication Venditto expressed uncertainty as to whether the contract was still enforceable. DeYurre responded by informing Venditto that he intended to send a notice to Dr. Vitto cancelling the contract. However, DeYurre did not send cancellation notices to Litman or Dr. Vitto, and on January 4, 2015, Litman again emailed DeYurre questioning DeYurre regarding his unreturned phone calls and requesting that DeYurre call him. DeYurre did not respond. Thereafter, Dr. Vitto demanded that D & E fulfill its obligations under the contract. D & E responded that the contract had terminated.

The three-count complaint sought specific performance against D & E (Count I), injunctive relief to prohibit D & E from transferring the properties prior to the resolution of the action (Count II), and money damages from David Cooper and Ramos for fraudulent misrepresentation (Count III). Following a five-day trial, the trial court entered its findings of fact and conclusions of law, finding among other things, that Dr. Vitto was entitled to specific performance of the contract. This appeal followed.

THE TRIAL COURT'S ORDER

In the final judgment, the trial court made the following findings. The properties are unique. Dr. Vitto was ready, willing, and able to close absent the title defect. Dr. Vitto did not obtain an extension of the March 31, 2014 closing date due to D & E's claim that they could not close. A party cannot insist on performance of a condition precedent that it has, itself, frustrated or prevented, and a buyer is not required to tender the purchase price if title is not marketable.

The trial court further found that any question as to the timeliness of the updated loan commitment was waived because D & E failed to raise this issue. The trial court also emphasized that it is usually the buyer that discovers a defect and notifies the seller. Here, it was D &E that notified Dr. Vitto of the bankruptcy case and its intention to cure the defect. Thus, Dr. Vitto had no obligation to notify D & E within five days of receiving the title commitment regarding the defect to title, as required under the contract. Lastly, the trial court found that it was DeYurre's March 6, 2014 notice to Litman of the bankruptcy proceeding that commenced the thirty-day cure period; D & E's actions were wholly inconsistent with its position that the contract was terminated; and Dr. Vitto relied on D & E's actions to his detriment.

D & E's actions included: (1) DeYurre's email to defendants David Cooper and Ramos in April 2014 asking whether they wanted to extend the closing date (neither Dr. Vitto, nor his counsel, were copied on this email); (2) the email from Litman to Venditto and Venditto's response, which indicated that the bankruptcy trustees would consider allowing the sale to proceed; (3) D & E's continued efforts to resolve the title defect in the bankruptcy proceeding; and (4) D & E's failure to return Dr. Vitto's deposit.

For these reasons, the trial court concluded that D & E, David Cooper, and Ramos failed to exercise reasonable diligent efforts in good faith to provide Dr. Vitto with marketable title, and therefore, entered judgment in Dr. Vitto's favor for his specific performance claim.

STANDARDS OF REVIEW

A trial court's findings of fact shall not be disturbed unless they are clearly erroneous. See Emaminejad v. Ocwen Loan Servicing, LLC, 156 So.3d 534, 535 (Fla. 3d DCA 2015). A trial court's legal conclusions, however, are subject to de novo review. Verneret v. Foreclosure Advisors, LLC, 45 So.3d 889, 891 (Fla. 3d DCA 2010). The interpretation of a contract is a question of law which is also subject to de novo review. Kissman v. Panizzi, 891 So.2d 1147, 1149 (Fla. 4th DCA 2005). For present purposes, we must consider whether D & E exercised reasonable diligence to clear title, and "[w]hat constitutes reasonable diligence is nearly always a mixed question of law and fact." Blackmon v. Hill, 427 So.2d 228, 230 (Fla. 3d DCA 1983).

ANALYSIS

I. Did the Contract Expire by its Own Terms?

D & E contends that the trial court erred by determining that D & E was estopped from relying on the contract's language to argue that the contract expired by its own terms. For the reasons that follow, we disagree.

A. Marketable Title

D & E argues that the contract expired by its own terms because D & E could not provide marketable title and Dr. Vitto did not timely avail himself of the provision in the contract that allowed him to extend the closing date. D & E further contends that under the contract, the failure to deliver marketable title does not constitute a breach if D & E undertook a "reasonable diligent effort" to provide marketable title prior to the date of the closing. In support of its position, D & E cites to paragraph 15(b) of the contract, which states, in relevant part as follows:

SELLER DEFAULT: If for any reason other than failure of Seller to make Seller's title marketable after reasonable diligent effort, Seller fails, neglects or refuses to perform Seller's obligations under this Contract, Buyer may elect to receive return of Buyer's Deposit without thereby waiving any action for damages resulting from Seller's breach and, pursuant to Paragraph 16, may seek to recover such damages or seek specific performance.

Nothing in this paragraph suggests that failure to deliver marketable title is excepted from constituting a breach. Instead, the contract merely provides that if the seller defaults, and the default is for a reason other than failing to deliver marketable title after the seller has made a reasonable diligent effort to cure the title defect, the buyer may elect a refund of his/her deposit without waiving a claim for specific performance or damages. Thus, failure to deliver marketable title may still constitute a breach of the contract, and if the seller fails to make a reasonable diligent effort to cure the defect, the buyer may seek specific performance.

B. Cure Period

The trial court correctly found, and the record supports, that the 30-day cure period commenced on March 6, 2014 and ended on April 7, 2014. The bankruptcy case rendered the title unmarketable, and DeYurre's March 6, 2014 notice to Litman commenced the 30-day cure period, thus, relieving Dr. Vitto from the March 30, 2014 closing date unless the title defect was cleared by March 30, 2014. Because D & E failed to clear the title defect, Dr. Vitto clearly had no obligation to close on March 30, 2014. See, e.g., Jay Vee Realty Corp. v. Jaymar Acres, Inc., 436 So.2d 1053, 1055 (Fla. 4th DCA 1983) (finding that a defendant must have complied with, or offered to comply with, all of the terms of the contract in order to properly raise delay as a defense to specific performance).

Paragraph 18(A)(ii) of the contract provides, in part, as follows:

If Seller is unable to cure defects within Cure Period, then Buyer may, within 5 days after expiration of Cure Period, deliver written notice to Seller: (a) extending Cure Period for a specified period not to exceed 120 days within which Seller shall continue to use reasonable diligent effort to remove or cure the defects ("Extended Cure Period"); or (b) electing to accept title with existing defects and close this Contract on Closing Date ...; or (c) electing to terminate this Contract and receive a refund of the Deposit, thereby releasing Buyer and Seller from all further obligations under this Contract. If after reasonable diligent effort, Seller is unable to timely cure defects, and Buyer does not waive the defects, this Contract shall terminate, and Buyer shall receive a refund of the Deposit, thereby releasing Buyer and Seller from all further obligations under this Contract.

The record reflects that the parties were working together to clear the title defect well after the closing date had passed. However, on June 3, 2014, when D & E failed to clear the title defect and Dr. Vitto concluded that D & E was not making a reasonable diligent effort to do so, Dr. Vitto sent a notice, through counsel, extending the cure date for 120 days. DeYurre never objected or responded to this notice.

The trial court concluded that the contract did not automatically terminate on April 7, 2014, when Litman failed to extend the cure period because D & E: (1) did not, either by providing notice to Dr. Vitto or by its actions, terminate the contract; (2) had not used reasonable diligent efforts to cure the defect; and (3) D & E could not use its own failure to cure the title defect as grounds for relieving it of its obligations under the contract. Further, it is clear that Dr. Vitto believed that the cure period had been extended and was relying on D & E's representations that it was trying to cure the title defect. In sum, the extension of the cure period was for the benefit of D & E to provide D & E with more time to cure the defect. Because D & E failed to cure the title defect despite being given ample time to do so, the trial court properly granted Dr. Vitto's claim for specific performance.

C. Estoppel

D & E also argues that reversal is warranted because Dr. Vitto failed to prove that he justifiably relied on D & E's silence or omissions, and that this reliance was intended or reasonably anticipated by D & E. We disagree.

The primary purpose of the doctrine of equitable estoppel is to prevent a party from profiting from his or her own wrongdoing. Major League Baseball v. Morsani, 790 So.2d 1071, 1078 (Fla. 2001). A party's own wrongful act cannot serve as the basis for a claim of equitable estoppel against another party. Barnett & Klein Corp. v. President of Palm Beach-A Condo., Inc., 426 So.2d 1074, 1075 (Fla. 4th DCA 1983). Here, D & E ignores the fact that the express terms of the contract required that the running of the cure period and the extended cure period be predicated on the seller's efforts to clear title. The trial court found, and the record supports, that D & E failed to make a reasonable diligent effort to cure the title defect, and thus, the trial court correctly concluded that D & E was precluded from claiming that its own failure to clear title was grounds for relieving it from its obligations under the contract.

In its findings of fact and conclusions of law, the trial court relied on Kubicek v. Way, 102 So.2d 173 (Fla. 2d DCA 1958). In Kubicek, a vendor contracted to sell 600 acres of land that he did not yet own. With the knowledge that he did not yet own the land, and unsure of whether he would be able to acquire all of the land within the requisite time period, the vendor included an "out" clause that rendered the contract void if the vendor could not convey the full 600 acres. Id. at 174. The vendor was ultimately unable to acquire the total acreage, so he sought to cancel the contract. The vendee sued for specific performance as to the acreage that the vendor did actually own. Id. at 173. The Second District Court of Appeal concluded that because the clause in the contract regarding title defects was put in place for the benefit of the buyer, the seller could not rely on the avoidance clause to claim that the contract was terminated due to his own inability to render the title marketable. Id. at 173-75. We agree with the trial court's application of the holding in Kubicek and its finding that D & E was precluded from using its own failure to cure the defect to establish that Dr. Vitto was not entitled to specific performance.

We also note that D & E has taken materially inconsistent positions as to when the contract allegedly terminated. At trial, D & E argued that the contract terminated on March 31, 2014. However, D & E's actions during 2014-2015 are inconsistent with its position that the contract had terminated in March 2014.

For instance, when Litman emailed D & E's attorney, DeYurre, on April 1, 2014, inquiring as to whether D & E wished to extend the closing date, DeYurre did not respond that the contract had terminated and thus, no extension was necessary. Instead, DeYurre contacted D & E and asked D & E whether D & E wished to extend the closing date or whether it wanted to wait and see if Dr. Vitto would walk away. As noted by the trial court, if D & E was under the impression that the contract had already terminated on March 31, then there would not have been a contract from which Dr. Vitto could walk away. Similarly, with respect to the June 3, 2014 email from Litman to D & E wherein Litman invoked the cure period on behalf of Dr. Vitto, DeYurre did not respond that the contract had already terminated. Further, after speaking to Venditto, the bankruptcy attorney, Litman sent the updated title commitments to both Venditto and DeYurre. Nothing in the record suggests that either one responded by questioning why Litman was forwarding these documents as the contract had terminated. In fact, on June 18, Venditto responded by informing Litman that the trustees in the bankruptcy proceedings were considering whether to allow the sales of the units to proceed. Lastly, when Litman wrote to Venditto on September 29, 2014 requesting an update on the status, Venditto forwarded the email to DeYurre to respond. In response, DeYurre did not take the position that the contract had already terminated or that the contract was unenforceable. Instead, he sent an email to D & E stating that he would prepare cancellation notices. Logically, as noted by the trial court, there would be no need to cancel the contract if the contract had already terminated.

Lastly, we note that D & E and Dr. Vitto, through their respective counsels, engaged in multiple discussions as to the efforts being made in order to clear title. During these discussions, D & E conducted itself as though the contract was in full force and effect, and as if it fully intended to close on the sale of the properties. Thus, the record supports the trial court's finding that Dr. Vitto relied on D & E's actions to his detriment by, among other things, not moving forward with the purchase of another property, as well as incurring both the time and expense of pursuing his rights under the contract for several years.

I. Reasonable Diligent Efforts

D & E contends that the trial court erred by finding that D & E failed to use reasonable diligent efforts to clear title. Specifically, D & E claims that it was not required to undertake "extraordinary efforts or expenditures" in order to clear title. These arguments likewise fail to persuade.

The trial court's findings were based, in part, on D & E's actions vis-à-vis the bankruptcy proceedings. The record supports the trial court's conclusion that D & E "did not in any way exercise good faith, or reasonably diligent efforts to provide Dr. Vitto with marketable title" and that "[D & E] did not use diligence in pursuing reasonable efforts to clear title attendant to the [bankruptcy case]." We agree with the trial court that merely filing a motion to dismiss does not constitute reasonable diligent efforts to clear title, especially in light of the bankruptcy court's suggestion that it would have entered a stay if asked to do so.

The trial court's findings are also supported by the holding in Galt View Apartments, Inc. v. Fazio, 490 So.2d 1005 (Fla. 4th DCA 1986). At issue in Galt View was the purchase of a co-op apartment building. There, the buyer brought an action for specific performance, and the trial court found that the seller failed to make a diligent good faith effort to satisfy a condition precedent contained in the contract. Id. at 1006. The contract required the seller to obtain, among other things, an approval from the Department of Housing and Urban Development ("HUD"). The seller submitted an application to HUD, however, it was rejected. Id. The seller claimed that the filing of the application was sufficient to comply with its obligations. However, evidence produced at trial demonstrated that the seller had declined several options for obtaining the approval. Id. at 1008.

Similarly, in the instant case, although D & E filed a motion to dismiss the bankruptcy case, D & E did not even mention the properties, nor did it request expedited consideration of its motion to dismiss. D & E also completely ignored the bankruptcy judge's invitation to identify any assets it believed it had a right to possess and to move for a stay, which the bankruptcy judge advised D & E it would grant. A stay could have resulted in a removal of the properties from the bankruptcy proceeding and would have permitted the sale of units 2601 and 2603 to Dr. Vitto to proceed. As noted by the trial court: "A party seeking to utilize reasonable and diligent efforts to cure the title defect would have done what the bankruptcy court suggested and sought stay relief, or [other] types of relief.... It was unreasonable in this case for the Defendants to have failed to do so."

Here, D & E's actions call its intentions into question. The record reflects that D & E admitted that it entered into the contract with Dr. Vitto in order to avoid the pending foreclosure sale of unit 2601, and that D & E used the contract to delay the foreclosure sale for months. Once the bankruptcy proceedings were initiated, the foreclosure cases were stayed, and thus, D & E and the defendants no longer needed their contract with Dr. Vitto, the pending sales of the units, and Dr. Vitto's $170,000 deposit to prevent the foreclosure sale from occurring. In the interim, the defendants were offered more money for the subject properties than the sale price to Dr. Vitto. In fact, they admitted that the value of the units had gone up since the execution of the contract. This may explain DeYurre's non-responsiveness and suggestion that they "wait and see" if Dr. Vitto would simply walk away from the contract, and fully supports the trial court's conclusion that D & E failed to exercise reasonable diligent efforts to provide Dr. Vitto with marketable title.

III. Release of D & E's Obligations Under the Contract

Lastly, D & E contends that the trial court erred by concluding that D & E had not been released from its obligations under the contract because the deposit was never returned to Dr. Vitto. Section 18(A)(ii) of the contract provides, in part, as follows: "If after a reasonable diligent effort, Seller is unable to timely cure defects, and Buyer does not waive the defects, this Contract shall terminate, and Buyer shall receive a refund of the Deposit, thereby releasing Buyer and Seller from all further obligations under this Contract."

Because the trial court found that D & E failed to make a reasonable diligent effort, the contract did not terminate, D &

E was not released from its obligations under the contract, and Dr. Vitto was free to seek specific performance, rather than a return of his deposit. Section 18(A)(ii) predicates any release on a refund of the deposit to Dr. Vitto, and the record reflects that Dr. Vitto never sought nor received a return of his deposit. Thus, the trial court properly concluded that D & E continued to be bound by the contract.

CONCLUSION

We conclude that: (1) the contract did not expire by its own terms and that D & E was properly estopped from making such a claim; (2) D & E failed to use reasonable diligent efforts to deliver marketable title before the extended closing date or prior to the expiration of the contract; and (3) D & E failed to comply with the contract's requirements for a release of its obligations. Accordingly, we affirm the trial court's order granting Dr. Vitto's claim for specific performance.

Affirmed.

ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED WITHIN FIVE DAYS THEREAFTER.


author: LAMBERT, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. B.Y., Father of C.Y., a Child, Appellee.
    Case No. 5D18-2703
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 29, 2018
    Kelley Schaeffer, of the Department of Children and Families, Bradenton, for Appellant.
    Charles D. Jamieson, of The Law Office of Charles D. Jamieson, P.A., West Palm Beach, for Appellee.
    Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Guardian ad Litem Program.
   LAMBERT, J.

The Department of Children and Families ("DCF") appeals the trial court's final order dismissing its petition for dependency at arraignment. We previously stayed this order, and as explained below, we now reverse and remand for further proceedings.

B.Y. ("Father") is the father of C.Y., a two-year-old child ("Child"). Father, Child, and Child's mother all reside in Orange County, Florida. On July 16, 2018, following an affidavit and petition filed by DCF, the trial court entered an emergency shelter order, finding that probable cause existed to shelter Child because Child was vulnerable and at imminent risk for prospective abuse by Father. The order precluded Father from living in the same house with Child. A Guardian ad Litem ("GAL") was also appointed to act on behalf of Child.

On July 26, 2018, DCF filed a dependency petition. That same day, the court held an arraignment. At this hearing, Father and Child's mother, through their respective attorneys, made oral motions to the court to dismiss the dependency proceeding. Neither parent contended that the dependency petition was legally insufficient. Rather, both argued that the petition should be dismissed because a separate dependency proceeding was already pending in Palm Beach County against Father regarding his alleged abuse of another minor child that he had with a different woman. The trial court, without addressing the sufficiency of the pleading, entered the order under review dismissing the case, discharging the GAL and counsel, and "terminat[ing]" its jurisdiction.

DCF argues on appeal that the trial court violated both its due process rights and those of Child in dismissing the action without proper notice and without making a separate determination as to whether dismissal of the dependency proceeding was in Child's best interest. See B.Y. v. Dep't of Child. & Fams. , 887 So.2d 1253, 1256 (Fla. 2004) (recognizing that "[t]he courts are charged with the duty of ensuring that the best interests of the children are advanced" (citing In re Adoption of Doe , 543 So.2d 741, 745 (Fla. 1989) ) ). The GAL filed a separate brief agreeing with DCF that the court erred in dismissing the case without considering the best interest of Child. The GAL separately argued that although it may eventually be appropriate for the court to consider transferring the case to another circuit, there was no present or justifiable basis for an outright dismissal of the proceeding at arraignment where the court clearly had jurisdiction over both parents and Child, who all reside in Orange County.

We begin with the basic premise that "[a]ll procedures in a dependency case must comport with due process principles," Dep't of Child. & Fams. v. T.S. , 154 So.3d 1223, 1226 (Fla. 4th DCA 2015) (quoting E.G-S. v. Dep't of Child. & Fam. Servs. , 113 So.3d 77, 79 (Fla. 2d DCA 2013) ), and that "[w]hen due process is denied, fundamental error occurs." Id. (citing Weiser v. Weiser , 132 So.3d 309, 311 (Fla. 4th DCA 2014) ). Procedural due process requires that parties have "fair notice and a real opportunity to be heard." Id. (quoting C.K. v. Dep't of Child. & Fam. Servs. , 88 So.3d 975, 977 (Fla. 2d DCA 2012) ). In the instant case, the parties were before the court for an arraignment. At arraignment, the parent or legal custodian of the child may admit, deny, or consent to findings of dependency as alleged in the petition. See § 39.506(1) - (2), Fla. Stat. (2018). Depending on the responses given, the court will then hold a disposition hearing within fifteen or thirty days of the arraignment. Id.

Here, there was nothing that would have placed DCF on notice that an apparently dispositive motion to dismiss would be raised at arraignment and thereafter immediately considered by the court. Accordingly, because we conclude that DCF and Child were prejudiced by not being provided with their due process rights of notice and a meaningful opportunity to prepare for and be heard on the parents' motions to dismiss the dependency petition, we reverse the order of dismissal with directions to reinstate the petition.

REVERSED and REMANDED for further proceedings consistent with this opinion.

EISNAUGLE and HARRIS, JJ., concur.

      As previously stated, the GAL recognized that under some circumstances a trial court has the authority to transfer a juvenile case. Florida Rule of Juvenile Procedure 8.205(b) provides, in pertinent part, that:
      The court may transfer any case after adjudication, when adjudication is withheld, or before adjudication where witnesses are available in another jurisdiction, to the circuit court for the county in which is located the domicile or usual residence of the child or such other circuit as the court may determine to be for the best interest of the child and to promote the efficient administration of justice.
      We take no position on whether or not this case should be transferred to Palm Beach County. If raised below, then all parties must be provided with fair notice and a reasonable opportunity to be heard on any possible transfer.


author: TORPY, J.

text:
    Zachary LINVILLE, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1975
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 29, 2018
    Zachary Linville, Wewahitchka, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee A. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

We withdraw our opinion in Linville v. State , 251 So.3d 352 (Fla. 5th DCA 2018), and substitute this opinion in its place.

By sworn application, Petitioner, an inmate at Gulf Correctional Institution, seeks a belated appeal from an order denying his motion for postconviction relief. In his petition, he asserts that "he timely provided a Notice of Appeal to officials for mailing, and the docket indicates that it was never received." Along with his petition, Petitioner furnished a copy of a notice of appeal bearing a dated stamp reflecting that the document had been "[p]rovided to Gulf Mailroom." The stamp purports to bear the "inmate's initials." The date stamped on the notice is well within the thirty-day appeal period following rendition of the challenged order. The bottom corner of the notice states "Appeal forms package," indicating that the form might have been provided to Petitioner by a legal service organization or prison officials. The form contains blank spaces that are completed in handwriting. In substance, the notice of appeal is identical to Florida Rule of Appellate Procedure Form 9.900(a). It contains a certificate of service that lists the Office of the Attorney General and Office of the State Attorney, with spaces for the insertion of addresses for each. There is no space on the form for adding other parties to the certificate. A copy of the notice is attached to this opinion.

Upon request by this Court, Respondent filed a response to the petition, contending that it should be denied because the "certificate of service on the notice of appeal shows that the notice was mailed to the Office of the State Attorney and the Office of the Attorney General, but not to the lower court clerk." Although Petitioner asserted that his notice of appeal was timely under the "mailbox rule," Respondent did not address the effect of that rule or otherwise respond to Petitioner's assertion. We originally, erroneously, denied the petition but now hold that the petition is well-taken and should be granted.

Because Petitioner is a pro se inmate, court filings are effected by delivery to prison officials for mailing under the mailbox rule. Haag v. State , 591 So.2d 614, 617 (Fla. 1992). The mailbox rule was first adopted by the United States Supreme Court in Houston v. Lack , 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), and is now codified at Florida Rule of Appellate Procedure 9.420(a)(2). It was devised to mitigate the disadvantages of unrepresented, incarcerated litigants. The Houston Court observed that these litigants, unlike other litigants, "cannot personally travel to the courthouse" to verify their notices' filing. 487 U.S. at 270-71, 108 S.Ct. 2379. As our highest court further observed, while other litigants may choose to trust the "vagaries of the mail," inmates have no choice but to rely upon filing of such documents through the mail system. Id. at 271, 108 S.Ct. 2379. In devising the rule, the Supreme Court assumed that prisons maintain logs reflecting the date court documents are received from inmates for mailing. See id. at 275, 108 S.Ct. 2379. Accordingly, it crafted what it labeled a "bright-line" rule to reduce or eliminate the need for burdensome evidentiary hearings involving disputes between inmates, prison officials, and others in the delivery chain concerning any failure in the transmittal and docketing process. See id.

Under the mailbox rule, a document is "deemed filed" when it is delivered to prison officials, as evidenced by the date stamp on the inmate's copy. Quilling v. Price , 894 So.2d 1061, 1063 (Fla. 5th DCA 2005) ; see also Fla. R. App. P. 9.420(a)(2)(A). When the prison or jail does not have a system for recording the date that legal mail is delivered to prison officials for mailing, the mailbox rule is modified to provide that the date on the certificate of service is the presumptive date of filing. Fla. R. App. P. 9.420(a)(2)(B) ; Thompson v. State , 761 So.2d 324, 326 (Fla. 2000). Importantly, this case does not involve the latter circumstance. Accordingly, the date stamped by the prison official on the face of Petitioner's copy of the notice of appeal is the determinative date here, and the certificate of service has no bearing on when the notice of appeal in this case was filed.

Here, Respondent did not dispute the authenticity of Petitioner's copy of the notice. Nor did Respondent controvert the sworn assertion that the notice was delivered for mailing on that date. Accordingly, the date affixed to the notice is the date of filing, irrespective of when or even whether the notice was ultimately received by the lower court. Rozar v. State , 701 So.2d 1201, 1202 (Fla. 5th DCA 1997). Although the reason the notice here never made its way to the clerk's docket cannot be discerned from this record, it makes no difference who in the delivery chain was at fault because the "bright-line" rule removes the "vagaries" of mail transmittal from the analysis so that the inmate is not disadvantaged by his inmate status. In essence, the prison is the de facto clerk's office for purposes of this rule, affording the incarcerated litigant the same option of verified hand-delivery as any non-incarcerated litigant. Houston , 487 U.S. at 271, 108 S.Ct. 2379.

Respondent presents its sole argument-that the certificate of service was deficient in not naming the clerk-without citation to or discussion of the applicable filing and service rules and without case citations. The fallacy in the argument is in Respondent's failure to appreciate the distinct acts of filing and serving under those rules. Filing is generally governed by Florida Rule of Appellate Procedure 9.420(a). The most common method of filing is accomplished through electronic transmission to the clerk for those who have that technology available. Filing by pro se inmates is an exception to the general rule and is governed by rule 9.420(a)(2). Service is governed by rule 9.420(b)-(d) and, by incorporation, Florida Rule of Judicial Administration 2.516. Rule 2.516(a) dictates that service be effected on "each party ." (Emphasis supplied). Rule 2.516(f) provides that the certificate of service is to be used as "prima facie proof" that service of copies of the filing was effected in compliance with the rule. In the case of an appeal by a criminal defendant, the appropriate parties for service of copies of the notice of appeal are the State Attorney and Attorney General, as listed in the form used here by Petitioner. Fla. R. App. P. 9.140(b)(3).

Clearly, the clerk of court is not a party and service of a copy of the notice need not be transmitted to the clerk. Rather, the clerk is the repository and custodian of the original document, regardless of its form. Accordingly, the "prima facie proof" of service of a copy in the certificate need not list the clerk. In this case, the certificate of service fully complied with rule 9.140(b)(3).

Having concluded that the notice of appeal was timely filed under the mailbox rule and having concluded that the certificate of service did not need to list the lower court clerk, we grant the petition for belated appeal and direct the clerk of this Court to forward this opinion to the lower court, which shall serve as a timely filed notice of appeal.

PETITION GRANTED.

HARRIS, J., concurs.

EDWARDS, J., concurs in result only.

Attachment --------

      According to the Department of Corrections website, Petitioner is now incarcerated in Columbia Correctional Institution. To ensure no further delays in this appeal, our clerk shall direct a copy of this opinion to Petitioner at both institutions.

      The presumptions created by rule 9.420(a)(2) are, of course, rebuttable. For example, the state may refute the authenticity of the purported copy or the sworn allegations in the petition. In any event, the burden to overcome the presumptions created by the rule is placed on the state. Thompson , 761 So.2d at 326.

      We do not address rule 9.420(a)(2)(B), except to parenthetically note that the record in Thompson reveals that the certificate of service on the notice in that case only listed Mr. Thompson's trial lawyer. Indeed, we can discern no basis in the plain language of rule 9.420 for a different conclusion in a rule 9.420(a)(2)(B) case than the one we reach here. While Griffin v. Sistuenck , 816 So.2d 600 (Fla. 2002), was a rule 9.420(a)(2)(B) case wherein the certificate of service included the clerk, the necessity of including the clerk in the certificate of service was not an issue there.

      The fault could lie with the prison mail clerk, U.S. mail service, or even the lower court clerk's office mailroom or docketing personnel. It is unlikely that a burdensome evidentiary hearing involving all of these parties could ever solve the mystery, however, which illustrates the wisdom for the "bright-line" rule crafted by our highest court. We are aware of and have reviewed the administrative regulations regarding outgoing legal mail in correctional institutions. No contention is made here by Respondent that Petitioner failed to comply with these rules, and the stamped copy of the notice indicating that it was accepted for mailing would tend to negate any such assertion. Had Petitioner not complied with prison rules for mailing, the prison presumably would not have accepted the document and affixed its stamp. Surely, prison officials must have known that a court pleading containing the identity of the court and case number, delivered to it for mailing, must be transmitted to the very court identified in the style of the document, without regard to the certificate of service that lists the parties upon which copies were to be provided.

      A random review of ten notices of appeal recently filed by the state reveals that the state does not list the lower court in its certificates of service either. Presumably, that is because Florida Rule of Appellate Procedure 9.140(c)(3), which governs state-initiated appeals, only requires service upon the defendant or his attorney. Although the form certificate of service for pro se inmates has a minor variant to reflect delivery to prison officials for service upon the State Attorney and Attorney General, no rule states or even intimates that the clerk should be listed as an addressee in the certificate by either party to a criminal appeal. If the important right of appeal can be eviscerated by such a technicality, the technical requirement must be expressly and clearly prescribed. Nevertheless, by this discussion, we do not imply that had there been an error in the certificate of service, such an error or omission would render void a timely "filed" notice of appeal. Indeed, defects in such notices are generally not jurisdictional impediments absent some showing of prejudice to the adverse party. Ratner v. Miami Beach First Nat'l Bank , 362 So.2d 273, 274 (Fla. 1978). Here, Respondent undeniably received a copy of the notice as required by the rules and can advance no claim of prejudice.


author: Rowe, J.

text:
    Roy P. BOSTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5190
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Amit Agarwal, Solicitor General; Edward M. Wenger, Chief Deputy Solicitor General; and Christopher J. Baum, Deputy Solicitor General, Tallahassee, for Appellee.
   Rowe, J.

Roy P. Boston appeals his judgment and sentence for battery, asserting that the trial court erred by denying his motion for mistrial and by applying the wrong standard in ruling on his motion for Stand Your Ground immunity. We affirm the denial of the motion for mistrial without further comment. However, based on this Court's recent decisions in Commander v. State , 246 So.3d 1303 (Fla. 1st DCA 2018), and Edwards v. State , 257 So.3d 586, 2018 WL 4997631 (Fla. 1st DCA Oct. 16, 2018), we are constrained to reverse the trial court's ruling on the Stand Your Ground motion.

Before trial, the parties argued whether the 2017 amendment to the Stand Your Ground law, section 776.032(4), Florida Statutes, would apply to Boston's offense. Before the amendment, a defendant, at a pretrial evidentiary hearing, had to prove by a preponderance of evidence that he was entitled to Stand Your Ground immunity. Bretherick v. State , 170 So.3d 766, 775 (Fla. 2015). The amendment to the statute changed both the burden and quantum of proof required for establishing entitlement to immunity. Now, when a defendant raises a prima facie claim of Stand Your Ground immunity, the State must prove by clear and convincing evidence that the defendant is not entitled to immunity. § 776.032(4), Fla. Stat. (2017). Boston argued that this amendment to the Stand Your Ground law was procedural in nature and therefore applied retroactively to his 2016 offense.

The trial court rejected Boston's argument and concluded that the 2017 amendment was a substantive change in the law, and therefore, the amendment applied prospectively from the date of the enactment, over one year after Boston's offense. The court determined that Boston had the burden to show entitlement to immunity by a preponderance of evidence. After the defense rested, the trial court found that Boston failed to meet this burden and denied Boston's motion for immunity. The jury convicted Boston of battery, and this appeal followed.

Based on this Court's recent decisions in Commander and Edwards , where this Court determined that the 2017 amendment to the Stand Your Ground law applies retroactively, Boston is entitled to a new immunity hearing.

Commander , 246 So.3d at 1304 ; Edwards , 257 So.3d at 587, n.1, 2018 WL 4997631 at *1, n.1. See also Martin v. State , --- So.3d ----, 43 Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018) (holding that the 2017 amendment to section 776.032 is procedural in nature and therefore can be applied retroactively). But see Love v. State , 247 So.3d 609 (Fla. 3d DCA 2018) (applying the 2017 amendment prospectively after concluding it was a substantive change in the law and certifying conflict with Martin ), review granted , SC18-747, 2018 WL 3147946 (Fla. Jun. 26, 2018) ; Hight v. State , 253 So.3d 1137 (Fla. 4th DCA 2018) (agreeing with the Third District in Love ).

Accordingly, based on this Court's binding decisions in Commander and Edwards , we reverse and remand for the trial court to reconsider Boston's motion for immunity under the Stand Your Ground statute and the State's burden of proof under section 776.032(4), Florida Statutes (2017). Ordinarily, the merits of a motion to dismiss filed under Florida's Stand Your Ground law should be determined before trial at a pretrial evidentiary hearing because the central purpose of such a motion is for the defendant to seek immunity from trial. See Dennis v. State , 51 So.3d 456, 461-64 (Fla. 2010) (holding that where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should conduct a pretrial evidentiary hearing and decide the factual question of the applicability of statutory immunity); see also Satyanand v. State , 147 So.3d 662, 663 (Fla. 5th DCA 2014) ; Martinez v. State , 44 So.3d 1219, 1220 (Fla. 1st DCA 2010) ; Peterson v. State , 983 So.2d 27, 29 (Fla. 1st DCA 2008). Proceeding to trial before determining whether the defendant is entitled to immunity frustrates the purpose of the immunity provided for in the statute. However, here the parties stipulated that the trial court need not conduct the immunity hearing before trial, but could instead consider Boston's motion for immunity at trial. For this reason, on remand the trial court may rely on the evidence adduced at trial to determine whether the State met its burden under section 776.032(4), Florida Statutes (2017), or, in the alternative, hold a new evidentiary hearing.

AFFIRMED in part; REVERSED in part and REMANDED .

Wolf and Lewis, JJ., concur.


author: M.K. Thomas, J.

text:
    Andre Deshon JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4324
    District Court of Appeal of Florida, First District.
    November 30, 2018
    Andy Thomas, Public Defender, and Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   M.K. Thomas, J.

Andre Deshon Jenkins was found guilty of second-degree murder. A jury of his peers also concluded that during the commission of the offense, he discharged a firearm causing death or great bodily harm. In this direct appeal of his judgment and sentence, Jenkins raises five issues. We affirm but write to address his argument that the trial judge erred in denying his request for a new trial.

Jenkins asserts the trial court applied an incorrect standard to his request for a new trial by using a sufficiency-of-the-evidence analysis. The record does not support this contention. The trial court need not use "magic words" when ruling on a motion for new trial and the record must not indicate the trial judge applied the wrong standard in ruling on the issues raised in the motion. See Bell v. State , 248 So.3d 208 (Fla. 1st DCA 2018). This Court has reversed when the trial court "applied, or appeared to apply, the wrong standard." Id. at 209-10 (citing Palmer v. State , 196 So.3d 1289 (Fla. 1st DCA 2016) (reversing after trial court applied a sufficiency-of-the-evidence standard instead of weight-of-the-evidence standard); Spear v. State , 860 So.2d 1080 (Fla. 1st DCA 2003) (reversing because "the trial court's findings indicate that the court may have applied" the incorrect standard) ).

"Motions for judgment of acquittal and motions for new trial are decided under different standards." Bell , 248 So.3d at 209. The former test reviews the sufficiency of the evidence, while the latter "requires the trial court to weigh the evidence and determine credibility just as a juror would." Id. (citing Fergien v. State , 79 So.3d 907, 908 (Fla. 1st DCA 2012).

Here, the trial judge regarded Jenkins's motion for new trial as also raising argument for a judgment of acquittal. Because dual arguments were raised in the pleading, the applicable standards were weight-of-the-evidence and sufficiency- of-the-evidence, respectively. While a portion of the trial judge's oral rulings encompassed the specific phrase "sufficiency of the evidence," this was during discussion of a Texas case in which sufficiency of the evidence to convict was the sole issue. Gutierrez v. State , No. 04-00674-CR, 2010 WL 3443209, at *2, *5 (Tex. Ct. App. Sept. 1, 2010). The record also confirms the trial judge meticulously reviewed and commented on the evidence submitted at trial. Having two distinct legal issues before him, the trial judge correctly applied the evidentiary standards. As Jenkins has failed to meet his burden to demonstrate error on appeal, we affirm.

AFFIRMED .

Rowe and Kelsey, JJ., concur.


author: Jay, J.

text:
    Tony NAPOLI, Appellant, v. BUREAU OF STATE EMPLOYEE'S W/C CLAIMS/ THE DIVISION OF RISK MANAGEMENT, and Division of Risk Management, Appellees.
    No. 1D18-2437
    District Court of Appeal of Florida, First District.
    November 30, 2018 Rehearing Denied January 3, 2019
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch, P.A., Winter Park, and Stephen M. Armstrong of Stephen M. Armstrong, P.A., Jacksonville, for Appellees.
   Jay, J.

Claimant appeals an order of the Judge of Compensation Claims ("JCC") denying his motion to enforce a mediation agreement that the Employer/Carrier ("E/C") would provide "the requested bed." Instead of providing the brand of bed specified on the prescription-which was not incorporated by reference in the agreement-the E/C attempted to deliver a different brand. We affirm the JCC's finding that there was no meeting of the minds and, therefore, no agreement to enforce.

Claimant, as the party seeking to enforce the agreement, had the burden to prove that both parties meant the same thing when they formed their contract. Cheverie v. Geisser , 783 So.2d 1115, 1119 (Fla. 4th DCA 2001) ("The burden is on the 'party seeking judgment on the basis of compromise and settlement' to establish assent by the opposing party." (quoting Nehleber v. Anzalone , 345 So.2d 822, 822 (Fla. 4th DCA 1977) ) ). But Claimant was unable to convince the JCC that the agreement was founded on a meeting of the minds, because the JCC admitted and accepted parol evidence that the E/C thought the phrase "the requested bed" meant any bed satisfying the doctor's requirements as set forth in that doctor's deposition-which took place before the mediation, constituted an amendment to the physician's written prescription, and involved both parties' counsel.

Parol evidence is admissible to resolve a contract's ambiguity only where that ambiguity is latent. See generally Landis v. Mears , 329 So.2d 323, 325-26 (Fla. 2d DCA 1976) ("Florida courts have adhered to the distinction [between patent and latent ambiguities] and ordinarily allow parol evidence where there is a latent ambiguity and reject it where there is a patent ambiguity."). "[T]he fact that the parties 'read the same document and came to opposite, but equally reasonable conclusions, confirms the document's latent ambiguity.' " Quillen v. Quillen , 247 So.3d 40, 48 (Fla. 1st DCA 2018) (quoting Toussaint v. Toussaint , 107 So.3d 474, 479 (Fla. 1st DCA 2013) ). Given the timeline of events, the parties' readings of the phrase "the requested bed" were equally reasonable.

Accordingly, the JCC did not err in admitting, or relying on, parol evidence. That evidence supports the JCC's ruling.

AFFIRMED .

B.L. Thomas, C.J., and Bilbrey, J., concur.